2 – Cornell Law Review

Category: 2

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

Addiction and Liberty

Matthew B. Lawrence

Associate Professor of Law, Emory Law; Affiliate Faculty, Harvard Law School, Petrie-Flom Center for Health Law Policy, Bioethics, and Biotechnology.

This Article explores the interaction between addiction and liberty and identifies a firm legal basis for recognition of a fundamental constitutional right to freedom from addiction. Government interferes with freedom from addiction when it causes addiction or restricts addiction treatment, and government may protect freedom from addiction through legislation empowering individuals against private actors’ efforts…

Apr 2023

Municipal Failures

Nancy Leong

William M. Beaney Memorial Research Chair and Professor of Law, University of Denver Sturm College of Law.

Calls for reforming the civil rights enforcement regime often focus on individual government officers. Recent years have brought demands to abolish qualified immunity—a defense that protects individual officers from liability so long as they did not violate clearly established law—and to end indemnification—a practice in which government employers satisfy judgments against their employees. This Article…

Apr 2023

Unequal Protection: Challenges to Serious Mental Illness Exemptions from the Death Penalty

Claire M. Piorkowski

J.D. Candidate, Cornell Law School, 2023; B.A. in Political Science, University of Cincinnati, 2020.

This Note explores the contention that Ohio House Bill 136 and similar proposed bills with a diagnosis-based categorical approach to death penalty exemptions violate seriously mentally ill individuals’ rights under the Equal Protection Clause of the Fourteenth Amendment by limiting the scope of eligible mental illnesses to a narrow subset of specified disorders. This Note…

Apr 2023

Politicization of State Attorneys General: How Partisanship is Changing the Role for the Worse

Marissa A. Smith

J.D. Cornell Law School; B.S. University of Texas at Austin.

The position of State AG has long been said to stand for ‘Aspiring Governor’ rather than Attorney General. It is remarkable how the significance of that joke has changed as the role has become one of the most influential in the country.2 What began as insolent mockery is now a fearsome truth. State attorneys general…

Apr 2023

If We Build It, Will They Legislate? Empirically Testing the Potential Testing the Potential of the Nondelegation Doctrine to Curb Congressional “Abdication”

Daniel E. Walters & Elliot Ash

Associate Professor of Law, Texas A&M University School of Law & Assistant Professor, Law, Economics, and Data Science, ETH Zurich.

A widely held view for why the Supreme Court would be right to revive the nondelegation doctrine is that Congress has perverse incentives to abdicate its legislative role and evade accountability through the use of delegations (either expressly delineated or implied through statutory imprecision), and that enforcement of the nondelegation doctrine would correct for those…

Apr 2023

Moving Forward from Brackeen and Solutions for the Greater Efficacy of the Indian Child Welfare Act

Jeena Patel

J.D. Candidate, Cornell Law School, 2026; B.A. in Political Science, Boston University, 2021. Firstly, the author thanks the editors and board members of Cornell Law Review. The author would like to thank Professor Robert Odawi Porter for teaching a life-changing course on Indigenous Law. The author would also like to thank Kathryn E. Fort, whose knowledge, insights, and passion for ICWA made this Note possible.

The Indian Child Welfare Act (ICWA) of 1978, enacted to protect Native American children from being removed from their tribes, was recently upheld in 2023 by the U.S. Supreme Court in Haaland v. Brackeen in the face of considerable challenge. Through analyzing the upholding of ICWA and its ramifications, this Note seeks to examine how…

The Unpropertied Internet

Nicholas J. Nugent

Assistant Professor of Law, University of Tennessee. This Article benefited from presentations at New York University, Wake Forest University, the University of Arizona, the University of Richmond, and the Annual Meeting of the Association of American Law Schools in Washington, D.C. In addition to helpful comments from participants in those events, I would like to thank Joshua Fairfield, Aaron Perzanowski, Asaf Lubin, James Grimmelmann, Yaft Lev-Aretz, Maurice Stucke, Gregory Stein, and Gary Pulsinelli for their helpful comments and suggestions. Thanks to Daniel Mendoza for helpful research assistance and to the editors at the Cornell Law Review for fantastic work getting this Article into shape for publication.

It has often been said that the internet lacks public property. Unlike the offline world, denizens of cyberspace cannot gather in the digital equivalent of public parks, cannot shame websites by picketing on adjacent cyber-sidewalks, and cannot loiter in online streets and alleys if they lack a cyber-place of their own. Yet scant attention has…

Proportional Possession

Allyson E. Gold & Joseph A. Singleton

Allyson E. Gold is a Professor of Law at Wake Forest University School of Law. Joseph A. Singleton is the Health Law & Policy Fellow at Wake Forest University School of Law. Thank you to workshop attendees at the New York University Clinical Writers Workshop, the faculty of NOVA Southeastern Shepard Broad College of Law, and Association for Law and Property Scholars conference attendees for invaluable feedback. We are grateful to John Knox, Jessica Shoemaker, Jenny Russell, Hano Ernst, Michel Vols, and Rachael Walsh for extremely helpful comments and conversations.

