Articles
Against Prosecutors
Each year our jails cycle through approximately ten million people, the vast majority charged with nonviolent crimes. We are at a point where one in every three adults in America has a criminal record, and where for every fifteen persons born in 2001, one will likely spend time in jail or prison. Compared to other countries, the crime rate in the United States is not exceptional, and yet we have by far the highest incarceration rate in the world. None of this can be solved by simply tinkering with the machinery of prosecution. It is time to rethink why and how we prosecute in the first place. What would it mean to turn away from public prosecutors and not rely on the criminal justice system as the first responder to address social ills, such as mental illness and poverty (two of the main drivers of our prison industrial complex)? More radically, what would it mean to turn away from state controlled prosecution as the primary way to address crime? What would it mean to replace a system where prosecutors hold a monopoly in deciding which cases are worthy of pursuit with a system in which “we the people,” including those of us who have traditionally had little power, would be empowered to seek and achieve justice ourselves? This Article attempts to answer these questions.
Sep 2020
FRAND and Antitrust
This Article addresses one question: when is a Standard Setting Organization (SSO) participant’s violation of a FRAND commitment an antitrust violation, and if it is, of what kind and what are the implications for remedies? It warns against two extremes. One is thinking that any violation of a FRAND commitment is an antitrust violation as well. In the first instance FRAND obligations are contractual, and most breaches of contract do not violate any antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation. The question of an antitrust violation does not depend on whether the conduct breached a particular agreement but rather on whether it caused competitive harm. This can happen because the conduct restrained trade under section 1 of the Sherman Act, was unreasonably exclusionary under section 2 of the Sherman Act, or amounted to an anticompetitive condition or understanding as defined by section 3 of the Clayton Act. The end goal is to identify practices that harm competition, thereby injuring consumers.
Sep 2020
Equity, Punishment, and the Company You Keep: Discerning A Disgorgement Remedy Under the Federal Securities Laws
This Article first provides background on the judicial development of the SEC disgorgement remedy, up to and through Kokesh. It then examines parallel legislative developments, touching on the fraught subject of legislative history. After describing this necessary context, the Article relies on it to illuminate a problem endemic to litigation about federal remedies. This has to do with the promiscuous use of the word “equitable,” which appears to have greatly complicated any attempt to make sense of disgorgement. The confusion resulting from a sea of unexamined assumptions about “equity” that floats throughout the relevant cases and commentary has obscured a central issue. This is the difference between whether a remedy exists—the primary subject of this Article—and whether, if it does, there are constitutional consequences. In the process of shedding light on this subject, this Article answers three specific questions. The first is whether a right to seek disgorgement could be said to exist as a function of the Commission’s express authority to seek equitable remedies. The second is whether the SEC’s right to seek disgorgement could be said to exist at law. The third, which assumes an affirmative answer to both of the first two, is which of the two characterizations is more appropriate.
Sep 2020
Notes
Disciplinary Sodomy: Prison Rape, Police Brutality, and the Gendered Politics of Societal Control in the American Carceral System
David Eichert, PhD Candidate, London School of Economics; Cornell Law School 2020.
This Note engages with critical legal scholarship about gender and race to reframe discussions about sodomy in American law. Instead of concentrating on the history and constitutionality of sodomy bans, I instead demonstrate how disciplinary sodomy remains an intrinsic part of the American carceral system. I detail several scenarios in which anal rape and the threat of anal rape have been used by prison staff and law enforcement agents to control male bodies in the American carceral system. I then identify the “audiences” of this violence, demonstrating how ideas of sexuality, gender, and race are weaponized against marginalized populations to reinforce power hierarchies in American society.
Sep 2020
Developing a Digital Property Law Regime
Kevin Dong, University of Illinois Urbana-Champaign, B.A., Philosophy & Political Science, 2014; Cornell Law School, J.D., 2020.
In this Note, I will argue that the nature of digital property requires us to radically rethink what types of property rights we have, and that ultimately a new class of specific “virtual property” or “digital property” rights is necessary. In Part I, I give a brief history of the scholarship and debate around virtual property and argue why the virtual property debate is still important today. In Part II, I consider ways in which digital property and physical property may differ, and ultimately argue that Palka’s1Przemyslaw Palka, Virtual Property: Towards a General Theory (Dec. 20, 2017) (unpublished Ph.D. thesis, European University Institute) (on file with Cadmus). work on virtual property takes the necessary steps toward a coherent and sensible digital property regime. In Part III, I attempt to create the basis of what a digital property rights regime may look like and suggest future developments to my theory on digital property.
Sep 2020
Online Symposium on Friday, 10/30—Women on the Front Lines: COVID & Beyond
On Friday, October 30, 2020, 11:00 AM EST to 1:00 PM EST, Cornell Law Review Online will host, Women on the Frontlines: COVID and Beyond, an online symposium that examines the political, economic, social, and legal status of women in light of the COVID-19 pandemic, political turmoil, and racial unrest. To attend the event, register here: https://bit.ly/375nJce….
Oct 2020
Forthcoming in Cornell Law Review Online: Ford’s Hidden Fairness Defect
A consumer saves up to buy a used car. Unbeknownst to him, the vehicle has a design defect—and in a crash, the airbag fails to deploy, leaving his passenger severely injured. Under state law, the injured party has a right to sue the vehicle manufacturer: but where? The obvious forum is the plaintiff’s home forum—it’s…
Sep 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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