Category: Essay
The “Section 122 Revolution” in Delaware Corporate Law and What to Do About It
Zachary J. Gubler
Marie Selig Professor of Law, Arizona State University, Sandra Day O’Connor College of Law.
Recently, the Delaware General Assembly amended Delaware’s corporate code to allow boards to delegate their decision-making powers to stockholders via contract. These amendments are significant because they effectively overturn a recent Delaware Chancery opinion. They’re also problematic, for two reasons: (1) because they are out of step with the best reading of Delaware corporate law—what…
Feb 2025
New Vision, Old Model: How the FTC Exaggerated Harms When Rejecting Business Justifications for Noncompetes
Alan J. Meese
Ball Professor of Law and Director, Center for the Study of Law & Markets, William & Mary Law School.
The Federal Trade Commission has rejected consumer welfare and the Rule of Reason—standards that drove antitrust for 50 years—in favor of a “NeoBrandeisian” vision. This approach seeks to enhance democracy by condemning abuses of corporate power that restrict the autonomy of employees and consumers, regardless of impact on prices or wages. Pursuing this agenda, the…
Jun 2024
A Common Law for the Age of Amici: How the Party-Presentation Principle Can Help Identify Binding Precedent
David S. Coale
Partner, Lynn Pinker Hurst & Schwegmann, LLP, Dallas, Texas.
Two recent Supreme Court cases suggest an additional dimension for the traditional test that distinguishes dicta from holding. In the first, United States v. Sineneng-Smith, the Ninth Circuit reversed a criminal conviction based on arguments made by amici appointed by that court. The Supreme Court then reversed 9-0, holding that the Ninth Circuit’s handling of…
May 2024
The Expansive ‘Sensitive Places’ Doctrine: The Limited Right to ‘Keep and Bear’ Arms Outside the Home
Julia Hesse & Kevin Schascheck II
Julia Hesse is the co-chair of Healthcare Group at Choate Hall & Stewart LLP. She is a graduate of the University of Pennsylvania Law School ’01 and the University of Pennsylvania Center for Bioethics ’01.
Kevin Schascheck is currently serving as a federal law clerk. No view expressed herein reflects the opinion or written work of the judge for whom he is clerking. He is a graduate of the University of Virginia School of Law ’22.
Julia Hesse & Kevin Schascheck II
Julia Hesse is the co-chair of Healthcare Group at Choate Hall & Stewart LLP. She is a graduate of the University of Pennsylvania Law School ’01 and the University of Pennsylvania Center for Bioethics ’01.
Kevin Schascheck is currently serving as a federal law clerk. No view expressed herein reflects the opinion or written work of the judge for whom he is clerking. He is a graduate of the University of Virginia School of Law ’22.
In Bruen, the Supreme Court struck down New York’s “may-issue” licensing regime, recognized the right to carry arms outside the home, and announced the historical analogue method to analyze the constitutionality of modern gun laws. In doing so, the Court did not disavow the ‘sensitive places’ doctrine announced in Heller. In response, New York and…
Jan 2024
Historical Appendix to “The Expansive ‘Sensitive Places’ Doctrine: The Limited Right to ‘Keep and Bear’ Arms Outside the Home”
Julia Hesse and Kevin Schascheck II
Julia Hesse and Kevin Schascheck II
The following is not intended to be an exhaustive list of laws providing locational or temporal restrictions on firearms, and instead represents the laws we identified in approximately 40-50 hours of research. These laws are gathered into categories. The same law may be listed in multiple categories (e.g., if a law restricted carriage or firing…
Jan 2024
How Did A Rogue 2011 IRS Instruction Produce A Nonsensical and Punitive AMT Investment Interest Expense Deduction Computational Formula and Nobody Knows It?
Jay Katz
Associate Professor of Instruction, University of South Florida
The Essay is organized as follows: Part I reveals the lack of any explanatory guidance or commentator attention to the 2011 IRS instruction apparent radical change to the AMT Computational Formula that is hiding in plain sight. Next, Part II examines the AMT Computational Formula prior to the TAMRA Amendment. Also included is a discussion…
Dec 2023
The Leadership Limitation on Persecutors and Terrorist Organizations
Josh A. Roth
J.D. Candidate, Cornell Law School, 2024.
