Articles
Chevron as Construction
In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand…
Jul 2020
Legitimate Interpretation—Or Legitimate Adjudication
Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much better account of actual practice. This Article argues that if…
Jul 2020
MDL as Category
Multidistrict litigation (MDL) dominates the federal civil docket. MDL has been used to consolidate hundreds of thousands of cases, including with respect to asbestos, the BP oil spill, Johnson & Johnson baby powder, NFL concussions, opioids, and more. In recent years, MDL has attracted the attention of reformers and scholars, who have offered proposals for…
Jul 2020
Why has Antitrust Law Failed Workers?
In the last several years, economists have learned about an antitrust problem of vast scope. Far from approximating the conditions of perfect competition as long assumed, most labor markets are characterized by monopsony—meaning that employers pay workers less than their productivity because workers lack a credible threat to quit and find a higherpaying job in…
Jul 2020
An Essay on the Quieting of Products Liability Law
For several decades, courts and commentators have disagreed as to whether the standard for liability in product design defect cases should be based on risk-utility tradeoffs or disappointed consumer expectations. Although a strong majority opt for risk-utility a significant minority of courts adopt the consumer expectations test. This Essay contends that as a practical matter…
May 2020
The Paradoxical Impact of Scalia’s Campaign Against Legislative History
Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with…
May 2020
Torts as Private Administration
What does tort law do? This Article develops an account of the law of torts for the age of settlement. A century ago, leading torts jurists proposed that tort doctrine’s main function was to allocate authority between judge and jury. In the era of the disappearing trial, we propose that tort law’s hidden function is…
May 2020
The Corporate Privacy Proxy
This Article contributes to the First Amendment corporate privacy debate by identifying the relevance of agriculture security legislation, or ag-gag laws. Ag-gag laws restrict methods used to gather and disseminate information about commercial food cultivation, production, and distribution—potentially creating a “right” to control or privatize nonproprietary information about animal and agribusinesses. Yet, corporate privacy rights…
May 2020
Remutualization
Lynn Stout heartily embraced heterodox economic theories for describing capital markets and a progressive zeal for reforming them. Yet when she came to formulate her policy prescriptions for financial markets, one of the most prominent progressive corporate and financial law scholars of the twentieth century could sometimes take these twin intellectual engines into surprisingly “conservative”…
Mar 2020
Cryptocommunity Currencies
What are cryptocurrencies: securities, commodities, or something else? Maybe they are a new form of established currency—a non-sovereign fiat currency. Like other self-governing bodies, the communities that issue cryptocurrencies should be judged on how well they support their currencies. This analysis is not meaningfully different from how we have evaluated traditional sovereign issuers of currency….
Mar 2020
Notes
Demanding Trust in the Private Genetic Data Market
Benjamin T. Van Meter
This Note argues that to prevent the most damaging consequences of the trade in genetic data, U.S. law should impose tailored fiduciary duties on private genetic testing companies to ensure that their business practices do not harm their own customers. These testing companies rely on their customers’ genetic information to turn a profit, while all of the risk of this information’s exposure or misuse falls on customers.
Jul 2020
International Cultural Heritage Law: The Link Between Cultural Nationalism, Internationalism, and the Concept of Cultural Genocide
Ashley Mullen
Part I of this Note will explain the theoretical underpinnings of what constitutes “cultural heritage,” why it deserves protection, and what obstacles stand in the way of protection. Part II will discuss the existing international legal framework aimed at protecting cultural heritage, as well as the flaws within that framework. Part III will analyze the…
Jul 2020
Closing the Racial Gap in Financial Services: Balancing Algorithmic Opportunity with Legal Limitations
Julia F. Hollreiser
This Note will explore the potential for financial institutions to use fintech to address race-based financial inequality while also being attentive to the possibility that seemingly innocuous technologies can generate biased banking practices against minority communities. Part I of this Note will discuss the history of the inequitable distribution of wealth in the United States and race-based gaps in access to financial services and products. Part II will then identify various techniques that financial institutions have used to target minority consumers. It will discuss the legality of those techniques under existing regulations, statutes, and case law. Part III of this Note will describe the role that algorithms, big data, and artificial intelligence have come to play in credit assessment and lending decisions, focusing on the risks inherent in algorithmic decision-making and the potential for these decisions to generate racially discriminate results. Part IV will then explore the opportunity for algorithmic lending in fintech to close the racial gap in financial services while still operating within the broader legal landscape.
May 2020
Executive Privilege—With A Catch: How a Crime-Fraud Exception to Executive Privilege Would Facilitate Congressional Oversight of Executive Branch Malfeasance in Accordance with the Constitution’s Separation of Powers
Anthony W. Wassef
Part I of this Note will provide a brief history of executive privilege via an analysis of the key case law underlying the doctrine and discuss the core tenets of the privilege that dictate its use. Part II will describe the origins of Congress’s power to investigate and the current rules for overcoming executive privilege in that context. Part III will discuss how, in playing the three critical functions mentioned above, a crime-fraud exception would balance Congress’s interest in performing its oversight duties with the executive branch’s interest in confidentiality while simultaneously reducing instances of criminal or fraudulent conduct by the executive branch.
May 2020
Cornell Law Review, Issue 5
Cornell Law Review is proud to announce Vol. 105, Issue 5, with Articles, Essays, and Notes exploring Multidistrict Litigation as a Category; Why Has Antitrust Law Failed Workers?; Legitimate Interpretation—Or Legitimate Adjudication?; Chevron as Construction; International Cultural Heritage Law; and Demanding Trust in the Private Genetic Data Market. Thank you to our amazing authors for…
Sep 2020
Cornell Law Review, Issue 3
We are honored to announce Cornell Law Review’s Vol. 105, Issue 3, a symposium issue created after the Lynn Stout Memorial Conference, held in memory of Professor Lynn Stout. Professor Stout was a well-respected colleague and dear friend of the Cornell Law community, and the Cornell Law Review is proud to be a part of this memorial issue.
Aug 2020
Cornell Law Review, Issue 4
Cornell Law Review is proud to announce Vol. 105, Issue 4, with Articles and Essays exploring Tort as Private Administration; Justice Scalia’s Campaign Against Legislative History; Corporate Privacy; Product Liability Law; and Student Notes that explore the Racial Gap in Financial Services and a Crime-Fraud Exception to Executive Privilege. Thank you to our amazing authors for their outstanding collaboration and patience with us during the COVID-19 pandemic.
Aug 2020
Professor Katyal’s Cornell Article is judged as best 2019 intellectual property law review article
Professor Sonia Katyal’s Article The Paradox of Source Code Secrecy was selected for inclusion in the 2020 edition of the Intellectual Property Law Review, an anthology published annually by Thomson Reuters (West). This article was originally published in 104 Cornell L. Rev. 1183 (2019). Abstract In Lear v. Adkins, the Supreme Court precipitously wrote, “federal…
Jul 2020
Two Cornell articles are selected as among the best 2019 corporate and securities articles in legal journals
Scholars in corporate and securities law were asked to select the best corporate and securities articles from a list of articles published in legal journals during 2019. The following Cornell Law Review articles will be included in the Corporate Practice Comment: Professors Asaf Eckstein and Gideon Parchomovsk’s Article Toward a Horizontal Fiduciary Duty in Corporate…
Jul 2020
Professor Michele Goodwin receives the John Hope Franklin Prize, Honorable Mention
Professor Michele Goodwin is honored to receive the John Hope Franklin Prize, Honorable Mention for her Article The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, which was published in Cornell Law Review‘s Volume 104. This Article exposes how the institution of slavery persists in the American penal system. The article provides a robust historical…
Jul 2020
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