Cornell Law Review

Article

Arousal by Algorithm

Amy Adler

Emily Kempin Professor of Law, NYU School of Law. 

The problem of Big Tech has consumed recent legal scholarship and popular discourse. We are reckoning daily with the threats that digital speech platforms like Facebook, X (formerly known as Twitter), TikTok, and YouTube pose to our personal and political lives. Yet while this conversation is raging in discussions about the impact of technology on…

Aug 2024

Article

Article II and the Federal Reserve

Aditya Bamzai & Aaron L. Nielson

Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law, Professor of Law, J. Reuben Clark Law School, Brigham Young University. 

The Supreme Court has twice held since 2020 that statutory restrictions on the President’s removal power violate Article II of the U.S. Constitution. Because such removal restrictions create a measure of policy independence from the President, these cases have prompted discussion about the future of independent agencies generally, with special attention to the Federal Reserve…

Aug 2024

Article

Antitrust for Immigrants

Gregory Day

Associate Professor, University of Georgia Terry College of Business; Courtesy Appointment University of Georgia School of Law; Affliated Fellow, Yale Law School Information Society Project. 

Immigrants and undocumented people have often encountered discrimination because they compete against “native” businesses and workers, resulting in protests, boycotts, and even violence intended to exclude immigrants from markets. Key to this story is government’s ability to discriminate as well: it is indeed common for state and federal actors to enact protectionist laws and regulations…

Aug 2024

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