Category: Issue
Asian Americans and the Harm of Exceptionalized Inclusion
Kaiponanea T. Matsumura & Erin Suzuki
Professor of Law and William M. Rains Fellow, Loyola Law School, Los Angeles. Associate Professor of Literature and Asian American Studies, University of California, San Diego. The authors contributed equally to this Article and are listed alphabetically by last name. We thank Shirin Bakhshay, Robert Chang, Gabriel “Jack” Chin, Tristin Green, Vinay Harpalani, Ariel Jurow Kleiman, Solangel Maldonado, Julia Mendoza, Kimberly West-Faulcon, and Tiffany Yang for their thoughtful feedback. We also thank the editors of Cornell Law Review for their careful and constructive work on this Article.
The use of race in college admissions is contentious not only because elite colleges are a gateway to good careers, but because the colleges themselves symbolize belonging at the highest levels of American society. In this sense, the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (“SFFA”)…
Aug 2025
Modern Cyber Warfare and International Law
Esther In
J.D., 2026. Cornell Law School. Thank you to Professor Sarah Kreps for inspiring this line of research, and to the Cornell Law Review Notes Offce for lending their talent to this Note.
In an increasingly technological, interconnected, and digital world, advancements in technology pose significant legal challenges. “Grey zone” conflicts—such as in cyber warfare, election interference, political subversion, and proxy wars—share a common characteristic: exploiting gaps in international law. These conflicts allow States to leverage legal ambiguities as tools in their strategic planning, enabling them to pursue…
Aug 2025
Undue Computational Experimentation: Can In Silico Experiments Allows Genus Claims to Survive?
Gregory Jameson
J.D., Cornell Law School, 2025; Ph.D. (Biophysics), The Ohio State University, 2022. Thank you to Profs. Joanna T. Brougher and Oskar Liivak for inspiring this line of legal research and to Prof. Steffen Lindert for seeding the scientific knowledge in this idea.
U.S. courts have, time and again, struck down genus claims for undue experimentation. The most recent blow came last year in Amgen v. Sanofi, when the Supreme Court affirmed the lower court’s ruling that Amgen’s patent on antibodies with a specific target was invalid for lack of enablement. In that ruling, the Court invoked the…
Aug 2025
When Hard Cases Make Bad Law: A Theory of How Case Facts Affect Judge-Made Law
Sepehr Shahshahani
Associate Professor, Fordham Law School. I thank the participants in the Harvard/Yale/Stanford Junior Faculty Forum and the Fordham Law Faculty Workshop for their discussion of this work. I am also grateful for the helpful comments of Aditi Bagchi, Scott Baker, Deborah Beim, Bob Bone, Pam Bookman, Rick Brooks, Bennett Capers, Michael Carrier, Courtney Cox, Nestor Davidson, Debby Denno, Josh Fischman, Janet Freilich, Barry Friedman, Ezra Friedman, John Goldberg, William Hubbard, Clare Huntington, Lewis Kornhauser, Jae Lee, Ethan Leib, Ann Lipton, Gaurav Mukherjee, John Pfaff, Susan Scafdi, Jed Shugerman, Henry Smith, Rebecca Tushnet, Maggie Wittlin, and Ben Zipursky. Finally, I thank Joe Palandrani, Miles Patton, and Hooman Yazdanian for excellent research assistance.
“Hard cases make bad law” is one of the most famous aphorisms in Anglo-American law. Its insight is that when strict application of a generally sound law would impose a special hardship on someone, a court may be tempted to distort the law to avoid the hardship. Scholars have long debated the meaning and truth…
Aug 2025
(Non)Police Brutality
Shawn E. Fields
Professor of Law, California Western School of Law. Many thanks to the brilliant minds who have provided feedback on aspects of this project, including Bobbi Jo Boyd, Tony Ghiotto, Gustavo Ribeiro, Joanna Schwartz, Erin Sheley, Christopher Slobogin, and Daniel Yeager. I beneftted greatly from feedback at presentations at the Southeastern Association of Law Schools, University of Oregon School of Law, University of Kentucky Rosenberg School of Law, University of Tennessee Knoxville School of Law, and Chapman Fowler School of Law. I extend my deepest gratitude to Noël Harlow, whose support and encouragement made this Article possible. All errors are my own.
