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Notes

Trending Towards Leniency: What Millenium Laboratories & In re Plavix Marketing Teach About the Future of the False Claims Act’s First-to-File Rule

Zachary Sizemore, Cornell Law School, J.D. 2021.

Part I of this Note will discuss the history and development of the FCA, including its original purpose and modern use, why Congress added the first-to-file rule, and how the provision traditionally operated to bar later-filed claims. Part II will discuss the First and Third Circuits’ case law and overall jurisprudence regarding the first-to-file rule. It will also illustrate the First and Third Circuits’ FCA jurisprudence as a whole by looking to how the First and Third Circuits decided certain other issues arising under or related to the FCA. Part III will then discuss the factors that led to the circuits’ decisions in Millenium Labs and In re Plavix Marketing. This includes a mix of both external factors—like the rulings of other circuits—and internal factors, like the First and Third Circuits’ jurisprudence: their continued leniency in cases involving the FCA and their case law signaling the eventual recharacterization of the rule as nonjurisdictional. Part IV will briefly extract some lessons that these decisions can teach about what to look for in determining how a circuit might interpret the rule going forward, and based on these, predict that the Ninth Circuit will soon join these circuits in holding that the rule is nonjurisdictional. The Note will ultimately conclude that the decisions were simply a product of the First and Third Circuits’ FCA case law and the fact that federal courts should be more lenient on plaintiffs bringing claims under the FCA.

Sep 2021

Finding Benevolent Neutrality in Land Use: RLUIPA’s Equal Terms Provision and the Human Flourishing Theory of Property

Hun Lee, B.A., Catholic University of Korea, 2016; J.D., Cornell Law School, 2021.

This Note will examine the circuit courts’ different approaches to interpreting the Equal Terms provision and suggest that the provision should be interpreted from the perspective of property law rather than the current judicial framework, which is inapt to resolve the inherent tension underlying RLUIPA and First Amendment jurisprudence. The Note will first identify this tension in Part I by surveying the history of RLUIPA in relation to the evolution of First Amendment jurisprudence. Part II will analyze the different approaches that circuit courts have taken to interpret RLUIPA’s Equal Terms provision, concluding that existing judicial approaches and the commentaries thereof call for an alternative approach informed by principles of property law. Part III will introduce a property theory based on the concept of human flourishing, arguing that the theory can provide an effective interpretive framework that may resolve issues regarding religious land use such as the interpretation of RLUIPA’s Equal Terms provision.

Sep 2021

Second-Class Citizens Under the Second Amendment: The Case for Applying Strict Scrutiny to Lifetime Firearm Bans for Individuals Previously Committed to Mental Institutions

Lauren Devendorf, B.A., Duke University, 2015; J.D., Cornell Law School, 2020; Publishing Editor, Cornell Law Review, Vol. 105.

This Note seeks to critique the conflicting approaches that the Third, Sixth, and Ninth Circuits have taken when analyzing what Second Amendment rights, if any, individuals are entitled to after a mental institution involuntarily commits them. Additionally, this Note offers a novel solution. To do so, it explores “not the what, where, when, or why of the Second Amendment’s limitations—but the who.” Tyler v. Hillsdale Cty. Sheriff’s Dep’t (Tyler I), 775 F.3d 308, 322 (6th Cir. 2014), vacated, 837 F.3d 678 (2016).

Jan 2021

Compelling Code: A First Amendment Argument Against Requiring Political Neutrality in Online Content Moderation

Lily A. Coad, B.A., Duke University, 2018; J.D., Cornell Law School, 2021; Publishing Editor, Cornell Law Review, Vol. 106.

In 2019, Senator Josh Hawley (R-Mo.) introduced a bill that exemplifies conservatives’ criticisms of big tech and Section 230. The Ending Support for Internet Censorship Act seeks to eradicate the alleged “anti‑conservative bias” on social media platforms by requiring large tech companies to maintain politically neutral content moderation algorithms and practices. This Note argues that requiring tech companies to maintain politically neutral content moderation algorithms is a form of compelled speech and is therefore presumptively unconstitutional under the First Amendment. Further, it argues that Senator Hawley’s bill cannot survive the applicable standard of strict scrutiny because eliminating alleged political bias by social media companies is not a compelling government interest, and, even if it were, the bill is not narrowly tailored to serving that interest.

