Print Volume 109 – Cornell Law Review

Category: Print Volume 109

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

Altered Stakes: Reimagining the Amount-in-Controversy Requirement

Steven Gensler& Roger Michalski

Gene and Elaine Edwards Family Chair in Law, Professor of Law, University of Oklahoma College of Law, Professor of Law, University of Oklahoma College of Law.

Which state-law cases should Congress allow into federal court? Congress’s answer has always been “only the big ones.” This article revisits the choice to limit diversity jurisdiction to higher-value cases and critically examines how Congress has approached setting the amount threshold. It surveys alternate ways Congress could use case value to sort which cases make…

Sep 2024

Article

Defense Lawyering in the Progressive Prosecution Era

Jenny Roberts

Dean and Professor of Law, Maurice A. Deane School of Law, Hofstra University.

The movement to elect so-called “progressive prosecutors” is relatively new, but there is a robust literature analyzing it from a number of angles. Scholars consider how to define “progressive prosecution,” look at the movement through a racial justice lens, and examine it in the context of rural spaces, deportation, and the pandemic. One essay even…

Sep 2024

Article

Taxing Luxury Emissions

Clinton G. Wallace& Shelley Welton

Associate Professor of Law, University of South Carolina School of Law, Presidential Distinguished Professor of Law & Energy Policy, University of Pennsylvania Carey Law School and Kleinman Center for Energy Policy.

Recent economic and sociological studies have documented the rising challenge of carbon inequality—that is, extreme class disparities in carbon emissions both within the United States and globally. These studies show an alarming divide, with the top 10% of emitters producing half of all emissions and the top 1% alone producing 17% of emissions. Meanwhile, the…

Sep 2024

Note

Takings and Homeowners’ Expectations in Times of Rapid Climate Change

Gijs de Bra

J.D. Candidate, Cornell Law School 2025; M.S., University of Amsterdam 2019.

This Note argues that courts should give more weight to climate change when assessing the reasonable investment-backed expectations that define the owner’s property interest. First, the owner’s expectations should be viewed dynamically, evolving over time, because government regulations—climate and disaster controls in particular—must also respond to changing circumstances. Currently, expectations are fixed at the time…

Sep 2024

Category: Print Volume 109

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

Joseph P. Fishman & Deepa Varadarajan Professor of Law, Vanderbilt Law School, Associate Professor of Law, Georgia State University College of Law.

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

Michael Simkovic USC Gould School of Law.

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.

Steven Gensler & Roger Michalski Gene and Elaine Edwards Family Chair in Law, Professor of Law, University of Oklahoma College of Law, Professor of Law, University of Oklahoma College of Law.

Jenny Roberts Dean and Professor of Law, Maurice A. Deane School of Law, Hofstra University.

Clinton G. Wallace & Shelley Welton Associate Professor of Law, University of South Carolina School of Law, Presidential Distinguished Professor of Law & Energy Policy, University of Pennsylvania Carey Law School and Kleinman Center for Energy Policy.

Gijs de Bra J.D. Candidate, Cornell Law School 2025; M.S., University of Amsterdam 2019.

Rachel Bayefsky

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

Joseph P. Fishman & Deepa Varadarajan

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

Laura T. Kessler

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

Michael Simkovic

USC Gould School of Law.

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.

Steven Gensler& Roger Michalski

Gene and Elaine Edwards Family Chair in Law, Professor of Law, University of Oklahoma College of Law, Professor of Law, University of Oklahoma College of Law.

Jenny Roberts

Dean and Professor of Law, Maurice A. Deane School of Law, Hofstra University.

Clinton G. Wallace& Shelley Welton

Associate Professor of Law, University of South Carolina School of Law, Presidential Distinguished Professor of Law & Energy Policy, University of Pennsylvania Carey Law School and Kleinman Center for Energy Policy.

Gijs de Bra

J.D. Candidate, Cornell Law School 2025; M.S., University of Amsterdam 2019.