Municipalities increasingly rely on nonpolice public safety experts—from substance abuse counselors and mental health interventionists to homeless outreach teams and violence interrupters—to address safety issues once solely within the purview of armed police. These “alternate responders” aim to resolve public safety concerns with less unnecessary conflict, violence, and death. But what happens when these nonpolice…
Aug 2025
Treating Each Applicant as an Individual in Students for Fair Admissions v. Harvard and its Key Precedents
Jiayu Liu
J.D., Cornell Law School, 2024; B.S.S., Political Science and Economics, University of Hong Kong, 2017. The author would like to thank Professor Andrei Marmor for his comments and guidance. The author would also like to thank the editors of Cornell Law Review for preparing this Note for publication.
This Note argues that the Supreme Court’s shifting attitude towards race-conscious school admissions can be best understood by making sense of the Court’s gradually elevated requirements of individuality in school admissions. Specifically, this note argues that (1) treating each applicant as an individual has been a constitutionally necessary, but not constitutionally sufficient, requirement since Bakke;…
May 2025
Blazing a Trail for the Enhanced Enforcement of Women’s Rights: Erga Omnes Partes Standing
Kathryn A. Donoho
J.D./L.L.M., Cornell Law School, 2026; M.B.A., Cornell Johnson Graduate School of Management, 2026; B.B.A. (Economics) and Bachelor of Accountancy, University of San Diego, 2017. A special thank you to Sandra L. Babcock, Elizabeth W. Brundige, Muna B. Ndulo, Radwa S. Elsaman, and Valeria Chiappini for your helpful feedback and insight on this Note.
The revolutionary principle of erga omnes partes standing can be utilized as an enforcement tool for the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”). Recent judicial developments within the International Court of Justice propel this argument forward, providing a novel solution to enforce international human rights obligations. While erga omnes…
May 2025
Tax Law as Muse
Brian Soucek
Professor of Law and Chancellor’s Fellow, University of California, Davis School of Law. Ph.D. (Philosophy), Columbia University; J.D., Yale Law School. The author beneftted from conversations on this topic with BJ Ard, Joseph Blocher, Gregory Day, Jonathan Neufeld, Robert Post, Daniel Rauch, Darien Shanske, Dennis Ventry, my co-panelists at the 2019 Annual Meeting of the Law and Society Association, the audience at the 2022 Pacifc Division Meeting of the American Society for Aesthetics, and participants at the Fourth Annual Art Law Works-in-Progress Colloquium at New England Law School and the Twelfth Annual Freedom of Expression Scholars Conference at Yale Law School. The author is also thankful for research help from David Holt and an unusual number of tireless research assistants: Heather Bates, Chester Dubov, Jon Morgan Florentino, Cobi Soda Furdek, Nicholas Mak-Wasek, Jane Martin, Jack Mensik, Sydney Simon, and Linda Tauscher. And the author is grateful to Dean Kevin Johnson, Dean Jessica Berg, and the UC Davis School of Law for supporting their (and my) work through the Martin Luther King, Jr. Hall Research Fund.
Jennifer C. Lena
Associate Professor of Arts Administration, Teachers College, Columbia University. Ph.D. (Sociology), Columbia University.
Admission charges at Chicago’s small music venues are generally exempt from tax. But a few years ago, officials came after clubs that hosted rock, hip-hop, country, and DJ performances, claiming that those kinds of music weren’t “commonly regarded as part of the fine arts.” Controversy exploded, critics derided the idea of turning tax collectors into…
May 2025
Is Death Different?
Jacob Bronsther
Associate Professor of Law, Michigan State University College of Law, J.D., M.Phil., Ph.D. For their incisive comments and discussion, the author is grateful to Andrea Armstrong, Rachel Barkow, Kristen Bell, David Blankfein-Tabachnick, Vincent Chiao, James Chen, Alma Diamond, Raff Donelson, Avlana Eisenberg, Sheldon Evans, Lindsay Farmer, Chad Flanders, Charles Fried, Jonathan Gingerich, John Goldberg, Linda Greene, Catherine Grosso, Irene Oritseweyinmi Joe, Erin Kelly, Alexandra Klein, Josh Kleinfeld, Guha Krishnamurthi, Nicola Lacey, Christopher Lewis, Marah McLeod, Erin Miller, Kathryn Miller, Erin Murphy, Carmel Nemirovksy, Alex Platt, Peter Ramsay, Shalev Roisman, Steve Schaus, Amy Sepinwall, Marissa Jackson Sow, Carol Steiker, Victor Tadros, Will Thomas, James Tierney, Robin West, and the participants of presentations at Harvard Law School, the Law and Humanities Junior Scholars Workshop at the University of Pennsylvania, the London School of Economics and Political Science, the Maryland Discussion Group on Constitutionalism, Michigan State University College of Law, the University of Oklahoma College of Law, the AALS Jurisprudence Section’s Works-in-Progress Workshop, the ABA-AALS-Academy for Justice Workshop, the Decarceration Works-in-Progress Workshop, and the Junior Scholars Legal Research Workshop. The authors thanks also Timothy Innes for his excellent research assistance, and Ryan Ming-Yuan Lee and his colleagues at the Cornell Law Review for their thoughtful work.