The asylum system in the United States is a melting pot of political discourse, international relations, and novel questions of law. Among other legal requirements, an asylee bears the burden of showing (1) they were persecuted or have a well-founded fear of future persecution and (2) that the persecution was committed by the government or…
May 2023
Antitrust Remedies for Fissured Work
Brian Callaci & Sandeep Vaheesan
Chief economist, Open Markets Institute & Legal director, Open Markets Institute
Can parties control independent trading partners through contract? Antitrust law in the United States has confronted this question since its inception. From the 1940s through the 1970s, the Supreme Court generally held that corporations could not control the business decisions of distributors and suppliers using contracts, or vertical restraints in the parlance of antitrust. For…
Mar 2023
Anecdotes Versus Data in the Search for Truth About Multidistrict Litigation
Lynn A. Baker, Frederick M. Baron Chair in Law, University of Texas School of Law & Andrew Bradt, Professor of Law; Associate Dean of J.D. Curriculum & Teaching; University of California, Berkeley School of Law
A reply to Elizabeth Chamblee Burch & Margaret S. Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, 107 Cornell Law Review 1835 (2022). To read this Comment, please click here: Anecdotes Versus Data in the Search for Truth About Multidistrict Litigation
Jan 2023
Data Versus More Data in Multidistrict Litigation
Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law, University of Georgia School of Law
A reply to Lynn A. Baker & Andrew Bradt, Anecdotes in the Search for Truth About Multidistrict Litigation, 107 Cornell Law Review Online 249 (2023). To read this Comment, please click here: Data Versus More Data in Multidistrict Litigation
Jan 2023
An Alternative to Zombieing: Lawfare Between Russian and Ukraine and the Future of International Law
Jill Goldenziel
Professor, National Defense University-College of Information and Cyberspace. Ph.D., A.M., Government, Harvard; J.D. NYU Law; A.B. Princeton
Unlike zombies, Ukraine’s lawfare strategy is very much alive. Ukraine’s lawsuits harm Russia’s reputation in the international community and give states legal ammunition to sanction Russia. Lawfare between Russia and Ukraine will change the future of international law and armed conflict. To explain how and why, this paper proceeds in four parts. Part I briefly…
Jan 2023
Rhetoric and the Creation of Hysteria
Ediberto Román, Professor of Law, Florida International University & Ernesto Sagás, Professor of Ethnic Studies, Colorado State University
The anti-immigrant tenor of the debate leading to the need for a wall, the frustrations relating to it, and its resulting political opportunism are not limited to the United States. Throughout the Western Hemisphere and Europe, political leaders are using similar rhetoric of the immigrant “other” in order to rally the base, deflect criticism, and…
Dec 2022
“Shake the Hand that Feeds You”: Creating Custom Food Safety Certifications for Farm to School Programs
Lauren Tonti, M.P.H Harvard T.H. Chan School of Public Health, J.D. Case Western Reserve University School of Law, B.A. Wellesley College
The United States is home to approximately 14.4 million obese children. Federal government encouragement that schools “purchase unprocessed agricultural products, both locally grown and locally raised, to the maximum extent practicable and appropriate” with federal funds has fallen upon the receptive ears of administrators, whose schools often feed America’s youth two out of three meals…
Aug 2022
Scientific Evidence: Grand Theories and Basic Methods
Curtis E.A. Karnow, Judge of The California Superior Court (County of San Francisco)
California law requires judges to admit expert scientific testimony without resolving scientific controversies, which are left to juries. But case law does not provide a definition of “science” verses inadmissible pseudoscience. And typically juries are asked to resolve ‘scientific’ controversies based on studies never provided to them. The Essay discusses three common definitions of science,…
Aug 2022
Harming Competition and Consumers Under the Guise of Protecting Privacy: An Analysis of Apple’s iOS 14 Policy Updates
D. Daniel Sokol, Carolyn Craig Franklin Chair in Law and Business, USC Gould School of Law & Feng Zhu, Professor of Business Administration, Harvard Business School
This Essay identifies how Apple’s iOS 14 strategy serves to reinforce Apple’s dominance over the mobile ecosystem by significantly reducing—if not effectively precluding—the ability of third-party apps to create value through personalized advertising. This move to stifle competition is consistent with Apple’s established track record of engaging in conduct that protects and extends the dominance…
Jul 2022
Countering the Big Lie: The Role of the Courts in the Post Truth World
Edward D. Cavanagh, Professor of Law, St. John’s University School of Law
This Essay analyzes the role of the courts in handling Trump’s election lie. It argues that the courts were certainly correct in giving short shrift to Trump’s lawsuits, but further that the courts should have done more than simply dismiss Trump’s claims. Had the courts aggressively utilized existing tools to identify and punish prosecution of…
Jun 2022
Localizing Minimum Wage Laws: A Rural Perspective
Travis S. Andrews, J.D., University of Virginia, 2016
Since launching in 2012, the Fight for 15 movement has successfully lobbied for a $15 per hour minimum wage in many urban localities.[1] Today, more than 50 localities have their own minimum wage laws that set a rate higher than state or national pay floors.[2] Two of the primary justifications for raising the minimum wage…
Jun 2022
Racial Reckoning With Economic Inequities
Lisa M. Fairfax, Alexander Hamilton Professor of Business Law, George Washington University School of Law
