Cornell Law Review

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, University of California, Berkeley School of Law

Michele Goodwin, Chancellor’s Professor at the University of California, Irvine; founding director of the Center for Biotechnology and Global Health Policy

Throughout American history, whenever there has been a crisis the response has been a deprivation of rights. Today, the United States is in the midst of the worst health crisis in over a century. As of this writing, over 500,000 people have died. The pandemic reveals underlying institutional and infrastructural problems in society. We argue, based on history, there is every reason to fear that the pandemic could be used as justification for a massive deprivation of rights and abuses.

Women on the Frontlines

Michele Goodwin, Chancellor’s Professor of Law & Founding Director, Center for Biotechnology & Global Health Policy at the University of California, Irvine

This Article takes aim at the troubling and persistent dis-empowerment and invisibility of women generally, and particularly marginalized women of color even one hundred years after the ratification of the Nineteenth Amendment. It observes how the persistence of sexism, toxically combined with racism, impedes full political, economic, and social personhood of women and girls in society, sometimes to deadly effect.

Employment Practices Liability Insurance and Ex Post Moral Hazard

Erin E. Meyers, J.D./Ph.D., Program in Law and Economics, Vanderbilt Law School

Joni Hersch, Cornelius Vanderbilt Professor of Law and Economics, Vanderbilt Law School

Many businesses purchase Employment Practices Liability Insurance (EPLI), a form of insurance that protects them from claims of discrimination, harassment, retaliation, and wrongful termination. But critics of EPLI argue that allowing insurance coverage for employment liability detracts from employment law’s goal of deterrence and from notions of justice. We assess the validity of these criticisms by examining the nature of employment law claims and by reviewing characteristics of the current EPLI market. We find that past critiques miss the mark in diagnosing EPLI’s major problem.

Essays

Protecting Pregnancy

Jennifer Bennett Shinall, Professor of Law, Vanderbilt Law School

This Essay provides empirical insight into this question, which is important for setting legislative priorities. After exploiting the differential timing of these laws’ passage at the state level, the Essay finds across multiple specifications that pregnancy accommodation laws and paid family leave laws have several labor market benefits for women who have given birth in the past year. Conversely, pregnancy transfer laws may have unintended, negative consequences for women who have recently given birth. The results suggest that advocacy groups, who have typically favored all four types of legislation, should shift their focus to supporting accommodation and paid family leave laws.

Notes

Patenting Pot: The Hazy Uncertainty Surrounding Cannabis Patents

Andrew Kingsbury, Arizona State University, B.S., Health Sciences, 2018; Cornell Law School, J.D., 2021

This Note explains the problems that surround cannabis patents. Part I provides an overview of patent law and discusses cannabis’s regulatory history. Part II expands on the topics discussed in Part I and explains how the lack of prior art within the cannabis space promulgates uncertainty for cannabis inventors. Part III argues for stronger claim requirements in cannabis patents and advocates for greater flexibility when factfinders evaluate cannabis patents. Further, Part III suggests alternative approaches to claim construction for challenged cannabis patents.

Are There Rights in Guantánamo Bay: The Great Writ Rings Hollow

Kayla Anderson, J.D. Candidate, Cornell Law School, 2021; Notes Editor, Cornell Law Review, Volume 106; B.A. Arizona State University, 2017

This Note argues that the district court should decide that the entirety of the Fifth Amendment applies to Guantánamo Bay detainees given previous jurisprudence, the nature of the War on Terror, and the protection of detainee rights. However, this Note also details that the possible ramifications of such a broad decision render it unlikely that the district court will decide that the Fifth Amendment applies in full in Qassim. Additionally, this Note argues that no matter what decision the district court makes regarding the Fifth Amendment, the court should also institute a CIPA-like review process that affords Guantánamo Bay detainees with meaningful habeas review.