Cornell Law Review

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

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

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

Note

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

Note

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

Note

Too Much “Acting,” Not Enough Confirming: The Constitutional Imbalance Between the President and Senate Under the Federal Vacancies Reform Act

Christopher D. Johnson, B.S., Northwestern University, 2014; Cornell Law School, J.D. Candidate, 2021.

“While the recent uproar over acting service largely stems from perceived abuses of the Federal Vacancies Reform Act during Trump’s presidency, it is properly understood as a foreseeable consequence of the structure of the legislative lever that the President—any president, not just President Trump—can pull to temporarily fill key positions in the Executive Branch absent Senate consent. This Note charts a path toward fixing that structure. . . .

This Note proceeds as follows. Part I describes the Federal Vacancies Reform Act’s basic mechanics, highlights aspects of the statute this Note’s proposed changes seek to address, and details Trump Administration controversies illustrating how, with regard to the process of filling the upper ranks of executive agencies, the FVRA amplifies presidential authority to the detriment of the Senate’s authority. Part II analyzes the FVRA’s constitutional foundation, delineates the key tension in the statute flowing from the nexus between the President’s take care obligation and the Senate’s advice and consent function, argues that the FVRA aids the former at the expense of the latter, and contextualizes this argument by describing the increasing Senate resistance the President must overcome in today’s appointments process. Part III sets forth changes to the FVRA in view of its constitutional imbalance between the Take Care Clause and Senate advice and consent.”

Nov 2020

Note

The Death of Retaliatory Arrest Claims: The Supreme Courts Attempt to Kill Retaliatory Arrest Claims in Nieves v. Bartlett

Michael G. Mills, B.A., Siena College, 2018; Cornell Law School, J.D. Candidate, 2021.

“The Supreme Court’s recent decision in Nieves v. Bartlett threatens to render retaliatory arrest lawsuits superfluous and allows officers to flagrantly chill speech without repercussion. An officer violates the First Amendment when she arrests an individual because of his protected speech. Prior to the Supreme Court’s decision in Nieves, the individual could bring a lawsuit against the officer under 42 U.S.C. § 1983 for depriving the individual of his First Amendment rights. Nieves, however, required the individual to show that the officer lacked probable cause for the arrest. This requirement nearly eliminates retaliatory arrest claims since it is incredibly easy for an officer to show probable cause. Even if the individual could show the officer lacked probable cause, the individual could have already sued the officer for a false arrest. Thus, retaliatory arrest claims are now superfluous and no longer serve any purpose in discouraging officers from chilling free speech. The decision’s negative effects will be compounded with the increasing number of retaliatory arrests during protests of recent police killings of Black individuals, including George Floyd and Breonna Taylor.

The Court did create an exception in Nieves for when an officer had probable cause but normally would not exercise her discretion to arrest. For example, when an officer arrests an anti-police protester for jaywalking. Nonetheless, the Court suggested such a high standard to govern this exception that very few retaliatory arrest claims will succeed. Instead, lower courts should adopt a less stringent standard. This Note advocates that lower courts adopt a burden-shifting test used in employment discrimination cases. This standard is more realistic for plaintiffs to satisfy, and thus, will allow the Nieves exception to deter officers from chilling speech.”

Nov 2020

Note

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