Cornell Law Review

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

Note

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’s((Przemyslaw 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

Note

The Partiality Norm: Systematic Deference in the Office of Legal Counsel

Adoree Kim

 

The Office of Legal Counsel within the Department of Justice counsels the president on the legality and constitutionality of proposed executive action. In the early 2000s, the OLC authorized the Bush administration’s torture of foreign combatants. Scholars have deemed this an act of excessive deference and an aberration, attesting that the OLC has since reformed….

Jul 2020

Note

Using Daubert to Evaluate Evidence-Based Sentencing

Charlotte Hopkinson

Jack and Jill went up the hill,to steal a pail of water,Both were caught and sentenced to jail,But Jack came out two years later. Why? Assume that both Jack and Jill’s cases are identical in facts, procedure, jury composition, and verdict. The only relevant difference is that Jack is a man and Jill is a…

Jul 2020

Note

“Making America Safe Again”: The Proper Interpretation § 1101(A)(43)(S) of the Immigration and Nationality Act From both Immigration and Nationality Act From both a Chevron and a Public Policy Perspective

Jon Derenne

A recent Ninth Circuit decision, Valenzuela Gallardo v. Lynch, has created a three-pronged circuit split over the proper interpretation of statutory language in the Immigration and Nationality Act (INA). In Gallardo, the government initiated a deportation action against a Mexican alien residing in the U.S. due to his conviction as an accessory after the fact…

Jul 2020

Note

Benefit Corporations: A Proposal for Assessing Liability in Benefit Enforcement Proceedings

Jaime Lee

There has been a growing trend of more socially conscious consumption as a new generation of consumers and business leaders rises to the forefront. This trend has elicited a response from existing corporations and entrepreneurs starting new businesses such that socially-minded goals are taken into account in addition to profit-maximizing goals. Because the traditional corporation…

Jul 2020

Note

Stricken: The Need For Positive Statutory Law To Prevent Discriminatory Peremptory Strikes Of Disabled Jurors

Jordan Benson

This Note will explore the Supreme Court’s decision in Batson v. Kentucky and the gradual expansion of its protections to other categories such as gender, ethnicity, and (at the circuit level) sexual orientation. I will show that, despite recent expansions of the Batson challenge to sexual orientation in the SmithKline v. Abbott Laboratories decision, achieving…

Jul 2020

Note

A First Amendment Right to Corrupt your Politician

Eugene Temchenko

Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is well-established that the Constitution protects the right of political association, which includes contributions to candidates in return for ingratiation and access. Nonetheless,…

Jul 2020