Volume 100 Issue 4 Cornell Law Review
Volume 100 Issue 4

Celebrating One Hundred Years

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Unanimity and Disagreement on the Supreme Court

In 2013, the Supreme Court showed an unusually high rate of unanimous decisions—the highest, in fact, since 1940. This increase in unanimity, long favored by Chief Justice John Roberts, places a spotlight on an insufficiently appreciated fact: in 1941, the Supreme Court experienced a radical transformation. Almost immediately, it changed from a court that had operated by consensus, with very […]

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Administrative Equal Protection: Federalism, the Fourteenth Amendment, and the Rights of the Poor

This Article intervenes in a burgeoning literature on “administrative constitutionalism,” the phenomenon of federal agencies—rather than courts—assuming significant responsibility for elaborating the meaning of the U.S. Constitution. Drawing on original historical research, I document and analyze what I call “administrative equal protection”: interpretations of the Fourteenth Amendment’s Equal Protection Clause in a key federal agency at a time when the Clause’s […]

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Gruesome Speech

May government officials restrict the display of “gruesome images” (in the words of one injunction), chiefly of aborted fetuses but also of slaughtered or injured animals?  How about gruesome words, for instance signs accusing abortion providers of being “murderers” or “killers”? Some courts have upheld such restrictions, chiefly relying on the perceived need to shield […]

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Protecting Winners: Why FRAP 7 Bonds Should Include Attorney Fees

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The Transferred Immunity Trap: Misapplication of Section 1983 Immunities

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Congress’s Tax Bomb: Income-Based Repayment and Disarming a Problem Facing Student Loan Borrowers

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Citizenship and the War on Terror: Should Federal Courts Consider a Plaintiff’s Citizenship in Post-9/11 Litigation?

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The Return of Lochner

For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our “anticanon,” universally reviled by the legal community as the “worst of the worst.” Our first claim in this Article is that […]

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Bait and Switch: Why United States v. Morrison is Wrong About Section 5

In United States v. Morrison, the Supreme Court announced the rule that the Section 5 power cannot be used to regulate private individuals. This is one of the most meaningful and, thus far, durable constraints that the Court has placed on federal power. It is the more surprising, then, that it turns out to be based on essentially nothing […]

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