Jan 2021

Venue Above the Clouds: Prosecuting In-Flight Crimes By Creating A “High Skies” Law

Philip J. Duggan, B.A., St. Lawrence University, 2015; J.D., Cornell Law School, 2021.

The debate about how to determine a proper venue exemplifies this shifting legal landscape. Recently, statutory and constitutional questions of venue have divided courts and sewn uncertainty as to where defendants charged with in-flight crimes can face justice. This Note calls upon Congress to revise a well-known statute in order to fix the escalating problem of in-flight venue and bring this aspect of criminal procedure into the twenty-first century.

Dec 2020

Disparate Defense in Tribal Courts: The Unequal Rights to Counsel as a Barrier to Expansion of Tribal Court Criminal Jurisdiction

Samuel Macomber, J.D., Cornell Law School, 2020.

This Note argues that modifying the right to counsel for Indians will help expand tribal court criminal jurisdiction over non-Indians. Fixing the discrepancy in representation between Bryant and Jaimez may increase U.S. Congress’s faith in tribal courts and thus encourage Congress to extend tribal jurisdiction over more non-Indian offenders. This Note arises from a deeply held belief in both the rights of the accused as presumptively innocent and the rights of tribes as sovereign nations.

Dec 2020

Cornell Law Review, Volume 106, Issue 5

Cornell Law Review is proud to announce Volume 106, Issue 5! Thank you to our amazing authors for their outstanding collaboration and patience with us during the COVID-19 pandemic. Please see below for a complete list of Vol. 106, Issue 5 authors and their scholarship. Articles Law as a Battlefield: The U.S., China, and the…

Oct 2021

Cornell Law Review, Volume 106, Issue 4

Thank you to our amazing authors for their outstanding collaboration and patience with us during the COVID-19 pandemic. Please see below for a complete list of Vol. 106, Issue 4 authors and their scholarship. Articles Civil Liberties in a Pandemic: The Lessons of History Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law,…

Oct 2021

New Publication: Volume 106, Issue 3

Articles The City’s Second Amendment Dave Fagundes, Baker Botts LLP Professor of Law, University of Houston Law Center Darrell A. H. Miller, Melvin G. Shimm Professor of Law, Duke University School of Law This Article addresses the question of the extent to which cities themselves have a right to bear arms. In addition to advancing…

Mar 2021

Cornell Law Review, Vol. 106, Issue 2

Cornell Law Review is proud to announce Vol. 106, Issue 2. Thank you to our amazing authors for their outstanding collaboration and patience with us during the COVID-19 pandemic. Please see below for a complete list of Vol. 106, Issue 2 authors and their scholarship. ARTICLES The Evidence Rules That Convict the Innocent Jeffrey Bellin, Professor, William…

Mar 2021

Cornell Law Review, Volume 106, Issue 1

Cornell Law Review is proud to announce Vol. 106, Issue 1. Thank you to our amazing authors for their outstanding collaboration and patience with us during the COVID-19 pandemic. Please see below for a complete list of Vol. 106, Issue 1 authors and their scholarship. Articles The Illusory Promise of Stakeholder Governance Lucian A. Bebchuk, James Barr…

Feb 2021

Cornell Law Review Volume 105, Issue 7

Cornell Law Review is proud to announce Vol. 105, Issue 7. Thank you to our amazing authors for their outstanding collaboration and patience with us during the COVID-19 pandemic. Please see below for a complete list of Issue 7 authors and their scholarship. ARTICLES Constitutional Rights in the Machine-Learning State Aziz Z. Huq, Frank and…

Nov 2020

Online Symposium on Friday, 10/30—Women on the Front Lines: COVID & Beyond

On Friday, October 30, 2020, 11:00 AM EST to 1:00 PM EST, Cornell Law Review Online will host, Women on the Frontlines: COVID and Beyond, an online symposium that examines the political, economic, social, and legal status of women in light of the COVID-19 pandemic, political turmoil, and racial unrest. To attend the event, register here: https://bit.ly/375nJce….

