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Cornell Law Review, Volume 106, Issue 7

8 Feb 2022

Please see below for a complete list of Vol. 106, Issue 7 authors and their scholarship. Thank you to our amazing authors and editors!

Articles

Renaming Deadly Force

Scott A. Harman-Heath, J.D. University of Virginia, B.A. McGill University

Three times a day in the United States, a police officer kills someone. On any given day, this person might be an active shooter, a hostage-taker, or a bomber. But on that same day police might also kill a motorist reaching for his license (Philando Castile), someone selling loose cigarettes (Eric Garner), someone who used a counterfeit bill at a grocery store (George Floyd), or someone fleeing a traffic ticket for a malfunctioning brake light (Walter Scott). Intuitively, these scenarios present radically different uses of deadly force, but the nomenclature we use for deadly force does not account for this—all police killings are simply “deadly force.” This Article suggests that this is a mistake that stunts both scholarship and discourse.

Distributed Federalism: The Transformation of Younger

Anne Rachel Traum, Professor of Law, University of Nevada, Las Vegas

This Article argues that courts are rejecting Younger abstention and instead distributing federalism concerns throughout the litigation. This “distributed federalism” approach was modeled decades ago in Gerstein v. Pugh, which powerfully showed that by rejecting Younger abstention, federal courts do not reject federalism. Today federalism is baked into the civil procedure infrastructure and courts’ reluctance—institutional, doctrinal, and federalism-based––to order injunctive relief against state courts. As litigants get past Younger abstention, the new battleground will be the degree to which federalism shapes the scope of constitutional rights and injunctive and declaratory relief. In this new terrain, Younger’s noninterference principle will transform from an abstention doctrine to a remedial tool that helps courts justify the manner and degree of relief that will protect individual rights in state criminal proceedings.

Essays

The Inevitability and Desirability of the Corporate Discretion to Advance Stakeholder Interests

Einer Elhauge, Petrie Professor of Law, Harvard Law School

In The Illusory Promise of Stakeholder Governance, Lucian Bebchuk and Roberto Tallarita offer a vigorous defense of the view that corporate leaders should have a legal duty to maximize only shareholder value. Although they sometimes call their position “shareholder primacy”, that term is a misnomer because they favor more than a legal duty to primarily advance shareholder interests. They favor what I will call “shareholder exclusivity”, a legal duty to exclusively maximize shareholder interests that forbids corporate leaders from putting any independent weight whatsoever on the interests of non-shareholders.

Shareholderism Versus Stakeholderism-A Misconceived Contradiction

Colin Mayer, Peter Moores Professor of Management Studies, Saïd Business School, University of Oxford

This Essay critiques an assessment by Lucian Bebchuk and Roberto Tallarita of the relative merits of shareholder and stakeholder governance. It argues that “The Illusory Promise of Stakeholder Governance” fails to provide a benchmark against which it is possible to evaluate either the comparative merits of shareholder and stakeholder systems, or alternative proposals for reform.

On the Promise of Stakeholder Governance: A Response to Bebchuk and Tallarita

William Savitt, Partner, Wachtell, Lipton, Rosen & Katz

Aneil Kovvali, Harry A. Bigelow Teaching Fellow & Lecturer in Law, University of Chicago Law School

Professor Bebchuk and his coauthor Roberto Tallarita have launched a broadside against recent efforts of business leaders, scholars, and lawyers to promote a corporate governance model that permits directors to take into account interests other than stockholders—a governance regime that authorizes directors to manage their corporations having in mind the interests not of stockholders alone, but also of employees and customers and society at large. We suggest that Professors Bebchuk and Tallarita should reconsider their all-chips-in approach to the share price maximization model.

Notes

The Missing Civility in Civil Damages: A Proposed Guidelines Structure for Calculating Punitive Damages

Ashley Stamegna, J.D. Candidate, Cornell Law School, 2022

This Note posits that the same effects of numerical anchoring may be leveraged and enjoyed by the civil system through the adoption of an advisory punitive damages schedule. By evaluating Supreme Court jurisprudence, existing data on punitive damages awards, and prior solutions proposed by tort scholars, this Note takes the first step in the long process of uncovering relevant factors necessary to creating an effective punitive damages schedule.

Cookies and Wires: Can Facebook Lure Users Into Divulging Information Under the Wiretap Act’s Party Exception?

Richard T. Wang, J.D. Candidate, Cornell Law School, 2022

The advent of the Internet brought immeasurable benefits to society in various ways—providing convenient access to information, facilitating the purchase and sale of goods (from Amazon to Fintech), and offering an invaluable method of social and political communication. This Note analyzes the circuit split regarding the Wiretap Act’s party exception and cookies, and recommends a framework to aid in the application of the Wiretap Act to Internet communications. 

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