Category: Print Volume 109
Mandating Nature’s Course
Sherry F. Colb & Michael C. Dorf
Sherry F. Colb was C.S. Wong Professor, Cornell Law School. She died in August 2022, leaving behind a partial and preliminary draft of this Article. Michael C. Dorf is Robert S. Stevens Professor of Law, Cornell Law School, and was married to Professor Colb from 1991 until her death. Because readying this Article for publication required a substantial amount of further research, writing, and editing, Professor Dorf has chosen to identify himself as a co-author to make clear that he bears responsibility for any errors that Professor Colb would have corrected if she had had the opportunity.
Laws that substantially restrict abortion, gender-affirming care, and aid in dying do not merely forbid particular acts; they effectively mandate burdensome bodily obligations. Yet many proponents of such restrictions purport to support a right to bodily autonomy in other contexts, for example by opposing public health vaccination and masking mandates. They distinguish the former restrictions…
Feb 2025
On “Death Houses” and “Kill Boxes”: The Death Penalty and Animal Slaughter
John H. Blume
Samuel F. Leibowitz Professor of Trial Techniques, Cornell Law School and Director the Cornell Death Penalty Project.
This Essay is somewhat unusual for a Symposium of this nature honoring the scholarship (and of course the memory) of my former colleague and friend Sherry Colb. I will not engage directly with an article or book Sherry did write, but rather with one that she didn’t. Sherry (and her husband and frequent coauthor Michael…
Feb 2025
What If Animals Are Moral Agents?
Taimie L. Bryant
Professor of Law, UCLA School of Law.
In an essay titled Should Animals Be Able to Sue People?, Professor Sherry Colb considers Justice v. Vercher, a lawsuit brought by Justice, a horse seeking damages for injuries resulting from his previous owner’s gross negligence. Gwendolyn Vercher had already been convicted of animal cruelty and paid the statutorily required restitution, but that restitution was limited to…
Feb 2025
Feminism, Theocracy, and Righteous Anger: Sherry Colb Unbound
Neil H. Buchanan
James J. Freeland Eminent Scholar and Professor of Law, University of Florida Levin College of Law; Visiting Professor at Osgoode Hall Law School and the University of Toronto Faculty of Law.
From May through August of 2022, Professor Sherry Colb wrote an impressive series of essays in furious response to what soon became Dobbs v. Jackson Women’s Health Organization, a nearly final draft of which had been leaked before its official publication date. In All Hail Justice Coathanger, Gunning for Involuntary Pregnancy, and finally Alito and the Free Exercise of…
Feb 2025
In Defense of Katz: In Memory of Professor Sherry Colb
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law.
Professor Colb addressed issues of privacy and the Fourth Amendment in many of her articles. A key aspect of her scholarship focused on the appropriate test for determining what is a search under the Fourth Amendment. Her article—A World Without Privacy: Why Property Does Not Define the Limits of the Right Against Unreasonable Searches and…
Feb 2025
Sherry Colb: Feminist Theorist and Social Change Agent
Deborah Dinner
Dorothea S. Clarke Professor of Law, Cornell Law School.
Social movements change hearts and minds by shifting how people understand what is true about the world around them. They start by making differences visible, centering lives and experiences previously pushed to cultural margins. Such differences are often at once biological and social, inherent and constructed. Feminist scholars and activists, for example, have grounded ethical…
Feb 2025
Race and a Revised Doctrine of Double Effect: A Reservation About Professor Colb’s Revision
Sheri Lynn Johnson
The James and Mark Flanagan Professor of Law, Cornell Law School.
Even as her life ebbed, Professor Sherry Colb was remarkably committed to scholarship. Among the works she produced in her last year was A New and Improved Doctrine of Double Effect: Not Just for Trolleys, posthumously published in the Connecticut Law Review. It was creative, enormously ambitious, wide-ranging, and entertaining—but, I think, at least in one crucial…
Feb 2025
A Pro-Feminist Life: Sherry Colb and Abortion Rights
Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director of the Supreme Court Litigation Clinic, Stanford Law School.
