Cornell Law Review

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

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 War on Terror & Vigilante Federalism

Maryam Jamshidi

Associate Professor of Law at the University of Colorado Law School.

In their article, Vigilante Federalism, Jon Michaels and David Noll sound the alarm about the rising trend of “vigilante federalism” across various states. As Michaels and Noll describe this phenomenon, Republican-led jurisdictions have been passing private enforcement laws empowering private actors to bring civil suits targeting certain activities and communities, including abortion, LGBTQI persons, and…

Oct 2023

Substance and Form in Vigilante Federalism

Zachary D. Clopton

Professor of Law, Northwestern Pritzker School of Law.

Procedure is power, to be sure, but we should not let a lawyerly interest in procedural design distract from substantive justice. Vigilante Federalism makes an invaluable contribution by showing how a particular procedural form has been used to undermine substantive justice.  The authors deserve enormous credit for documenting, publicizing, and criticizing what they call “private…

Oct 2023

Judicial Process and Vigilante Federalism

Charles W. “Rocky” Rhodes & Howard M. Wasserman

Professor of Law and Charles Weigel II Research Professor of State and Federal Constitutional Law, South Texas College of Law Houston & Professor of Law, FIU College of Law.

Jon Michaels’ and David Noll’s Vigilante Federalism decries the explosion of a specific class of state law—prohibiting locally unpopular, although perhaps constitutionally protected, conduct using private civil litigation as the exclusive or primary enforcement mechanism.  The trend begins with the Texas Heartbeat Act in 2021 (commonly referred to as “S.B. 8”), which prohibited abortions (prior…

Oct 2023

Truth, Reason, Justice, and Evidence Law

Talia Fisher

Anny and Paul Yanowicz Professor of Human Rights, Tel Aviv University Faculty of Law and visiting fellow at Harvard Law School’s  Program on Behavioral Economics and Public Policy (2023).

This Essay addresses the most fundamental jurisprudential question underlying the institution of evidence law: it explores the justifications for subjecting legal fact‑finding to the regulation of evidence rules.  This issue has been at the center of evidence law scholarship since the days of Bentham’s Rationale of Judicial Evidence, which advocated a naturalistic approach to legal…

Oct 2023

Incentive-Compatible Inflation Policy

Brian Galle

Professor of Law, Georgetown University Law Center

Imagine that we had to fight and adapt to the COVID-19 epidemic using only vintage 1970s technology. No mRNA vaccines; no designer anti-viral drugs. Want to work from home? Try that on a dial-up modem that transmits about 800 bits of information per second (today’s high-speed internet is literally one hundred million times faster). Nevertheless,…

Jul 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

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

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

COVID, Sex Discrimination, and Medical Research

Lori Andrews, J.D., is the Director of the Institute for Science, Law and Technology and Distinguished Professor of Law at IIT Chicago-Kent College of Law.

Bora Ndregjoni, third-year law student at IIT Chicago-Kent College of Law.

This Article analyzes the burgeoning medical research literature about COVID-19 and finds that the historical failure to take women’s symptoms and needs into account continues to this day.

Apr 2021

Unequal Representation: Women in Clinical Research

Allison M. Whelan

Associate, Covington & Burling LLP, Washington D.C.; J.D., University of Minnesota Law School; M.A. Bioethics, University of Minnesota.  Special thanks to Professor Michele Goodwin and the editors of the Cornell Law Review.  The views expressed in this article are the author’s and do not represent those of any past, current, or future employer.

Much progress has been made to increase women’s overall representation in clinical trials, but there is far more work to be done with respect to the representation of women of color, and people of color in general. The primary focus of this Article is the inadequate representation of women of color, and people of color more generally, in clinical trials.

Apr 2021

Copyright Silencing

Cathay Y. N. Smith, Associate Professor of Law, University of Montana Blewett School of Law. Thanks to Aman Gebru, Jennifer Sturiale, Jacob Victor, Xiyin Tang, for comments and Nicholson Price and Alex Roberts for organizing the 2020 virtual JIPSA summer workshop. Thanks also to Orly Lobel and her students at University of San Diego School of Law for inviting me to talk about this Essay and Tiger King. Finally, thank you to the diligent law review editors at Cornell Law Review.

