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Volume 106

Articles

Employment Practices Liability Insurance and Ex Post Moral Hazard

Erin E. Meyers, J.D./Ph.D., Program in Law and Economics, Vanderbilt Law School

Joni Hersch, Cornelius Vanderbilt Professor of Law and Economics, Vanderbilt Law School

Many businesses purchase Employment Practices Liability Insurance (EPLI), a form of insurance that protects them from claims of discrimination, harassment, retaliation, and wrongful termination. But critics of EPLI argue that allowing insurance coverage for employment liability detracts from employment law’s goal of deterrence and from notions of justice. We assess the validity of these criticisms…

Aug 2021

Women on the Frontlines

Michele Goodwin, Chancellor’s Professor of Law & Founding Director, Center for Biotechnology & Global Health Policy at the University of California, Irvine

This Article takes aim at the troubling and persistent dis-empowerment and invisibility of women generally, and particularly marginalized women of color even one hundred years after the ratification of the Nineteenth Amendment. It observes how the persistence of sexism, toxically combined with racism, impedes full political, economic, and social personhood of women and girls in…

Aug 2021

Civil Liberties in a Pandemic: The Lessons of History

Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

Michele Goodwin, Chancellor’s Professor at the University of California, Irvine; founding director of the Center for Biotechnology and Global Health Policy

Throughout American history, whenever there has been a crisis the response has been a deprivation of rights. Today, the United States is in the midst of the worst health crisis in over a century. As of this writing, over 500,000 people have died.1Johns Hopkins U. & Med. Coronavirus Resource Ctr., https://coronavirus.jhu.edu/ [https://perma.cc/XK5J-Y6KS] (last visited Mar….

Aug 2021

The City’s Second Amendment

Dave Fagundes, Baker Botts LLP Professor of Law, University of Houston Law Center

Darrell A. H. Miller, Melvin G. Shimm Professor of Law, Duke University School of Law

This Article addresses the question of the extent to which cities themselves have a right to bear arms. In addition to advancing the novel claim that cities themselves may assert rights to keep and bear arms, the Article also adds to the growing literature on municipal constitutional rights and the institutional framing of the Second Amendment in a post-Heller world.

Mar 2021

A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism

Neil H. Buchanan, Professor of Law and James J. Freeland Eminent Scholar Chair in Taxation, Fredric G. Levin College of Law, The University of Florida

Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School

This Article argues that we have witnessed substantially less direct conflict between L&E and O&T than one would expect because, despite their different foundations, the two approaches closely resemble each other in a way that permits conservative jurists to make all-things-considered and ideologically laden value choices and then use L&E, O&T, or both to offer post hoc rationalizations for those choices.

Mar 2021

Litigation Science After the Knowledge Crisis

Edith Beerdsen, Acting Assistant Professor of Lawyering, New York University School of Law

This Article is the first to address the broad implications of the Replication Crisis for the production of scientific knowledge in a civil-litigation context. Drawing on insights from the Crisis, it argues that current procedural practice is simply incapable of providing a court with the information it needs to make an accurate assessment of the reliability of scientific evidence. The Article identifies a number of core principles, drawn from the response of academic science to the Replication Crisis, that can guide reforms to the treatment of scientific evidence in civil litigation. It argues that shoring up the courts’ capacity to evaluate scientific evidence requires a rethinking of the entire chain of creation of scientific knowledge and a re-framing of the role of the court in that chain.

Mar 2021

The Evidence Rules That Convict the Innocent

Jeffrey Bellin, Professor, William & Mary Law School

This Article explores the lessons of the Innocence Movement for American evidence law. It argues that the discovery and ongoing chronicle of hundreds of false convictions present a unique opportunity to reevaluate American evidence law. This reevaluation could lead to innocence-protective changes to existing evidence rules and a welcome infusion of energy into evidence policymaking and commentary.

Jan 2021

Inescapable Surveillance

Matthew Tokson, Professor of Law, University of Utah S.J. Quinney College of Law

This Article offers the first systematic analysis of inescapability in Fourth Amendment law. It challenges the prevailing wisdom that inescapability is a desirable or workable basis for Fourth Amendment protection. Inescapability does not provide a conceptually coherent standard for courts to apply. It incentivizes consumers to forego beneficial technologies, creating substantial social harms. It fails to adequately protect the most sensitive forms of personal information. It creates doctrinal confusion and ignores established precedents that contradict the inescapability model. Moreover, inescapability analysis elides individual differences—technologies that are avoidable for most people may be unavoidable for others, including the disabled, the poor, and other disadvantaged populations.

Jan 2021

Population-Based Sentencing

Jessica M. Eaglin, Associate Professor of Law, Indiana University Maurer School of Law

This Article addresses the institutionalization of actuarial risk assessments at sentencing by identifying the tension between how courts are responding to actuarial risk assessments at sentencing, and how advocates of the trend want courts to respond to the tools. It also identifies a yet underexplored interest convergence between courts and RAIs’ opponents illuminated by the jurisprudence and worthy of further
exploration going forward.

Jan 2021

The Illusory Promise of Stakeholder Governance

Lucian A. Bebchuk, James Barr Ames Professor of Law, Economics, and Finance, and Director of the Program on Corporate Governance, Harvard Law School

Roberto Tallarita, Terence M. Considine Senior Fellow in Law and Economics, and Associate Director of the Program on Corporate Governance, Harvard Law School

To address growing concerns about the negative effects of corporations on their stakeholders, supporters of stakeholder governance (“stakeholderism”) advocate a governance model that encourages and relies on corporate leaders to serve the interests of stakeholders and not only those of shareholders. We conduct a conceptual, economic, and empirical analysis of stakeholderism and its expected consequences. Stakeholderism, we conclude, is an inadequate and substantially counterproductive approach to addressing stakeholder concerns.

Dec 2020

Notes

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

Are There Rights in Guantánamo Bay: The Great Writ Rings Hallow

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

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

“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

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

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

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

Disparate Defense in Tribal Courts: The Unequal Rights to Counsel as a Barrier to Expansion of Tribal Court Criminal Jurisdiction

Samuel Macomber, J.D., Cornell Law School, 2020.

This Note argues that modifying the right to counsel for Indians will help expand tribal court criminal jurisdiction over non-Indians. Fixing the discrepancy in representation between Bryant and Jaimez may increase U.S. Congress’s faith in tribal courts and thus encourage Congress to extend tribal jurisdiction over more non-Indian offenders. This Note arises from a deeply held belief in both the rights of the accused as presumptively innocent and the rights of tribes as sovereign nations.

Dec 2020

Volume 106, Issue 2

Articles

The Evidence Rules That Convict the Innocent - Jan 2021

Inescapable Surveillance - Jan 2021

Population-Based Sentencing - Jan 2021

Notes

Second-Class Citizens Under the Second Amendment: The Case for Applying Strict Scrutiny to Lifetime Firearm Bans for Individuals Previously Committed to Mental Institutions - Jan 2021

Compelling Code: A First Amendment Argument Against Requiring Political Neutrality in Online Content Moderation - Jan 2021

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