This Article attempts to unite the movements against the death penalty and mass incarceration. The central argument is that many noncapital sentences are in the same category of injury as the death penalty. Thus, whatever the law says (or ought to say) about the legitimacy of the death penalty, it should also say about these…
May 2025
Copyright’s Latent Space: Generative AI and the Limits of Fair Use
BJ Ard
Associate Professor of Law, University of Wisconsin Law School, and Affliate Fellow, Yale Information Society Project. The author thanks Oren Bracha, Robert Brauneis, Carys Craig, R. Feder Cooper, Rebecca Crootof, Deven Desai, Justin Hughes, Mark Lemley, Glynn Lunney, Michael Murray, David Nimmer, Jacob Noti-Victor, Blake Reid, Matthew Sag, Frederic Sala, Benjamin Sobel, Madhavi Sunder, Charlotte Tschider, Molly Shaffer Van Houweling, Christopher Yoo, and Peter Yu for feedback on this project, along with participants at the Fifth Annual Art Law Works-in-Progress Colloquium, 2024 Copyright Scholarship Round-table, UW Integrating Robots into the Future of Work Colloquium, 2024 Legal Scholars Roundtable on AI, Texas A&M School of Law Transformation in IP and Technology Law Symposium, 2024 Works-in-Progress for IP Colloquium, and faculty workshops at UGA and UW law schools. The author also thanks Kate Bishop, Peter Feider, John Lavanga, and Rosemary Patton for excellent research assistance. Research support was provided by the Office of the Vice Chancellor for Research and Graduate Education at UW with funding from the Wisconsin Alumni Research Foundation.
Generative AI poses deep questions for copyright law because it defies the assumptions behind existing legal frameworks. The tension surfaces most clearly in debates over fair use, where established tests falter in the face of generative systems’ distinctive features. This Article takes up the fair-use question to expose copyright’s limitations as well as its latent…
May 2025
Are Anticompetitive Contracts Enforceable? The Illegality Defense and Modern Anticompetitive Contracts
William Friedman
Trial Attorney, Civil Conduct Task Force, Antitrust Division, Department of Justice. Dartmouth College, A.B. 2011; J.D. Duke Law School, 2015. The views expressed in this article are personal to the author and do not necessarily reflect those of the United States Department of Justice. The author thanks Scott Ballenger, Daniel Francis, Dan Guarnera, Devin Redding, and the Cornell Law Review editorial staff for their helpful comments and guidance.
This Article argues that contracts that violate Section 1 of the Sherman Act should not be enforceable. Although seemingly modest, courts do not accept this proposition. When a defendant in a breach of contract action raises the defense of “illegality” under the Sherman Act, courts will likely reject the defense unless the contractual provision at…
Apr 2025
Protecting Entitlement-Holders with a Uniform Meaning of Fifth Amendment Property
Cameron Misner
J.D., 2024. Cornell Law School. I’m grateful to the to the notes editors at Cornell Law Review for lending their talents to this Note, to Professor Gali Racabi for inspiring the research, and to Professor Michael Dorf for helpful feedback.
Courts and commentators take it as given that the word “property” in the Fifth Amendment’s Due Process Clause refers to a broader class of assets than does the word “property” in the Fifth Amendment’s Takings Clause. In this Note, I challenge that assumption and argue that takings “property” ought to include the same assets that…
Apr 2025
Murder, Multiple Values, and Harmless Free Exercise Error
Josiah Rutledge
Law Clerk to the Hon. Martha M. Pacold, United States District Court for the Northern District of Illinois. Thank you to Professor Nelson Tebbe for overseeing this project, and to the members of the Religion & The Constitution directed reading group: Gabrielle Blom, Michelle Briney, Carolyn Click, Kate Dolbear, Patrick George, Trinity Kipp, Pierre Saint-Perez, and Gigi Scerbo. Finally, thank you to all the members of the Cornell Law Review Notes Office.
