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Current Print Issue

Volume 107

Articles

Cop Tracing

Jonathan Abel, Associate Professor, University of California, Hastings College of the Law

What happens to an officer’s old cases when that officer is exposed as corrupt? Often, the answer is nothing. This Article calls for “cop tracing”: an effort to identify and investigate the past cases handled by dishonest cops. The Article first describes the existing action and inaction with respect to such tracing. Next, it examines…

Aug 2022

Voter Data, Democratic Inequality, and the Risk of Political Violence

Bertrall L. Ross II, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia & Douglas M. Spencer, Associate Professor of Law, University of Colorado, Boulder

Campaigns’ increasing reliance on data-driven canvassing has coincided with a disquieting trend in American politics: a stark gap in voter turnout between the rich and poor. Turnout among the poor has remained low in modern elections despite legal changes that have dramatically decreased the cost of voting. In this Article, we present evidence that the…

Aug 2022

Free Exercise Partisanship

Zalman Rothschild, Nonresident fellow at the Stanford Constitutional Law Center; Nonresident fellow at the University of Lucerne; Adjunct Professor of Law at New York University School of Law. J.D., magna cum laude, Harvard Law School; Ph.D., New York University; M.A., Yeshiva University.

This Article presents new data demonstrating that, in contrast to earlier periods, recent judicial decision-making in free exercise cases tracks political affiliation to a significant degree. The trend toward increased free exercise partisanship is starkly manifested by free exercise cases borne out of the COVID-19 pandemic: a survey of federal court decisions pertaining to free…

Aug 2022

Amazon as a Seller of Marketplace Goods Under Article 2

Tanya J. Monestier, Professor of Law, University at Buffalo School of Law

You have probably purchased goods on Amazon. Did you know that if the goods you purchased on Amazon turn out to be defective and cause serious personal injury, Amazon is probably not liable for them? Did you know that even though you placed an order on Amazon, gave payment to Amazon, and received the goods…

Jun 2022

Medication Abortion Exceptionalism

Greer Donley, Assistant Professor at the University of Pittsburgh Law School

Though state laws dominate the abortion debate, there is a federal abortion policy that significantly curtails access to early abortion in all fifty states. The policy, known as a Risk Evaluation and Mitigation Strategy (REMS), limits the distribution of mifepristone, the only drug approved to terminate a pregnancy so long as it is within the…

Jun 2022

Unequal Investment: A Regulatory Case Study

Emily Winston, Assistant Professor, University of South Carolina School of Law

Growing economic inequality in the United States has reduced social mobility, placing financial security farther out of reach for a growing number of Americans. During the COVID19 pandemic, U.S. stock prices have grown simultaneously with unemployment and food insecurity, highlighting the fact that prosperity is unequally distributed in the U.S. economy. Many Americans do not…

Jun 2022

Jurisdictional Elements and the Jury

G. Alexander Nunn, Assistant Professor of Law, University of Arkansas School of Law

Do jurisdictional elements in criminal statutes actually matter? Of course, formally, the answer is obvious; jurisdictional elements are of paramount importance. In fact, they often serve as the entire justifying basis for a federal (rather than state) criminal prosecution. But beyond mere technicalities, do jurisdictional elements actually make a difference in a jury deliberation room?…

Apr 2022

Systematically Important Platforms

Caleb N. Griffin, Assistant Professor, University of Arkansas School of Law

Regulating Big Tech is now a matter of intense public debate. We ask how well Big Tech companies fulfill their role as gatekeepers of the public square. We ponder whether their dominant market positions merit an antitrust response. We assess their culpability and complicity in spreading online misinformation and hate. However, in the many normative…

Apr 2022

Is Unpublished Unequal? An Empirical Examination of the 87% Nonpublication Rate in Federal Appeals

Rachel Brown, Jade Ford, Sahrula Kubie, Katrin Marquez, Bennett Ostdiek & Abbe R. Gluck, Yale Law School Class of 2020

Federal judges resolved more than eighty-seven percent of appeals through unpublished opinions over the past five years. These dispositions are non-precedential and typically contain abbreviated reasoning. Such high rates of nonpublication may be difficult to reconcile with the core values of the federal judiciary—values grounded in precedent, reason-giving, and equal treatment. After intense attention to…

Apr 2022

When Patients Are Their Own Doctors: Roe v. Wade in an Era of Self-Managed Care

Yvonne Lindgren, Associate Professor of Law, University of Missouri-Kansas City. J.S.D, LL.M., U.C. Berkeley School of Law; J.D., Hastings College of Law; B.A., U.C.L.A.

It is a critical time to re-examine the gatekeeper framing of the abortion right considering the dramatic conservative shift in the Supreme Court that threatens Roe, and in the midst of a pandemic, which—in a complete reversal of the Roe period—renders in-person care by a provider potentially dangerous. In January, the Supreme Court’s first abortion…

Apr 2022

Notes

Eating High on the Humanely Raised Hog: State Bans on Selling Food Produced Using Cruel Animal Farming Methods Do Not Violate The Dormant Commerce Clause

Emma Horne, Cornell Law School, J.D. 2021.

