Category: Current CLR Print Vol.

Article

Judicial Institutionalism

Rachel Bayefsky

Associate Professor of Law, University of Virginia School of Law.

The idea of institutionalism figures prominently in today’s debates about the role of federal courts in American democracy. For example, Chief Justice Roberts is often described as an institutionalist who seeks to preserve the Supreme Court’s power or reputation. But what exactly is institutionalism, and should judges be institutionalists? Although institutionalism is invoked in public…

Dec 2024

Article

Earning Trade Secrets

Joseph P. Fishman & Deepa Varadarajan

Professor of Law, Vanderbilt Law School, Associate Professor of Law, Georgia State University College of Law.

Every intellectual property right, like every property right generally, has a moment of birth. Whether and when that moment occurs depend on doctrines of original acquisition. In most IP regimes, these doctrines are so fundamental that they’ve been reduced to a single verb. One can get a patent only by inventing, or a copyright only…

Dec 2024

Article

Reproductive Justice at Work: Employment Law after Dobbs v. Jackson Women’s Health Organization

Laura T. Kessler

S.J. Quinney Endowed Chair and Professor of Law, University of Utah, S.J. Quinney College of Law.

In June 2022, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide what…

Dec 2024

Article

Natural‑Person Shareholder Voting

Michael Simkovic

USC Gould School of Law.

“One-share, one-vote” corporate governance often leads to inefficient negative externalities, even when shareholders care about direct harm to themselves and even if corporations respond to shareholder preferences. Because equity ownership is concentrated, while many externalities are more diffuse, corporate voting underweights externalities. But allocating votes according to the principle of “one person, one vote” creates…

Dec 2024

Note

On Bankruptcy Appeals: Equitable Mootness as Gatekeeper to Plan Confirmation Review

Zachary R. Hunt

J.D., Cornell Law School, 2024. M.S. in Finance, University of South Florida, 2021. Senior Articles Editor, Cornell Law Review Vol. 109.

In bankruptcy appeals, the judge-made prudential doctrine of “equitable mootness” allows appellate courts to dismiss an appeal as moot when granting the requested relief would undermine the finality of a substantially consummated plan of reorganization. As applied, however, the doctrine of equitable mootness is neither mootness nor equitable. On the former, equitable mootness is not…

Dec 2024

Note

Payment as Punishment: Establishing College Athletes as Employees to Safeguard Athlete Welfare in the “Super Conference” Era

Haley Lukas

J.D., Cornell Law School, 2025; M.B.A., Cornell SC Johnson College of Business, 2025; B.S. (Business Administration) UC Berkeley, 2017. Prior to law school, Lukas captained the NCAA Division I UC Berkeley (California) women’s soccer team and played professional soccer in multiple top divisions across Europe.

This Note argues the increased profitability and shift toward “super conferences” in Division I college athletics does not comport with the NCAA’s “revered tradition of amateurism” and justifies college athletes’ classification as employees under the Fair Labor Standards Act (FLSA). Rather than making more traditional compensation arguments rooted in fairness or market value, employment status…

Dec 2024

Article

Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd

Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law, University of Georgia School of Law & Margaret S. Williams, Adjunct Faculty, Johns Hopkins University

With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way.  In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was…

Nov 2022

Article

Remote Work and the Future of Disability Accommodations

Arlene S. Kanter, Laura J. and L. Douglas Meredith Professor of Teaching Excellence (2005–07), Syracuse University; Bond, Schoeneck and King Distinguished Professor of Law (2011–13); Director, Disability Law and Policy Program; Director, International Programs, Syracuse University College of Law

When the Americans with Disabilities Act was originally enacted in 1990, and later amended in 2008, technology had not yet advanced to where it is today. In the past decade, sophisticated computer applications and programs have become commonplace. These advances in technology, have enabled millions of employees to work from home since the onset of…

Nov 2022

Article

Discredited Data

Ngozi Okidegbe, Associate Professor of Law & Assistant Professor of Computing and Data Science, Boston University

Jurisdictions are increasingly employing pretrial algorithms as a solution to the racial and socioeconomic inequities in the bail system. But in practice, pretrial algorithms have reproduced the very inequities they were intended to correct. Scholars have diagnosed this problem as the biased data problem: pretrial algorithms generate racially and socioeconomically biased predictions because they are…

Nov 2022

Note

Websites, Wellness, and Winn-Dixie: Telehealth Accessibility During COVID-19 and Beyond

Peyton B. Brooks, J.D., Cornell Law School, 2023

During the COVID-19 pandemic, people with disabilities struggled to find proper access to health care. According to a report by the disability services organization Easterseals, approximately forty-six percent of those who had used Easterseals services lost access to health care between the beginning of the public health emergency in March 2020 and April 2021. Furthermore,…

Nov 2022