Happily, ours is a country dedicated to religious toleration. Among the “crucial principles of our liberal democracy” is that “Americans should freely practice their religions, and government should not establish any religion.” Not content to let those principles remain aspirational, we give them legal force in the form of the Free Exercise and Establishment Clauses…
Apr 2025
In Pursuit of Quality: Amplifying Panel Effects on the United States Courts of Appeals
John McCloud
J.D. Candidate, Cornell Law School, 2025. B.S. in Mechanical Engineering, University of California, Berkeley, 2020. Admissions & Membership Editor, Cornell Law Review Vol. 110.
The Shouldice Hospital, a medical center outside of Toronto, has become well known for bucking prevailing medical norms. Rather than performing the full panoply of medical services, like most hospitals, it focuses on a single type of surgery— hernia repair. The surgeons at Shouldice perform up to 800 hernia repairs per year, more than a…
Mar 2025
Political Advertising on Free Streaming Sites: Conflicts with First Amendment and Exploring Viability of Regulation
Pilar Gonzalez Navarrine
J.D., Cornell Law School, 2024; B.A., Washington University in St. Louis, 2018.
Pilar Gonzalez Navarrine
J.D., Cornell Law School, 2024; B.A., Washington University in St. Louis, 2018.
When broadcast TV first became a staple in the American household, it probably seemed unlikely that fifty years later, its hold on the American public would lessen in favor of other types of media. However, for years now, users have relied on online news—whether websites, social media sites, or streaming sites—instead of cable and broadcast…
Jan 2024
Waging War: Exercising the Right to Selfdefense in Disputed Territories
Merrick Black
B.A., Yale University, 2019; J.D., Cornell Law School, 2024; Publishing Editor, Cornell Law Review, Vol. 109.
Merrick Black
B.A., Yale University, 2019; J.D., Cornell Law School, 2024; Publishing Editor, Cornell Law Review, Vol. 109.
This Note will focus on whether a state may invoke the right to self-defense in order to protect citizens living in a different territory. In my Note, I will examine the separatist regions of Abkhazia, Transnistria, and Donbas. First, I will argue that Russia’s efforts to foster sovereignty in separatist regions by creating treaties with…
Jan 2024
Arbitration Secrecy
E. Gary Spitko
Presidential Professor of Ethics and the Common Good and Professor of Law, Santa Clara University.
Parties to an arbitration contract may agree to a secrecy clause that will govern their arbitration process to protect the confdentiality of their proprietary or personal information. Of great concern, however, is that they also may use such an arbitration secrecy clause to hide their improper or discriminatory practices or defects in their products, and…
Jan 2024
Federal Rules of Private Enforcement
David L. Noll & Luke P. Norris
Professor of Law and Associate Dean for Faculty Research and Development, Rutgers Law School & Associate Professor of Law, University of Richmond School of Law.
David L. Noll & Luke P. Norris
Professor of Law and Associate Dean for Faculty Research and Development, Rutgers Law School & Associate Professor of Law, University of Richmond School of Law.
The Federal Rules of Civil Procedure were made for a different world. Fast approaching their hundredth anniversary, the Rules reflect the state of litigation in the first few decades of the twentieth century and the then-prevailing distinction between “substantive” rights and the “procedure” used to adjudicate them. The role of procedure, the rulemakers believed, was…
Jan 2024
The Sea Corporation
Robert Anderson
Professor of Law, University of Arkansas School of Law.
Over the past two centuries the corporation has emerged from obscurity to become the dominant form of business organization in the United States, accounting for more productive assets than all other business forms combined. Yet the corporation is relatively young for a legal institution of such economic importance. As late as the middle of the…
Jan 2024
Where is Statutory Law?
Jesse M. Cross
Associate Professor, University of South Carolina School of Law.
Textualism has become the ascendant method of statutory interpretation on the Court, and it is rapidly reshaping the entire judiciary. Yet we still do not understand the “text” in textualism. This is part of a broader failure in legislative studies: we lack a basic understanding of the texts that comprise our statutory law. As this…
Sep 2023
Building Better Species: Assisted Evolution, Genetic Engineering, and the Endangered Species Act
John A. Erwin
Assistant Professor at Florida International University College of Law.
On December 10, 2020, Elizabeth Ann, a black-footed ferret, was born. This was a momentous occasion, as it was the first time a native species listed under the Endangered Species Act (“ESA”) had been cloned. This is the first major attempt to use biotechnology to aid in the conservation of an endangered species, but it…
Sep 2023
Vigilante Federalism
Jon D. Michaels & David L. Noll
Professor of Law, UCLA School of law & Associate Dean for Faculty Research and Development and Professor of Law, Rutgers Law School.
