Category: Uncategorized
Cornell Law Review Online
New Vision, Old Model: How the FTC Exaggerated Harms When Rejecting Business Justifications for Noncompetes
Alan J. Meese
Ball Professor of Law and Director, Center for the Study of Law & Markets, William & Mary Law School.
The Federal Trade Commission has rejected consumer welfare and the Rule of Reason—standards that drove antitrust for 50 years—in favor of a “NeoBrandeisian” vision. This approach seeks to enhance democracy by condemning abuses of corporate power that restrict the autonomy of employees and consumers, regardless of impact on prices or wages. Pursuing this agenda, the…
Jun 2024
Cornell Law Review Online
A Common Law for the Age of Amici: How the Party-Presentation Principle Can Help Identify Binding Precedent
David S. Coale
Partner, Lynn Pinker Hurst & Schwegmann, LLP, Dallas, Texas.
Two recent Supreme Court cases suggest an additional dimension for the traditional test that distinguishes dicta from holding. In the first, United States v. Sineneng-Smith, the Ninth Circuit reversed a criminal conviction based on arguments made by amici appointed by that court. The Supreme Court then reversed 9-0, holding that the Ninth Circuit’s handling of…
May 2024
Article
The Right to a Glass Box: Rethinking the Use of Artificial Intelligence in Criminal Justice
Brandon L. Garrett & Cynthia Rudin
L. Neil Williams, Jr. Distinguished Professor of Law, Duke University School of Law and Faculty Director, Wilson Center for Science and Justice, Earl D. McLean, Jr. Professor of Computer Science, Electrical and Computer Engineering, Statistical Science, Mathematics, and Biostatistics & Bioinformatics, Duke University.
Artificial intelligence (“AI”) increasingly is used to make important decisions that affect individuals and society. As governments and corporations use AI more pervasively, one of the most troubling trends is that developers so often design it to be a “black box.” Designers create AI models too complex for people to understand or they conceal how…
Apr 2024
Article
Excuse 2.0
Yehonatan Givati, Yotam Kaplan & Yair Listokin
Sylvan M. Cohen Professor at Hebrew University Law School, Professor at Hebrew University Law School, Deputy Dean and the Shibley Family Fund Professor of Law at Yale Law School.
Excuse doctrine presents one of the great enigmas of contract law. Excuse allows courts to release parties from their contractual obligations. It thus stands in sharp contrast to the basic principles of contract law and adds significant uncertainty to contract adjudication. This Article offers a crucial missing perspective on the doctrine of excuse: the view…
Apr 2024
Article
Forced Robot Arbitration
David Horton
Martin Luther King Jr. Professor of Law, University of California, Davis, School of Law.
Recently, advances in artificial intelligence (“AI”) have sparked interest in a topic that sounds like science fiction: robot judges. Researchers have harnessed AI to build programs that can predict the outcome of legal disputes. Some countries have even begun allowing AI systems to resolve small claims. These developments are fueling a fascinating debate over whether…
Apr 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
How Did A Rogue 2011 IRS Instruction Produce A Nonsensical and Punitive AMT Investment Interest Expense Deduction Computational Formula and Nobody Knows It?
Jay Katz
Associate Professor of Instruction, University of South Florida
The Essay is organized as follows: Part I reveals the lack of any explanatory guidance or commentator attention to the 2011 IRS instruction apparent radical change to the AMT Computational Formula that is hiding in plain sight. Next, Part II examines the AMT Computational Formula prior to the TAMRA Amendment. Also included is a discussion…
Dec 2023
Substance and Form in Vigilante Federalism
Zachary D. Clopton
Professor of Law, Northwestern Pritzker School of Law.
Procedure is power, to be sure, but we should not let a lawyerly interest in procedural design distract from substantive justice. Vigilante Federalism makes an invaluable contribution by showing how a particular procedural form has been used to undermine substantive justice. The authors deserve enormous credit for documenting, publicizing, and criticizing what they call “private…
Oct 2023
New York Bail Reform: A Quick Guide to Common Questions and Concerns
Emmanuel Hiram Arnaud, law clerk at the United States Court of Appeals for the First Circuit and former appellate public defender in New York City.
Beulah Sims-Agbabiaka, law clerk at the Eastern District of Pennsylvania and former appellate public defender in New York City.
In New York’s statewide court system, once someone is arrested they typically experience what can be an arduous process. For many, that process may involve time spent in jail, regardless of guilt or a conviction. At the heart of that quandary is the use of cash bail. For example, let’s say that Tina is a…
Oct 2020
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