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Cornell Law Review, Volume 106, Issue 5

3 Oct 2021

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 Global Escalation of Lawfare

Jill I. Goldenziel, Professor of International Law and International Relations, Marine Corps University Command and Staff College; Affiliated Scholar, Fox Leadership International, University of Pennsylvania

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.

Disentangling Religion and Public Reason: An Alternative to the Ministerial Exception

Sabine Tsuruda, Assistant Professor, Queen’s University Faculty of Law

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.

The Constitutionalization of Parole: Fulfilling the Promise of Meaningful Review

Alexandra Harrington, Associate Professor of Law and Director, Criminal Justice Advocacy Clinic, University of Buffalo School of Law

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.

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

In 2019, the First Circuit decided United States ex rel. McGuire v. Millenium Laboratories., Inc. (Millenium Labs), holding that the “first-to-file” rule of the False Claims Act (FCA) is a nonjurisdictional—rather than a jurisdictional—bar on later-filed actions. And last year, the Third Circuit joined this position with its holding in In re Plavix Marketing, Sales Practices and Products Liability Litigation (No. II). While these decisions might have been against the weight of national authority, this Note argues that they were not against the growing consensus about the rule, the purpose of the FCA, and, most importantly, the First and Third Circuits’ own FCA jurisprudence. Instead, this Note argues that the circuits’ recent FCA decisions show that they and others have remembered the purpose of the FCA: to encourage private attorneys general to bring claims on behalf of the government.

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.

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