In response to the racial reckoning sparked by the police killings of George Floyd, Breonna Taylor and other unarmed Black men and women during the summer of 2020, many corporations publicly expressed their commitment to not only grapple with racial inequities in the economic sphere, but also increase racial diversity on their board, with particular…
Feb 2022
Toward a Law and Politics of Racial Solidarity
Luis Fuentes-Rohwer, Class of 1950 Herman B. Wells Endowed Professor of Law, Indiana University Maurer School of Law
Guy-Uriel Charles, Edward & Ellen Schwarzman Professor of Law, Co-Director, Center on Law, Race, and Politics, Duke Law School
The killings of George Floyd, Michael Brown, Trayvon Martin, and others have occurred under different factual circumstances, in different states, at the hands of both state and private actors, and have engendered different levels of outrage on the basis of their perceived egregiousness. Collectively and cumulatively, they have forced Americans to, once again, wrestle with…
Feb 2022
The Inevitability and Desirability of the Corporate Discretion to Advance Stakeholder Interests
Einer Elhauge, Petrie Professor of Law, Harvard Law School
In The Illusory Promise of Stakeholder Governance, Lucian Bebchuk and Roberto Tallarita offer a vigorous defense of the view that corporate leaders should have a legal duty to maximize only shareholder value.11. Lucian A. Bebchuk & Roberto Tallarita, The Illusory Promise of Stakeholder Governance, 106 CORNELL L. REV. 91 (2020). They define “corporate leaders” as…
Feb 2022
Shareholderism Versus Stakeholderism–A Misconceived Contradiction
Colin Mayer, Peter Moores Professor of Management Studies, Saïd Business School, University of Oxford
This Essay critiques an assessment by Lucian Bebchuk and Roberto Tallarita of the relative merits of shareholder and stakeholder governance. In “The Illusory Promise of Stakeholder Governance,” Bebchuk and Tallarita argue that stakeholder governance is either nothing more than enlightened shareholder value, or it imposes unmanageable trade-offs on directors of companies. But trade-offs are ubiquitous…
Feb 2022
On the Promise of Stakeholder Governance: A Response to Bebchuk and Tallarita
William Savitt, Partner, Wachtell, Lipton, Rosen & Katz
Aneil Kovvali, Harry A. Bigelow Teaching Fellow & Lecturer in Law, University of Chicago Law School
Professor Bebchuk and his coauthor Roberto Tallarita have launched a broadside against recent efforts of business leaders, scholars, and lawyers to promote a corporate governance model that permits directors to take into account interests other than stockholders—a governance regime that authorizes directors to manage their corporations having in mind the interests not of stockholders alone,…
Feb 2022
Mitigating the PSLF Disaster: Building a Borrower-Friendly Student Loan Forgiveness Program
Michael Slomovics, J.D., Yale Law School, 2021
In 2007, Congress promised student loan forgiveness to our teachers, public defenders, nurses, and other public servants. The bargain was simple: spend ten years in public service and your debt will be eliminated. Unfortunately for borrowers, the program turned out to be a disaster, with loan forgiveness denial rates as high as 99%. Individuals frequently…
Nov 2021
Do Reason-Based Abortion Bans Prevent Eugenics?
Sital Kalantry, Associate Professor of Law, Seattle University School of Law
This Essay discusses a lesser‑known case through which Roe v. Wade could be gutted—by declaring reason‑based bans constitutional. If the Court finds that one reason‑based abortion ban is constitutionally permissible, it will open the door for states to destroy the fundamental right to abortion by enacting many more reasons for why abortion is impermissible.
Oct 2021
Protecting Pregnancy
Jennifer Bennett Shinall, Professor of Law, Vanderbilt Law School
Laws to assist pregnant women in the workplace are gaining legislative momentum, both at the state and federal levels. Last year alone, four such laws went into effect at the state level, and federal legislation advanced farther than ever before in the House of Representatives. Four types of legislative protections for pregnant workers currently exist—pregnancy…
Aug 2021
Chevron as Construction
Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center
Cass R. Sunstein, Robert Walmsley University Professor, Harvard University
In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand…
Jul 2020
Legitimate Interpretation—Or Legitimate Adjudication
Thomas W. Merrill, Charles Evans Hughes Professor, Columbia Law School
Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much better account of actual practice. This Article argues that if…
Jul 2020
Introduction: Reviving the Thirteenth Amendment
Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law.
Amendment XIII Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. What has been the legal significance…
Sep 2019
The Thirteenth Amendment: An Epilogue on the Questions of Reach, Freedom, and Equality
Michele Goodwin
Michele Goodwin
The Banality of Slavery The Thirteenth Amendment served as a corrective to a vile, but strangely normalized, practice—human slavery. An institutionalized practice so common that at one point 40% of New York’s inhabitants were slaves.11. Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Modern Incarceration, 104 CORNELL L. REV. 899, 1021(2019). Thus, on one hand, slavery’s reach…
Sep 2019
New Textualism and the Thirteenth Amendment
Leah M. Litman, Assistant Professor of Law, University of California Irvine School of Law.
Leah M. Litman, Assistant Professor of Law, University of California Irvine School of Law.
Michele Goodwin’s piece raises important questions about whether troubling modern-day labor practices in jails and prisons are consistent with the Thirteenth Amendment.11. Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 CORNELL L. REV. 899 (2019) In Goodwin’s telling, the ratification of the Thirteenth Amendment formally ended the institution of slavery, but the Amendment…
Sep 2019