In battles over abortion, religion, sexuality, gender, and race, state legislatures are mass producing a new weapon. From Texas’s S.B. 8 to book bans and a flurry of bills empowering parents to sue schools that acknowledge LGBTQ+ identities or implement anti-racist curricula, state legislatures are enacting laws that call on private parties—and sometimes only private…
Sep 2023
A Site to Save a Life: The Case for Lobbying Congress to Restrict the Department of Justice from Targeting Supervised Drug Consumption Sites
Trevor Thompson
J.D., Cornell Law School 2022; B.A. Columbia University, 2018.
Trevor Thompson
J.D., Cornell Law School 2022; B.A. Columbia University, 2018.
This Note will begin with an overview of fentanyl’s role in exacerbating the opioid crisis that has now claimed over a million American lives. It will then offer a partial explanation for why the crisis has gotten worse over the past few years: the Food and Drug Administration’s (“FDA”) refusal to initiate a prescription to…
Sep 2023
Tripping on Patent Hurdles: Exploring the Legal and Policy Implications of Psilocybin Patents
Jennifer S. Seidman
J.D., Cornell Law School, 2023; B.S. in Public Health, B.A. in Chemistry, University at Buffalo, 2020.
Jennifer S. Seidman
J.D., Cornell Law School, 2023; B.S. in Public Health, B.A. in Chemistry, University at Buffalo, 2020.
Ask any hippie and they will tell you about the euphoric and therapeutic properties of psychedelic “magic” mushrooms (psilocybin). While the therapeutic effects of psilocybin have been long known among indigenous and underground practices, the medicalization of psilocybin therapy is a new phenomenon. Psilocybin poses a unique and promising solution for the growing mental illness…
Jul 2023
Pharmaceutical Patent Protection Beyond the Twenty-Year Statutory Term
M. Houston Brown, Jr.
J.D., Cornell Law School, 2023; B.A. in Neuroscience and Behavior, Columbia University, 2019.
Although many life-saving pharmaceuticals on the market have already seen their patents expire, there are countless life-saving pharmaceuticals that still have patent protection, and many more are currently or will be seeking patent protection. Some of these pharmaceutical inventions still have patent protection despite the initial patents having been filed as far back as 1985….
Jul 2023
Theorizing Corroboration
Maggie Wittlin
Associate Professor, Fordham Law School
A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts…
Jul 2023
International Law in the Boardroom
Kishanthi Parella,
Professor, Washing & Lee University School of Law.
Kishanthi Parella,
Professor, Washing & Lee University School of Law.
Conventional wisdom expects that international law will proceed through a “state pathway” before regulating corporations: it binds national governments that then bind corporations. But recent corporate practices confound this story. American corporations complied with international laws even when the state pathway broke down. This unexpected compliance leads to three questions: How did corporations comply? Why…
Jul 2023
The Private Enforcement of National Security
Maryam Jamshidi
Associate Professor of Law, University of Colorado Law School.
Maryam Jamshidi
Associate Professor of Law, University of Colorado Law School.
The private enforcement of public law is a central feature of the American administrative state. As various scholars have argued, the federal government depends upon private parties to enforce public laws through litigation in order to achieve the government’s regulatory objectives. This scholarship has, however, largely overlooked the phenomenon of private enforcement in the national…
Jul 2023
Religious or Not Religious? That Is Not the Establishment Clause Question
Ashley Stamegna
J.D. Candidate, Cornell Law School, 2022.
While the Supreme Court struggles to find solid footing for its Establishment Clause jurisprudence, it is rare that attention is given to this particular inconsistency. Instead, courts in the Establishment Clause context have done exactly what they condemn in the free-exercise context: evaluate the veracity of a claimant’s sincere beliefs. This Note attempts to reconcile…
Jun 2023
Political and Judicial Incorrectness: The Case for Modifying the Arlington Heights Test to Disincentivize Discriminatory Appeals
Steven D. Mirsen
J.D. Candidate, Cornell Law School, 2023.
Throughout history, discriminatory appeals to the public have been exploited by demagogues and dictators in order to concentrate power predicated on prejudice. As recent events have revealed, creating scapegoats, cultivating resentment, and capitalizing on fear and hate all remain unfortunately familiar marks on the political roadmap. Discriminatory appeals, particularly those rooted in Islamophobia, remain a…
Jun 2023