Cornell Law Review

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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

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 War on Terror & Vigilante Federalism

Maryam Jamshidi

Associate Professor of Law at the University of Colorado Law School.

In their article, Vigilante Federalism, Jon Michaels and David Noll sound the alarm about the rising trend of “vigilante federalism” across various states. As Michaels and Noll describe this phenomenon, Republican-led jurisdictions have been passing private enforcement laws empowering private actors to bring civil suits targeting certain activities and communities, including abortion, LGBTQI persons, and…

Oct 2023

Substance and Form in Vigilante Federalism

Zachary D. Clopton

Professor of Law, Northwestern Pritzker School of Law.

Procedure is power, to be sure, but we should not let a lawyerly interest in procedural design distract from substantive justice. Vigilante Federalism makes an invaluable contribution by showing how a particular procedural form has been used to undermine substantive justice.  The authors deserve enormous credit for documenting, publicizing, and criticizing what they call “private…

Oct 2023

Judicial Process and Vigilante Federalism

Charles W. “Rocky” Rhodes & Howard M. Wasserman

Professor of Law and Charles Weigel II Research Professor of State and Federal Constitutional Law, South Texas College of Law Houston & Professor of Law, FIU College of Law.

Jon Michaels’ and David Noll’s Vigilante Federalism decries the explosion of a specific class of state law—prohibiting locally unpopular, although perhaps constitutionally protected, conduct using private civil litigation as the exclusive or primary enforcement mechanism.  The trend begins with the Texas Heartbeat Act in 2021 (commonly referred to as “S.B. 8”), which prohibited abortions (prior…

Oct 2023

Truth, Reason, Justice, and Evidence Law

Talia Fisher

Anny and Paul Yanowicz Professor of Human Rights, Tel Aviv University Faculty of Law and visiting fellow at Harvard Law School’s  Program on Behavioral Economics and Public Policy (2023).

This Essay addresses the most fundamental jurisprudential question underlying the institution of evidence law: it explores the justifications for subjecting legal fact‑finding to the regulation of evidence rules.  This issue has been at the center of evidence law scholarship since the days of Bentham’s Rationale of Judicial Evidence, which advocated a naturalistic approach to legal…

Oct 2023

Incentive-Compatible Inflation Policy

Brian Galle

Professor of Law, Georgetown University Law Center

Imagine that we had to fight and adapt to the COVID-19 epidemic using only vintage 1970s technology. No mRNA vaccines; no designer anti-viral drugs. Want to work from home? Try that on a dial-up modem that transmits about 800 bits of information per second (today’s high-speed internet is literally one hundred million times faster). Nevertheless,…

Jul 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