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Category: Current CLR Print Vol.

Note

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

Note

“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

Article

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

Article

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

Article

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

Note

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

Note

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

Article

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

Article

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

Note

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

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