Cornell Law Review

Cornell Law Review Online

Treating the Administrative as Law: Responding to the “Judicial Aggrandizement” Critique

Chad Squitieri

Assistant Professor of Law, Catholic University of America, Columbus School of Law.

Modern separation-of-powers jurisprudence—including key decisions decided during the Supreme Court’s 2023-24 term—has been critiqued on the grounds that it constitutes “judicial aggrandizement,” i.e., that it impermissibly empowers federal courts to decide separation-of-powers questions better left to Congress and the President. This “judicial aggrandizement” critique goes too far to the extent it suggests that federal courts…

Dec 2024

New Vision, Old Model: How the FTC Exaggerated Harms When Rejecting Business Justifications for Noncompetes

Alan J. Meese

Ball Professor of Law and Director, Center for the Study of Law & Markets, William & Mary Law School.  

The Federal Trade Commission has rejected consumer welfare and the Rule of Reason—standards that drove antitrust for 50 years—in favor of a “NeoBrandeisian” vision. This approach seeks to enhance democracy by condemning abuses of corporate power that restrict the autonomy of employees and consumers, regardless of impact on prices or wages. Pursuing this agenda, the…

Jun 2024

A Common Law for the Age of Amici: How the Party-Presentation Principle Can Help Identify Binding Precedent

David S. Coale

Partner, Lynn Pinker Hurst & Schwegmann, LLP, Dallas, Texas.  

Two recent Supreme Court cases suggest an additional dimension for the traditional test that distinguishes dicta from holding.  In the first, United States v. Sineneng-Smith, the Ninth Circuit reversed a criminal conviction based on arguments made by amici appointed by that court. The Supreme Court then reversed 9-0, holding that the Ninth Circuit’s handling of…

May 2024

The Expansive ‘Sensitive Places’ Doctrine: The Limited Right to ‘Keep and Bear’ Arms Outside the Home

Julia Hesse & Kevin Schascheck II

Julia Hesse is the co-chair of Healthcare Group at Choate Hall & Stewart LLP. She is a graduate of the University of Pennsylvania Law School ’01 and the University of Pennsylvania Center for Bioethics ’01.

Kevin Schascheck is currently serving as a federal law clerk. No view expressed herein reflects the opinion or written work of the judge for whom he is clerking. He is a graduate of the University of Virginia School of Law ’22.

In Bruen, the Supreme Court struck down New York’s “may-issue” licensing regime, recognized the right to carry arms outside the home, and announced the historical analogue method to analyze the constitutionality of modern gun laws. In doing so, the Court did not disavow the ‘sensitive places’ doctrine announced in Heller. In response, New York and…

Jan 2024

Historical Appendix to “The Expansive ‘Sensitive Places’ Doctrine: The Limited Right to ‘Keep and Bear’ Arms Outside the Home”

Julia Hesse and Kevin Schascheck II

 

The following is not intended to be an exhaustive list of laws providing locational or temporal restrictions on firearms, and instead represents the laws we identified in approximately 40-50 hours of research. These laws are gathered into categories. The same law may be listed in multiple categories (e.g., if a law restricted carriage or firing…

Jan 2024

How Did A Rogue 2011 IRS Instruction Produce A Nonsensical and Punitive AMT Investment Interest Expense Deduction Computational Formula and Nobody Knows It?

Jay Katz

Associate Professor of Instruction, University of South Florida

The Essay is organized as follows: Part I reveals the lack of any explanatory guidance or commentator attention to the 2011 IRS instruction apparent radical change to the AMT Computational Formula that is hiding in plain sight. Next, Part II examines the AMT Computational Formula prior to the TAMRA Amendment. Also included is a discussion…

Dec 2023

The Leadership Limitation on Persecutors and Terrorist Organizations

Josh A. Roth
J.D. Candidate, Cornell Law School, 2024.

The asylum system in the United States is a melting pot of political discourse, international relations, and novel questions of law. Among other legal requirements, an asylee bears the burden of showing (1) they were persecuted or have a well-founded fear of future persecution and (2) that the persecution was committed by the government or…

May 2023

Antitrust Remedies for Fissured Work

Brian Callaci & Sandeep Vaheesan
Chief economist, Open Markets Institute & Legal director, Open Markets Institute

Can parties control independent trading partners through contract? Antitrust law in the United States has confronted this question since its inception. From the 1940s through the 1970s, the Supreme Court generally held that corporations could not control the business decisions of distributors and suppliers using contracts, or vertical restraints in the parlance of antitrust. For…

Mar 2023

Anecdotes Versus Data in the Search for Truth About Multidistrict Litigation

Lynn A. Baker, Frederick M. Baron Chair in Law, University of Texas School of Law & Andrew Bradt, Professor of Law; Associate Dean of J.D. Curriculum & Teaching; University of California, Berkeley School of Law

A reply to Elizabeth Chamblee Burch & Margaret S. Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, 107 Cornell Law Review 1835 (2022). To read this Comment, please click here: Anecdotes Versus Data in the Search for Truth About Multidistrict Litigation

Jan 2023

Data Versus More Data in Multidistrict Litigation

Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law, University of Georgia School of Law

A reply to Lynn A. Baker & Andrew Bradt, Anecdotes in the Search for Truth About Multidistrict Litigation, 107 Cornell Law Review Online 249 (2023). To read this Comment, please click here: Data Versus More Data in Multidistrict Litigation

Jan 2023