American eviction proceedings are governed by a fusion of property and contract law. The law’s narrow understanding of eviction ignores the importance of a dwelling place to its occupants. Property is not merely land or a structure on that land; it is a home with the power to shape communities, social relationships, and human values….

Rethinking Plyler: Preserving the Right to Education for Undocumented Children

Meghan Brady-Fuchsman

J.D., Cornell Law School, 2026; B.S. in Policy Analysis and Management, Cornell University, 2023; Executive General Editor, Cornell Law Review Vol. 111.

In the summer of 1977, several families living in Tyler, Texas received a letter informing them that their children were no longer eligible to attend public school—unless they could pay $1,000 in tuition. Nine-year-old Alfredo Lopez should have been starting second grade, but his family could not afford the fee. What set him apart from…

Income Taxation and the Regulation of Supreme Court Justices’ Conduct

Omri Marian

Professor of Law, University of California, Irvine School of Law. I received excellent written comments from Swethaa Ballakrishnen, Joshua Blank, Alex Camacho, Adam Chodorow, Bridget Crawford, Victor Fleischer, Sarah Lawsky, Leslie Samuels, Song Richardson, Gabe Roth, and Ari Waldman. Any errors or omissions are my own.

In 2023, investigative journalists reported multiple instances where billionaires showered Supreme Court Justices with lavish gifts. Previously undisclosed luxury fishing trips, private jet travel, and yacht cruises ignited popular and scholarly debates about Congress’s role in regulating Justices’ conduct. This Article explains how income taxation can, and should, be used to regulate judicial misconduct where…

Birthright Citizenship and the Dunning School of Unoriginal Meanings

Evan D. Bernick, Paul Gowder & Anthony Michael Kreis

Associate Professor of Law, Northern Illinois University College of Law; Professor of Law, Northwestern University Pritzker School of Law; and Assistant Professor of Law, Georgia State University College of Law. Authors’ names are listed in alphabetical order. The authors thank Maggie Blackhawk, Christine Kexel Chabot, Jack Chin, Stella Burch Elias, Paul Lombardo, Ryan Rowberry, and Melissa Stewart for helpful suggestions. The authors alone are responsible for the content of this Essay and any mistakes therein.

This Essay critically surveys the recent debate surrounding birthright citizenship in the United States, particularly in light of arguments presented by legal scholars Randy Barnett, Kurt Lash, and Ilan Wurman. Under the guise of “originalism,” Barnett, Lash, and Wurman propose an ahistorical, revisionist interpretation of the Fourteenth Amendment’s Citizenship Clause. They suggest that the term…

The Federal Rules of Climate Change

Roger Michalski

Roger Michalski holds the Arch B. & Jo Anne Gilbert Professorship of Law, University of Oklahoma College of Law. The author would like to thank Melissa Mortazavi for her helpful feedback on earlier drafts. A special thanks to Emily Taylor Poppe. This article grew out of a previous article co-authored with her and it would not exist without her.

A new Federal Rule of Civil Procedure, Rule 87, quietly took effect in December 2023. The wholesale adoption of a new rule is rare; most changes to the Federal Rules of Civil Procedure involve tweaks or minor revisions to existing rules, and many existing rules are quite old. Yet, despite the novelty of a new…

Category: 2

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.

Matthew B. Lawrence Associate Professor of Law, Emory Law; Affiliate Faculty, Harvard Law School, Petrie-Flom Center for Health Law Policy, Bioethics, and Biotechnology.

Nancy Leong William M. Beaney Memorial Research Chair and Professor of Law, University of Denver Sturm College of Law.

Claire M. Piorkowski J.D. Candidate, Cornell Law School, 2023; B.A. in Political Science, University of Cincinnati, 2020.

Marissa A. Smith J.D. Cornell Law School; B.S. University of Texas at Austin.

Daniel E. Walters & Elliot Ash Associate Professor of Law, Texas A&M University School of Law & Assistant Professor, Law, Economics, and Data Science, ETH Zurich.

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.

Matthew B. Lawrence

Associate Professor of Law, Emory Law; Affiliate Faculty, Harvard Law School, Petrie-Flom Center for Health Law Policy, Bioethics, and Biotechnology.

Nancy Leong

William M. Beaney Memorial Research Chair and Professor of Law, University of Denver Sturm College of Law.

Claire M. Piorkowski

J.D. Candidate, Cornell Law School, 2023; B.A. in Political Science, University of Cincinnati, 2020.

Marissa A. Smith

J.D. Cornell Law School; B.S. University of Texas at Austin.

Daniel E. Walters & Elliot Ash

Associate Professor of Law, Texas A&M University School of Law & Assistant Professor, Law, Economics, and Data Science, ETH Zurich.