Cornell Law Review

Yasmine Leila Kasra

J.D., Cornell Law School, 2026; B.A., Government, Cornell University, 2022. I would like to extend my gratitude to Professor Nelson Tebbe for the generosity of his time and guidance, along with the Cornell Law Review editors for assisting in the publication of this Note. Most importantly, I would like to thank my mother and father for teaching me to have courage in my convictions and speak loudly against injustice. I hope this Note does just that.

Marieya E. Jagroop

J.D., Cornell Law School, 2026; B.A., Political Science, Macaulay Honors College at CUNY John Jay College of Criminal Justice, 2023. Thank you to the editors of Cornell Law Review for their suggestions and edits. This Note is dedicated to the innocent who were pressured to confess and to those working to make sure it never happens again. To truth, fairness, and the hope of a better future.

Clare Ryan

Associate Professor of Law, University of Alabama School of Law. My deepest thanks to the participants in the 2023 and 2024 Family Law Scholars and Teachers Conferences, the 2024 West Coast Gender, Sexuality, and the Law Conference, the 2024 Law & Society Association Annual Meeting, the Northeastern University School of Law faculty colloquium, the Yale Law School PhD in Law 10th Anniversary conference, and the 2024 Junior/Senior Faculty workshop, as well as to my wonderful colleagues at the University of Alabama School of Law for their insights. I am also grateful to my excellent research assistants, Margaret-Anne Stewart, Sydney Hardern, and Bailey Ruhm for their hard work. My thanks to the editors of Cornell Law Review.

Alexa Perez

Assistant Professor of Law at Drake University Law School.

Many thanks to Andrea Dennis, Laura Appleman, Erin Sheley, Danielle Shelton, Anthony Gaughan, Andrew Jurs, Mark Kende, Joseph Schomberg, and the participants at the 2024 Evidence Summer Workshop at Vanderbilt Law School and the 2024 Women in Law Teaching Works-in-Progress Workshop at the University of Minnesota Law School for helpful comments and suggestions. For research support, many thanks to Rachel Rozendaal, Michael Blankenship, and the Drake University Law School Library, particularly Karen Wallace, Lexi Brennan, Rebecca Lutkenhaus, and David Hanson. Thanks also to the editors of the Cornell Law Review for their excellent editing and professionalism.

Shweta Kumar

Assistant Professor of Law, University of Kentucky J. David Rosenberg College of Law. I am very grateful to Christopher Morten, John F. Duffy, Joshua Sarnoff, Sapna Kumar, George Horvath, Anya Prince, Larry Solum, Amanda Levendowski, Omolara Bewaji Joseney, Sarah Dorman, Regina Wang, Ashlynn Kendzior, and Sophia Tan for their incredible expertise and insights on this paper. Thank you to the scholars and organizers at the Wiet Life Science Law Scholars Workshop, ASMLE Health Law Professors Conference, Intellectual Property Scholars Conference, and Mid-Atlantic Clinicians Writing Workshop who provided valuable suggestions and helped me workshop this paper.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Albert H. Choi & Jeffery Y. Zhang

Paul G. Kauper Professor of Law at the University of Michigan Law School and Research Member at the European Corporate Governance Institute (“ECGI”); and Assistant Professor of Law at the University of Michigan Law School. The authors thank Daryl Dietsche and Jacob Gerszten for outstanding research assistance as well as the following for insightful conservations: Lucy Chang, Gary Gorton, Howell Jackson, Ryan Rossner, Nicholas Tabor, Mark Van Der Weide, and seminar participants at Vanderbilt Law School, the Williams College Economics Department, the Sixth Conference on Law and Macroeconomics, the International Insolvency Institute Annual Meeting, the AALS Annual Conference, and the ALEA Annual Conference. Finally, the authors thank the editors of the Cornell Law Review for their helpful comments and suggestions.

Francesca L. Procaccini

Assistant Professor of Law, Vanderbilt Law School. For insightful comments and discussions, I thank Rebecca Allensworth, Jack Balkin, Lisa Bressman, Edward Cheng, Gregory Day, Evelyn Douek, Cynthia Estlund, Noah Feldman, Nikolas Guggenberger, Chris Guthrie, Claudia Haupt, Thomas Kadri, Daphne Keller, Genevieve Lakier, Artur Pericles Lima Monteiro, Martha Minow, Blake Reid, Peter Salib, Christopher Serkin, Daniel Sharfstein, Ganesh Sitaraman, Christopher Slobogin, Kevin Stack, Xiangnong (George) Wang, Laura Weinrib, and participants of the Yale Freedom of Expression Scholars Conference and Washington University School of Law Faculty Workshop. Special thanks to Francisco Collantes for superb research assistance and to the editors of the Cornell Law Review for impeccable editing.

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.

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.

Ethan Prall 

Fellow and Doctoral Student, University of Miami, Rosenstiel School of Marine, Atmospheric, and Earth Science (JD, Harvard Law School; MTS, Duke University).

Andres Sawicki

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

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.

Amanda Shoemaker

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

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.

John H. Blume

Samuel F. Leibowitz Professor of Trial Techniques, Cornell Law School and Director the Cornell Death Penalty Project.

Taimie L. Bryant

Professor of Law, UCLA School of Law.