Print Volume 110 – Cornell Law Review

Category: Print Volume 110

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

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

The Law of Creativity?

Andres Sawicki

Professor of Law, University of Miami School of Law; Director, Frost Institute for Data Science & Computing.

What are the barriers to progress? For decades, IP scholars had an easy answer: suboptimal private investment in public goods. Recent work on the psychology and sociology of creativity has, however, undermined this easy answer. Simply put, the level of private investment does not dictate the “Progress” of “Science and useful Arts.” As a result,…

Mar 2025

How the FTC Ban On Noncompetes Will Impact Use of the Inevitable Disclosure Doctrine

Amanda Shoemaker

J.D., Cornell Law School, 2024; B.S., Marketing and Media Arts, Bentley University, 2021.

This Note argues that some courts might increase their use of the inevitable disclosure doctrine if the FTC rule banning noncompetes survives legal challenge. The Note begins from the premise that the reason many courts reject the inevitable disclosure doctrine is that if the employer wanted to protect itself against the competition of former employees,…

Mar 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;…

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…

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…

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…

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…

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…

Treating the Administrative as Law: Responding to the “Judicial Aggrandizement” Critique

Chad Squitieri

Assistant Professor of Law, Catholic University of America, Columbus School of Law.

Modern separation-of-powers jurisprudence—including key decisions decided during the Supreme Court’s 2023-24 term—has been critiqued on the grounds that it constitutes “judicial aggrandizement,” i.e., that it impermissibly empowers federal courts to decide separation-of-powers questions better left to Congress and the President. This “judicial aggrandizement” critique goes too far to the extent it suggests that federal courts…

Category: Print Volume 110

Andres Sawicki Professor of Law, University of Miami School of Law; Director, Frost Institute for Data Science & Computing.

Amanda Shoemaker J.D., Cornell Law School, 2024; B.S., Marketing and Media Arts, Bentley University, 2021.

Andres Sawicki

Professor of Law, University of Miami School of Law; Director, Frost Institute for Data Science & Computing.

Amanda Shoemaker

J.D., Cornell Law School, 2024; B.S., Marketing and Media Arts, Bentley University, 2021.