In a classic work of feminist theory, The Mermaid and the Minotaur, Dorothy Dinnerstein described her project this way: “[T]o fight what seems about to destroy everything earthly that you love—to fight it not passively . . . , with denial; and not unrealistically, with blind force; but intelligently, armed with your central resource, which is…
Feb 2025
Dead Infants and Taking the Fifth
Tracey Maclin
Professor of Law and Raymond & Miriam Ehrlich Scholar Chair University of Florida Levin College of Law.
This Essay offers tribute to Professor Colb’s teachings and insights expressed in her writings on the Court’s Miranda and Self-Incrimination Clause rulings. Since the start of the twenty-first century, Professor Colb wrote many blogs on the Court’s Miranda doctrine. Miranda v. Arizona famously held that persons under arrest must be warned of their right to…
Feb 2025
New and Newer Ways of Thinking About the Fourth Amendment
Christopher Slobogin
Milton Underwood Professor of Law, Vanderbilt University.
Sherry Colb was one of the most innovative Fourth Amendment thinkers of her generation. Every criminal procedure buff has something to say about search and seizure law, but Sherry was one of the few scholars who added to the canon. In particular, her two articles in Columbia Law Review, Innocence, Privacy, and Targeting in Fourth…
Feb 2025
Desperate Times and Desperate Measures: When Is Rescuing Animals “Necessary?”
Mariann Sullivan
Sherry Colb and I didn’t always agree about everything. One of the things I valued most about her friendship was that, partly because of that, she was the perfect person to talk to in order to hone ideas. But, of course, it also mattered immensely that she was always respectful and generous and, of course,…
Feb 2025
Sherry Colb, Massiah, and Miranda
George C. Thomas III
Rutgers University Board of Governors Professor of Law & Judge Alexander P. Waugh, Sr. Distinguished Scholar.
I dislike subtitles but if I were to use one for this Article, it would be “Facing Miranda’s Consequences.” It is one kind of judicial act to decide that suspects should know that they do not have to answer police questions posed during custodial interrogation; this led the Supreme Court to require Miranda warnings. It…
Feb 2025
Using State Constitutions and International Human Rights Law to Compel Law Enforcement to Test Rape Kits
Penny M. Venetis
Distinguished Clinical Professor of Law, Associate Professor of Law, Judge Dickinson R. Debevoise Scholar, Director of the International Human Rights Clinic, Rutgers Law School.
There are 25,000 untested rape kits sitting in storage, around the United States, that are purposely not being tested by law enforcement, even though they contain DNA evidence that can easily help solve rapes. Law enforcement is deliberately not testing evidence that can solve violent sex crimes committed almost exclusively against girls and women. The…
Feb 2025
Judicial Institutionalism
Rachel Bayefsky
Associate Professor of Law, University of Virginia School of Law.
The idea of institutionalism figures prominently in today’s debates about the role of federal courts in American democracy. For example, Chief Justice Roberts is often described as an institutionalist who seeks to preserve the Supreme Court’s power or reputation. But what exactly is institutionalism, and should judges be institutionalists? Although institutionalism is invoked in public…
Dec 2024
Earning Trade Secrets
Joseph P. Fishman & Deepa Varadarajan
Professor of Law, Vanderbilt Law School, Associate Professor of Law, Georgia State University College of Law.
Every intellectual property right, like every property right generally, has a moment of birth. Whether and when that moment occurs depend on doctrines of original acquisition. In most IP regimes, these doctrines are so fundamental that they’ve been reduced to a single verb. One can get a patent only by inventing, or a copyright only…
Dec 2024
Reproductive Justice at Work: Employment Law after Dobbs v. Jackson Women’s Health Organization
Laura T. Kessler
S.J. Quinney Endowed Chair and Professor of Law, University of Utah, S.J. Quinney College of Law.