Oct 2020

Cornell Law Review, Issue 6

Cornell Law Review is proud to announce Vol. 105, Issue 6. Thank you to our amazing authors for their outstanding collaboration and patience with us during the COVID-19 pandemic. Please see below for a complete list of Issue 6 authors and their scholarship. ARTICLES Against Prosecutors I. Bennett Capers, Professor of Law and Director of the…

Oct 2020

Forthcoming in Cornell Law Review Online: Ford’s Hidden Fairness Defect

A consumer saves up to buy a used car. Unbeknownst to him, the vehicle has a design defect—and in a crash, the airbag fails to deploy, leaving his passenger severely injured. Under state law, the injured party has a right to sue the vehicle manufacturer: but where? The obvious forum is the plaintiff’s home forum—it’s…

Sep 2020

Cornell Law Review, Issue 5

Cornell Law Review is proud to announce Vol. 105, Issue 5, with Articles, Essays, and Notes exploring Multidistrict Litigation as a Category; Why Has Antitrust Law Failed Workers?; Legitimate Interpretation—Or Legitimate Adjudication?; Chevron as Construction; International Cultural Heritage Law; and Demanding Trust in the Private Genetic Data Market. Thank you to our amazing authors for…

Sep 2020

Do Reason-Based Abortion Bans Prevent Eugenics?

Sital Kalantry, Associate Professor of Law, Seattle University School of Law

Oct 2021

COVID, Sex Discrimination, and Medical Research

Lori Andrews, J.D., is the Director of the Institute for Science, Law and Technology and Distinguished Professor of Law at IIT Chicago-Kent College of Law.

Bora Ndregjoni, third-year law student at IIT Chicago-Kent College of Law.

Apr 2021

Unequal Representation: Women in Clinical Research

Allison M. Whelan

Associate, Covington & Burling LLP, Washington D.C.; J.D., University of Minnesota Law School; M.A. Bioethics, University of Minnesota.  Special thanks to Professor Michele Goodwin and the editors of the Cornell Law Review.  The views expressed in this article are the author’s and do not represent those of any past, current, or future employer.

Apr 2021

Copyright Silencing

Cathay Y. N. Smith, Associate Professor of Law, University of Montana Blewett School of Law. Thanks to Aman Gebru, Jennifer Sturiale, Jacob Victor, Xiyin Tang, for comments and Nicholson Price and Alex Roberts for organizing the 2020 virtual JIPSA summer workshop. Thanks also to Orly Lobel and her students at University of San Diego School of Law for inviting me to talk about this Essay and Tiger King. Finally, thank you to the diligent law review editors at Cornell Law Review.

Jan 2021

The Electors Clause and the Governor’s Veto

Nathaniel F. Rubin. J.D., Stanford Law School, 2018. My thanks go to Lisa Larrimore Ouellette, Allison Douglis, Fares Akremi, and Adam Hersh—without whose feedback and guidance this Essay would not have been possible.  My thanks too to the editors of the Cornell Law Review for their excellent work under trying conditions—including Victor Flores, Nicholas Pulakos, Lachanda Reid, Gabriela Markolovic, and Jared Quigley. All errors are my own.

Jan 2021

Book Review—Yearning to Breathe Free: Migration Related Confinement in America

Danielle C. Jefferis. Assistant Professor, California Western School of Law. I owe deep gratitude to Professor César Cuauhtémoc García Hernández. His research and scholarship are significant contributions to this field and have pushed me to think critically about my own work. He and I, along with Carrie Rosenbaum and Jennifer Chacón, were in conversation about this book during an Author Meets Reader session at the Law and Society’s 2020 Annual Meeting, and our dialogue refined this piece. I also thank the editors of Cornell Law Review, including Gabriela Markolovic, Nicholas Pulakos, and Victor Flores, who have diligently and skillfully prepared this piece for publication during especially unsettled times. Any and all errors are mine.

Oct 2020

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