Copyright has been weaponized to suppress speech,11.  See David S. Olson, First Amendment Based Copyright Misuse, 52 WILLIAM & MARY L. REV. 537, 547–48 (2010) (describing examples of “the Estate of James Joyce’s history of … Continue reading frustrate competition, 22. See, e.g., Adi Robertson, The EFF is Suing over one of the Worst US Copyright…

Jan 2021

The Electors Clause and the Governor’s Veto

Nathaniel F. Rubin. J.D., Stanford Law School, 2018. My thanks go to Lisa Larrimore Ouellette, Allison Douglis, Fares Akremi, and Adam Hersh—without whose feedback and guidance this Essay would not have been possible.  My thanks too to the editors of the Cornell Law Review for their excellent work under trying conditions—including Victor Flores, Nicholas Pulakos, Lachanda Reid, Gabriela Markolovic, and Jared Quigley. All errors are my own.

This Essay examines whether the United States Constitution allows a governor to veto a state legislature’s bill governing presidential elections. The Constitution does not support this seemingly intuitive proposition directly, and on its face appears to vest control over presidential elections solely in the hands of state legislatures: while Article II of the Constitution explicitly provides for the “Legislature” of each state to control the “manner” in which electors are chosen, it makes no mention of state governors. This vagary in the Constitution’s text takes on particular import in light of political polarization over election administration in recent years. Moreover, the COVID-19 pandemic has prompted numerous states to make emergency modifications to their election systems, including delaying elections or attempting to cancel marginally competitive presidential primaries. Commentators have even expressed fear that a state legislature may eventually attempt to exercise its plenary authority to determine how presidential electors are appointed under Article II, Section 1 of the Constitution to choose electors without holding a popular vote. This Essay answers these concerns by arguing that a state governor can veto state legislatures’ bills governing presidential elections on the same terms as any other legislation.

Jan 2021

Book Review—Yearning to Breathe Free: Migration Related Confinement in America

Danielle C. Jefferis. Assistant Professor, California Western School of Law. I owe deep gratitude to Professor César Cuauhtémoc García Hernández. His research and scholarship are significant contributions to this field and have pushed me to think critically about my own work. He and I, along with Carrie Rosenbaum and Jennifer Chacón, were in conversation about this book during an Author Meets Reader session at the Law and Society’s 2020 Annual Meeting, and our dialogue refined this piece. I also thank the editors of Cornell Law Review, including Gabriela Markolovic, Nicholas Pulakos, and Victor Flores, who have diligently and skillfully prepared this piece for publication during especially unsettled times. Any and all errors are mine.

Book: MIGRATING TO PRISON: AMERICA’S OBSESSION WITH LOCKING UP IMMIGRANTS. César Cuauhtémoc García Hernández. 2019. 190 pages.  Migrating to Prison assumes a primary position among the growing body of legal scholarship that focuses on the role of incarceration in immigration regulation. This Review explores two key contributions of the book, while situating the work among…

Oct 2020

Ford’s Hidden Fairness Defect

Linda Sandstrom Simard, Professor of Law, Suffolk University Law School.

Cassandra Burke Robertson, John Deaver Drinko—BakerHostetler Professor of Law and Director of the Center for Professional Ethics, Case Western Reserve University School of Law.

Charles W. “Rocky” Rhodes, Professor of Law, South Texas College of Law Houston.

 

A consumer saves up to buy a used car. Unbeknownst to him, the vehicle has a design defect—and in a crash, the airbag fails to deploy, leaving his passenger severely injured. Under state law, the injured party has a right to sue the vehicle manufacturer: but where? The obvious forum is the plaintiff’s home forum—it’s where…

Oct 2020

When Does The Bell Toll For Women’s Equality?

This year, the Cornell Law Review will host, When Does The Bell Toll For Women’s Equality?,  an online symposium that examines the political, economic, social, and legal status of women. The symposium makes interventions along the lines of sex, race, and class to understand the persistence of women’s inequality and invisibility at a critical juncture…

Sep 2020

A 2020 Agenda For Re-Invigorated Antitrust Enforcement: Four Big Ideas

Edward D. Cavanagh, Professor of Law, St. John’s University School of Law

In an essay published in the mid-1960s, historian Richard Hofstadter posed a question that was as simple as it was profound: What happened to the antitrust movement in America?11. RICHARD HOFSTADTER, What Happened to the Antitrust Movement?, in THE PARANOID STYLE IN AMERICAN POLITICS AND OTHER ESSAYS 188 (1st ed. 1965). Hofstadter observed that Americans had lost their zeal for antitrust and that antitrust enforcement had become…

Jan 2020