In June 2022, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide what…
Dec 2024
Natural‑Person Shareholder Voting
Michael Simkovic
USC Gould School of Law.
“One-share, one-vote” corporate governance often leads to inefficient negative externalities, even when shareholders care about direct harm to themselves and even if corporations respond to shareholder preferences. Because equity ownership is concentrated, while many externalities are more diffuse, corporate voting underweights externalities. But allocating votes according to the principle of “one person, one vote” creates…
Dec 2024
On Bankruptcy Appeals: Equitable Mootness as Gatekeeper to Plan Confirmation Review
Zachary R. Hunt
J.D., Cornell Law School, 2024. M.S. in Finance, University of South Florida, 2021. Senior Articles Editor, Cornell Law Review Vol. 109.
In bankruptcy appeals, the judge-made prudential doctrine of “equitable mootness” allows appellate courts to dismiss an appeal as moot when granting the requested relief would undermine the finality of a substantially consummated plan of reorganization. As applied, however, the doctrine of equitable mootness is neither mootness nor equitable. On the former, equitable mootness is not…
Dec 2024
Payment as Punishment: Establishing College Athletes as Employees to Safeguard Athlete Welfare in the “Super Conference” Era
Haley Lukas
J.D., Cornell Law School, 2025; M.B.A., Cornell SC Johnson College of Business, 2025; B.S. (Business Administration) UC Berkeley, 2017. Prior to law school, Lukas captained the NCAA Division I UC Berkeley (California) women’s soccer team and played professional soccer in multiple top divisions across Europe.
This Note argues the increased profitability and shift toward “super conferences” in Division I college athletics does not comport with the NCAA’s “revered tradition of amateurism” and justifies college athletes’ classification as employees under the Fair Labor Standards Act (FLSA). Rather than making more traditional compensation arguments rooted in fairness or market value, employment status…
Dec 2024
Altered Stakes: Reimagining the Amount-in-Controversy Requirement
Steven Gensler & Roger Michalski
Gene and Elaine Edwards Family Chair in Law, Professor of Law, University of Oklahoma College of Law, Professor of Law, University of Oklahoma College of Law.
Which state-law cases should Congress allow into federal court? Congress’s answer has always been “only the big ones.” This article revisits the choice to limit diversity jurisdiction to higher-value cases and critically examines how Congress has approached setting the amount threshold. It surveys alternate ways Congress could use case value to sort which cases make…
Sep 2024
Defense Lawyering in the Progressive Prosecution Era
Jenny Roberts
Dean and Professor of Law, Maurice A. Deane School of Law, Hofstra University.
The movement to elect so-called “progressive prosecutors” is relatively new, but there is a robust literature analyzing it from a number of angles. Scholars consider how to define “progressive prosecution,” look at the movement through a racial justice lens, and examine it in the context of rural spaces, deportation, and the pandemic. One essay even…
Sep 2024
Taxing Luxury Emissions
Clinton G. Wallace & Shelley Welton
Associate Professor of Law, University of South Carolina School of Law, Presidential Distinguished Professor of Law & Energy Policy, University of Pennsylvania Carey Law School and Kleinman Center for Energy Policy.
Recent economic and sociological studies have documented the rising challenge of carbon inequality—that is, extreme class disparities in carbon emissions both within the United States and globally. These studies show an alarming divide, with the top 10% of emitters producing half of all emissions and the top 1% alone producing 17% of emissions. Meanwhile, the…
Sep 2024
Takings and Homeowners’ Expectations in Times of Rapid Climate Change
Gijs de Bra
J.D. Candidate, Cornell Law School 2025; M.S., University of Amsterdam 2019.
