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Category: Notes

Note

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

Note

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

Note

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.

Aug 2021

Note

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…

Aug 2021

Note

Left at the Gate: How Gate Money Could Help Prisoners Reintegrate Upon Release

Ji Hyun Rhim, B.A., Waseda University, 2014; J.D., Cornell Law School, 2020

“The First Step Act . . . addresses reform of the incarceration experience as well as the reentry process. . . . What the main components of this legislation, along with different conversations about ways to reduce recidivism, oftentimes overlooks is the immediate needs of the individual upon release. This Note contends that ‘release’ is a distinct phase between incarceration and reentry and that reentry can only be successful if the individual is truly released. Moreover, this Note argues that current gate money policies fall woefully short of its original purpose. This Note concludes by calling for a revamping of gate money policies as an effective method of reintegrating recently released individuals and reducing recidivism.”

Mar 2021

Note

“The Intent to Influence”: Jury Tampering Statutes and the First Amendment

Miranda Herzog, B.A., University of Southern California, 2016; J.D., Cornell Law School, 2020; Executive Editor, Cornell Law Review, Volume 105

Part I of this Note discusses and categorizes various approaches to the criminalization of jury tampering and identifies a subset of jury tampering statutes whose essential requirement is simply communication with the intent to influence a juror. Part II details several recent First Amendment challenges to these statutes, all involving defendants who engaged in some degree of public participation through their communications with jurors. Part III illustrates how the broad formulation of communication-plus-intent jury tampering statutes implicates First Amendment concerns and suggests that these statutes must be narrowed to exclude public participation in order to pass constitutional muster.

Mar 2021

Note

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

Note

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

Note

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

Note

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

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