Articles
Disentangling Religion and Public Reason: An Alternative to the Ministerial Exception
This Article develops a theory of meaningful work to support an alternative to the ministerial exception that would permit religious organizations to hire like-minded employees, but only when doing so would not subvert the purposes of employment discrimination law. Such an “authenticity exception” can be implemented without state entanglement in religion by distinguishing the inherently religious issue of what makes work religious from the public issue of whether a limitation on someone’s rights is supported by public reasons—reasons that we could all accept as free and equal members of society. It then illustrates the authenticity exception through a similar exception in Canadian law and revisits ministerial exception cases to show how the authenticity exception better closes the gap between religious liberty and exempted discrimination.
Sep 2021
The Constitutionalization of Parole: Fulfilling the Promise of Meaningful Review
This Article suggests a way to bring the current reality of parole closer to the Court’s promise that parole can render life sentences constitutional. This Article considers how the Supreme Court’s decisions in Graham, Miller, and Montgomery work to constitutionalize parole and change the conventional understanding of the board’s determination. The Article also details the current standards of judicial review of parole board decisions. Because parole is now operating to make constitutional the sentences of people who were children at the time of the offense, the Eighth Amendment task placed on parole boards’ shoulders necessitates substantive standards for the parole board, as well as judicial scrutiny of the board’s determinations.
Sep 2021
Law as a Battlefield: The U.S., China, and the Global Escalation of Lawfare
This Article argues that the U.S. needs to develop a lawfare strategy to combat its adversaries. It will first define the concept of lawfare and discuss how its use has evolved and escalated globally in recent years. It will illustrate this phenomenon by examining three different instances of lawfare between China and the U.S. or its allies: China’s non-uniformed maritime militias, international arbitration over China’s claims to the Spratly Islands, and litigation involving the U.S. and Huawei. After discussing the rise of lawfare globally, including lawfare efforts by Russia and the U.S., the Article concludes with recommendations for a U.S. lawfare strategy.
Sep 2021
The Evidence Rules That Convict the Innocent
This Article explores the lessons of the Innocence Movement for American evidence law. It argues that the discovery and ongoing chronicle of hundreds of false convictions present a unique opportunity to reevaluate American evidence law. This reevaluation could lead to innocence-protective changes to existing evidence rules and a welcome infusion of energy into evidence policymaking and commentary.
Jan 2021
Inescapable Surveillance
This Article offers the first systematic analysis of inescapability in Fourth Amendment law. It challenges the prevailing wisdom that inescapability is a desirable or workable basis for Fourth Amendment protection. Inescapability does not provide a conceptually coherent standard for courts to apply. It incentivizes consumers to forego beneficial technologies, creating substantial social harms. It fails to adequately protect the most sensitive forms of personal information. It creates doctrinal confusion and ignores established precedents that contradict the inescapability model. Moreover, inescapability analysis elides individual differences—technologies that are avoidable for most people may be unavoidable for others, including the disabled, the poor, and other disadvantaged populations.
Jan 2021
Population-Based Sentencing
This Article addresses the institutionalization of actuarial risk assessments at sentencing by identifying the tension between how courts are responding to actuarial risk assessments at sentencing, and how advocates of the trend want courts to respond to the tools. It also identifies a yet underexplored interest convergence between courts and RAIs’ opponents illuminated by the jurisprudence and worthy of further
exploration going forward.
Jan 2021
The Illusory Promise of Stakeholder Governance
To address growing concerns about the negative effects of corporations on their stakeholders, supporters of stakeholder governance (“stakeholderism”) advocate a governance model that encourages and relies on corporate leaders to serve the interests of stakeholders and not only those of shareholders. We conduct a conceptual, economic, and empirical analysis of stakeholderism and its expected consequences. Stakeholderism, we conclude, is an inadequate and substantially counterproductive approach to addressing stakeholder concerns.
Dec 2020
Bad Money
This Article represents the first comprehensive examination of the antiquated patchwork of state regulatory frameworks that currently, or might soon, govern these new institutions. It finds that these frameworks are characterized by significant heterogeneity and often fail to meaningfully enhance the credibility of the promises that these institutions make to the holders of their monetary liabilities. Put bluntly: these institutions are issuing bad money. This Article therefore proposes a National Money Act designed to strengthen and harmonize the regulatory frameworks governing these new institutions and promote a more level competitive playing field.
Dec 2020
Automated Legal Guidance
This Article offers one of the first critiques of these new systems of artificial intelligence. It shows that automated legal guidance currently relies upon the concept of “simplexity,” whereby complex law is presented as though it is simple, without actually engaging in simplification of the underlying law. While this approach offers potential gains in terms of efficiency and ease of use, it also causes the government to present the law as simpler than it is, leading to less precise advice and potentially inaccurate legal positions. Using the Interactive Tax Assistant as a case study, the Article shows that the use of simplexity in automated legal guidance is more powerful and pervasive than in static publications because it is personalized, non-qualified, and instantaneous. Further, it argues that understanding the costs as well as the benefits of current forms of automated legal guidance is essential to evaluating even more sophisticated, but also more opaque, automated systems that governments are likely to adopt in the future.
Dec 2020
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
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