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Category: Print Volume 109

Note

Eliminating the Common Law Limitations on Force Majeure Clauses

Ben Luo

J.D. Candidate, Cornell Law School 2024; B.A., University of California, Berkeley 2020. 

This Note will argue that as a matter of law, courts should not apply common law limitations when interpreting catch-all provisions in contractual force majeure clauses. Instead, to properly limit the potential all-encompassing scope of force majeure catch-alls, courts should rely on the more general principles of contract interpretation. Part I of this Note will…

Feb 2024

Article

One-Offs

William D. Araiza

Stanley A. August Professor of Law, Brooklyn Law School. 

This Article examines the phenomenon of “one-offs”: court opinions that are rarely cited by the court that issued them and do not explicitly generate further doctrinal development. At first glance, one might think that such opinions are problematic outputs from an apex court such as the U.S. Supreme Court, whose primary tasks are the exposition…

Feb 2024

Article

Penalizing Prevention: The Paradoxical Legal Treatment of Preventative Medicine

Doron Dorfman

Associate Professor of Law, Seton Hall Law School Faculty. 

Preventive medicine, which includes interventions intended to preempt illnesses before they surface, has long been a priority for furthering public health goals and improving quality of care. Yet, preventive medicine also sends strong signals about the possible risks associated with the users’ behavior and character. This signaling effect intersects with existing stigma and pervades law…

Feb 2024

Article

Rape as Indignity

Ben A. McJunkin

Associate Professor of Law, Sandra Day O’Connor College of Law at Arizona State University; Associate Deputy Director, Academy for Justice. 

Rape law has a consent problem. The topic of sexual consent predominates any discussion of rape law, both doctrinally and socially. It is now widely taken as axiomatic that nonconsensual sex is paradigmatic of rape. But consent is in fact a deeply contested concept, as recent debates over affirmative consent have demonstrated. Grounding rape law…

Feb 2024

Article

Lethal Immigration Enforcement

Abel Rodriguez

Assistant Professor of Law, St. John’s University School of Law. 

Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853…

Feb 2024

Note

Regulating Crisis Pregnancy Centers: the State Attorney General Perspective

 Yue Wu

 J.D., Cornell Law School, 2024; B.A., Carleton College, 2019. 

This Note will discuss state AGs’ role in addressing CPC regulations and in fighting questionable CPC practices. Part I introduces CPCs and their history, describes some of the earlier efforts in combating deceptive CPC practices, and summarizes the supreme Court’s NIFLA ruling that invalidated legislation designed to curb CPC harm. Part II grapples with the…

Jan 2024

Note

Port in a Storm: Colorado’s “Safe Harbor” Settlement as a Template for Online Lending Reform 

Zachary R. Hunt

J.D. Candidate, Cornell Law School, 2024. M.S. in Finance, University of South Florida, 2021. Senior Articles Editor, Cornell Law Review Vol. 109. 

Innovations in financial technology have enabled nonbank firms to market, originate, and service consumer loans entirely online via web-based lending platforms. These online lenders promote themselves as a faster, disintermediated alternative to traditional lending that leverages technology to provide borrowers with convenient and near-instantaneous access to a wider variety of credit products. Yet despite its…

Jan 2024

Article

Democracy, Civil Litigation, and the Nature of Non-Representative Institutions 

Matthew A. Shapiro

Associate Professor of Law, Rutgers Law School. 

With democratic governance under threat in the United States and abroad, legal scholars have endeavored to defend the institutions considered integral to a well-functioning democracy. According to an increasing number of civil procedure scholars, civil litigation should be included among those institutions, with many contending that litigation performs several important “democratic” functions. This Article draws…

Jan 2024

Article

Balancing is for Suckers 

Gali Racabi

Assistant Professor, School of Industrial & Labor Relations, Cornell University, Associated Faculty, Cornell Law School.

Balancing workers’ statutory rights against employers’ interests is the heart of labor law. But balancing—or employers’ interests, for that matter—is nowhere to be found in the text of our labor statutes. Yet courts and the National Labor Relations Board routinely grind down workers’ rights against this loose legal premise. Balancing is the meta-doctrine that stripped…

Jan 2024

Article

The Lost Promise of Private Ordering

 Cathy Hwang, Yaron Nili & Jeremy McClane

 Barron F. Black Research Professor of Law, University of Virginia School of Law, Professor of Law & Smith-Rowe Faculty Fellow in Business Law, the University of Wisconsin Law School & Professor of Law, University of Illinois College of Law.

The agency problem is corporate law’s most enduring challenge: when corporate managers spend investors’ money, how does the law protect investors from reckless management? Scholars of law, finance, and accounting have suggested that in one corner of corporate law—corporate debt—a powerful tool exists to mitigate the agency problem. Specifically, through loan covenants, lenders can force…

Jan 2024