This Note argues that courts should give more weight to climate change when assessing the reasonable investment-backed expectations that define the owner’s property interest. First, the owner’s expectations should be viewed dynamically, evolving over time, because government regulations—climate and disaster controls in particular—must also respond to changing circumstances. Currently, expectations are fixed at the time…
Sep 2024
The Case For a Uniform Invention Assignment Agreement Act (UIAAA)
Amanda Shoemaker
J.D., Cornell Law School, 2024; B.S., Marketing and Media Arts, Bentley University, 2021.
An invention is broadly defined as “anything that is created or devised.” As the Supreme Court once remarked, “the word cannot be defined in such manner as to afford any substantial aid in determining whether a particular device involves an exercise of the inventive faculty or not.” Today, most “inventors” are employees of a corporate enterprise…
Sep 2024
Arousal by Algorithm
Amy Adler
Emily Kempin Professor of Law, NYU School of Law.
The problem of Big Tech has consumed recent legal scholarship and popular discourse. We are reckoning daily with the threats that digital speech platforms like Facebook, X (formerly known as Twitter), TikTok, and YouTube pose to our personal and political lives. Yet while this conversation is raging in discussions about the impact of technology on…
Aug 2024
Article II and the Federal Reserve
Aditya Bamzai & Aaron L. Nielson
Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law, Professor of Law, J. Reuben Clark Law School, Brigham Young University.
The Supreme Court has twice held since 2020 that statutory restrictions on the President’s removal power violate Article II of the U.S. Constitution. Because such removal restrictions create a measure of policy independence from the President, these cases have prompted discussion about the future of independent agencies generally, with special attention to the Federal Reserve…
Aug 2024
Antitrust for Immigrants
Gregory Day
Associate Professor, University of Georgia Terry College of Business; Courtesy Appointment University of Georgia School of Law; Affliated Fellow, Yale Law School Information Society Project.
Immigrants and undocumented people have often encountered discrimination because they compete against “native” businesses and workers, resulting in protests, boycotts, and even violence intended to exclude immigrants from markets. Key to this story is government’s ability to discriminate as well: it is indeed common for state and federal actors to enact protectionist laws and regulations…
Aug 2024
How the Mitigation Doctrine Produces Protections Against Workplace Discrimination
Richard A Gagliardi, III
J.D. Candidate, Cornell Law School, 2024; Ph.D. in Politics, Princeton University, 2021; A.B. in Economics and Political Science, Brown University, 2015; Online Editor, Cornell Law Review Vol. 109.
Employment discrimination weakens the American economy, contributes to inequality, and deprives individuals of career opportunities. Estimates place the annual cost of employment discrimination at over sixty-four billion dollars. Economic research further documents earnings differentials of more than thirty percent between members of different racial groups or genders. To combat employment discrimination, Congress enacted a series…
Aug 2024
Neurosearches
Josh A. Roth
J.D. Candidate, Cornell Law School, 2024; Articles Editor, Cornell Law Review Vol. 109.
Neurotechnology is advancing exponentially, and the laws of data privacy and security cannot keep pace. Soon, governments will exploit this technology in criminal investigations with what this Note calls “neurosearches.” Scholars have argued against the compelled gathering of neurological evidence as a violation of the Fifth Amendment, likening it to testimony and thus barred as…
Aug 2024
The Right to a Glass Box: Rethinking the Use of Artificial Intelligence in Criminal Justice
Brandon L. Garrett & Cynthia Rudin
L. Neil Williams, Jr. Distinguished Professor of Law, Duke University School of Law and Faculty Director, Wilson Center for Science and Justice, Earl D. McLean, Jr. Professor of Computer Science, Electrical and Computer Engineering, Statistical Science, Mathematics, and Biostatistics & Bioinformatics, Duke University.
Artificial intelligence (“AI”) increasingly is used to make important decisions that affect individuals and society. As governments and corporations use AI more pervasively, one of the most troubling trends is that developers so often design it to be a “black box.” Designers create AI models too complex for people to understand or they conceal how…
Apr 2024