Volume 101 Issue 2 Cornell Law Review
Volume 101 Issue 2

Open Minds and Harmless Errors: Judicial Review of Postpromulgation Notice and Comment

In 2012, the Government Accountability Office surprised many administrative law specialists by reporting that fully 35% of major rules and 44% of nonmajor rules issued by federal government agencies lacked prepromulgation notice and opportunity for public comment. For at least most of the major rules, however, the issuing agencies accepted comments from the public after issuing the rule, and in most […]

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The Not-So-Merry Wives of Windsor: The Taxation of Women in Same-Sex Marriages

In United States v. Windsor, the Supreme Court invalidated the Defense of Marriage Act definition of marriage as “between one man and one woman,” heralding its subsequent recognition, in Obergefell v. Hodges, of a constitutional right to same-sex marriage. Windsor cleared the way for same-sex couples to be treated as married under federal tax laws, and the Obama administration promptly announced […]

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Breaking the Vicious Cycle of Patent Damages

Patent law is implicitly, and sometimes explicitly, based upon a story of patent infringement in which technology users are presumed to be able to discover relevant patents in advance and either design around them or negotiate patent licenses before using the patented technology. That story does not hold true in many fields today, in which the number and widespread ownership of […]

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The Copperweld Question: Drawing the Line Between Corporate Family and Cartel

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Facing the Music: Moral Intellectual Property Rights as a Solution to Artist Outrage about Music Torture

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Executive Privilege as Constitutional Common Law: Establishing Ground Rules in Political-Branch Information Disputes

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What Comes After “Get a Warrant”: Balancing Particularity and Practicality in Mobile Device Search Warrants Post-Riley

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Pragmatism Rules

The Roberts Court’s decisions interpreting the Federal Rules of Civil Procedure are reshaping the litigation landscape. Yet neither scholars, nor the Court itself, have articulated a coherent theory of interpretation for the Rules. This Article constructs a theory of Rules interpretation by discerning and critically examining the two starkly different methodologies the Roberts Court applies in its Rules cases. It traces the […]

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Constitutional Law and the Law of Evidence

When a constitutional right conflicts with an evidentiary rule that would otherwise allow a piece of evidence to be admitted at trial, should the constitutional right be a “trump”? The Supreme Court and lower courts have often interpreted the Constitution to abstain from regulating questions of trial evidence. Taking the opposite course, courts have displaced evidence law to dramatic effect, as […]

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Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals

A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this “fact,” and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels—such as courts might well […]

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