Cornell Law Review Online The Online Presence of Cornell Law Review

On NPEs, Holdups, and Underlying Faults in the Patent System

This piece offers commentary on two essays in the current volume of the Cornell Law Review: James Bessen and Michael J. Meurer’s The Direct Costs from NPE Disputes and David L. Schwartz and Jay P. Kesan’s Analyzing the Role of Non-Practicing Entities in the Patent System. Schwartz and Kesan’s essay critiques Bessen and Meurer and [...]

Read More :: View PDF

The Implications of Private Environmental Governance

Many of us first learned about the role of government through middle school civics class. In the simplest view, an important governmental function is to manage the exploitation of common pool resources in the face of pressure from individuals and corporations who have incentives to over exploit the resource, and who face collective-action problems in [...]

Read More :: View PDF

Revisiting Constitutional Retroactivity in New York After Danforth: Should Padilla and Other Supreme Court Guilty Plea Counsel Cases Prompt a Change From Eastman-Teague, or Adherence to Chaidez?

Nearly two decades ago, in People v. Eastman, the New York Court of Appeals––in considering whether or not to apply a newly announced rule of criminal procedure under the United States Constitution to criminal cases pending solely on state court collateral review––concluded that state courts were “constitutionally commanded” to apply the rubric fashioned by the [...]

Read More :: View PDF

Do For-Profit Corporations Have Rights of Religious Conscience?

Challenges by for-profit corporations to the Affordable Care Act’s requirement that employers provide their employees with medical insurance packages that include coverage for contraceptives have raised questions under the Religious Freedom Restoration Act (RFRA) and the Constitution. This Essay discusses a threshold question in the constitutional challenges: Do for-profit corporations have rights of religious conscience [...]

Read More :: View PDF

Employer Costs and Conflicts Under the Affordable Care Act

Qualified employers must provide health care coverage under the Patient Protection and Affordable Care Act of 2010 (ACA) or face a fine beginning January 2015. As employers actively attempt to minimize the costs that they will incur, the possibility emerges that employers will retaliate against or harass employees who seek coverage. This Essay discusses the [...]

Read More :: View PDF

The IRS Tea Party Controversy and Administrative Discretion

The Internal Revenue Service (IRS) has no choice but to exercise discretion in administering the tax law. It oversees a vast system that affects nearly everyone. The law is often hideously complex and sometimes requires the IRS to draw impossibly fine lines. The IRS must also make choices about how to allocate its limited resources [...]

Read More :: View PDF

Unions, Corporations, and the First Amendment: A Response to Professors Fisk and Chemerinsky

In its 2012 ruling in Knox v. SEIU Local 1000, the Supreme Court signaled that major changes may be coming to the body of First Amendment law governing public-sector unions’ relationships with nonmember employees who work in the bargaining units that those unions represent. The Court’s actual holding in Knox was not the most portentous [...]

Read More :: View PDF

Is More Information Always Better? Mandatory Disclosure Regulations in the Prescription Drug Market

Pharmacy benefit managers (PBMs) save Americans billions of dollars each year by lowering the prices of prescription drugs and the costs of prescription drug coverage. However, as I explain in this Article, mandatory disclosure regulations recently enacted in several states and at the federal level under the Affordable Care Act threaten to disrupt the cost [...]

Read More :: View PDF

Accidental Suicide Pacts and Creditor Collective Action Problems: The Mortgage Mess, the Deadweight Loss, and How to Get the Value Back

For six years now, the nation has been struggling with the fallout of a residential real estate bubble and bust. From their 2006 highs, housing prices are down nationally by 26.4%. In harder hit communities, the figure is significantly higher. In Nevada, for example, house prices remain 51.6% below their 2006 peak levels. This is [...]

Read More :: View PDF

Reform or Abolition? A Comment on Colleen V. Chien & Mark A. Lemley, Patent Holdup, the ITC, and the Public Interest

Colleen Chien and Mark Lemley’s paper, Patent Holdup, the ITC, and the Public Interest, proposes three principal reforms to the manner in which the International Trade Commission (hereinafter, the “ITC” or “the Commission”) should exercise its discretion in awarding exclusion orders against the importation of patent-infringing goods: first, the ITC should sometimes soften the impact [...]

Read More :: View PDF