Most states’ laws minimally protect farmed animal welfare. However, a growing minority of states have enacted food-related sales bans that are designed to improve the lives of farmed animals nationwide. These sales bans are passed by states as a means to eliminate inhumane confinement of farmed animals. For example, California has enacted Proposition 12, which…

Aug 2022

Insanity Step Zero: A Modern Application of M’Naghten’s Question Four Test

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

Defendants suffering from delusion currently are subject to inequitable treatment in our criminal justice system. They can genuinely believe, due to a delusion, that a person right in front of them has a gun and is about to kill them. Acting in what they believe is self-defense, they can draw a gun and kill their…

Aug 2022

The Death of Presumptive Unconditional Release: Evaluating the Developing Standards for Early Release in the International Residual Mechanism for Criminal Tribunals

Gabriela Markolovic

Since the birth of international criminal courts and tribunals, persons convicted of international crimes have long enjoyed a presumption of early release after serving two-thirds of their sentence. This presumption, however, is dying: concerns for post-conflict regional stability and evolving notions of rehabilitation in the international context have refashioned the law of early release, resulting…

Jun 2022

Challenging Guilt by Association: Rethinking Youths’ First Amendment Right to Associate and Their Protection from Gang Databases

Victor M. Flores

The purpose of this Note is to help rethink how to better protect minors and emerging adults from the long-standing threat of gang policing and databases. This Note applies the First Amendment right to associate to challenge gang policing in New York as an example of potential challenges to gang policing in other jurisdictions. However,…

Jun 2022

Independence in the Interregnum: Delayed Presidential Transitions and the GSA Administrator’s Ascertainment Under the Presidential Transition Act of 1963

Christopher D. Johnson, Cornell Law Class of 2021; Articles Editor, Cornell Law Review, Volume 106

If presidential transitions are so important, should a political appointee whose performance is subject to the control and direction of the outgoing President have virtually unfettered discretion to determine whether they have the resources they need to succeed? This Note answers that question in thenegative. It argues that the ascertainment the PTA assigns to the…

Apr 2022

Stealing From the Poor: Regulating Robinhood’s Exchange-Traded Options for Retails Investors

Chris Mao, J.D. Candidate, Cornell Law School Class of 2022

During the height of the COVID-19 pandemic, Robinhood, a brokerage-free stock trading app, saw a meteoric rise in account holders, with Americans seeking new income streams during times of economic hardship, unemployment, and, at times, sheer boredom. The ensuing trading activity significantly impacted the country’s stock market—a result of not only Robinhood’s three million new…

Apr 2022

The Missing Civility in Civil Damages: A Proposed Guidelines Structure for Calculating Punitive Damages

Ashley Stamegna, J.D. Candidate, Cornell Law School, 2022; B.S., University of Connecticut, Health Care Management, 2019

“[P]unitive damages are out of control”11. W. Kip Viscusi, The Social Costs of Punitive Damages Against Corporations in Environmental and Safety Torts, 87 GEO. L.J. 285, 333 (1998).—or so tort reformers say. The past two decades have witnessed heated debates over a range of tort reform proposals, from punitive damages caps to complete punitive damages…

Feb 2022

Cookies and Wires: Can Facebook Lure Users Into Divulging Information Under the Wiretap Act’s Party Exception?

Richard T. Wang, B.A., Washington University in St. Louis, 2017; J.D. Candidate, Cornell Law School, 2022

The advent of the Internet brought immeasurable benefits11. See Lisa Eadicicco, Obama Wants to Reclassify the Internet by Turning It Into a Utility, BUSINESS INSIDER (Nov. 10, 2014, 9:36 AM), https:// www.businessinsider.com/president-obama-thinks-the-internet-should-be-autility-2014-11 [https://perma.cc/FZD2-C9TS] (noting that former-President Barack Obama argued that the FCC should recognize the Internet as a vital service); Internet Access Is ‘a Fundamental…

Feb 2022

“Are We There Yet?” No.: The Numbers That Support Adopting Automatic Appeals in Juvenile Delinquency Proceedings

Thomas G. Shannan, Cornell Law School’s Frank H.T. Rhodes 2021–2023 Public Interest Fellow, Citizens Concerned for Children, Inc.; J.D., Cornell Law School, 2021; B.S., Vanderbilt University, 2017.

The United States juvenile justice system is grossly inadequate on a national level. For over a century, juvenile courts in various forms have been heralded as benign mechanisms that offer an alternative for “troubled youth” who commit acts that would constitute crimes if committed by adults.11. See, e.g., Youth in the Justice System: An Overview,…

Nov 2021

Bostock v. Clayton County: The Implications of a Binary Bias

A. Russell, J.D. Candidate 2022, Cornell Law School; B.A. in Theater, Film & Media Studies, and Gender & Sexuality Studies, Haverford College, 2014.

This Note focuses specifically on the implications of Bostock v. Clayton County for nonbinary people. Although part of the broader transgender community, nonbinary people do not directly enter into the Court’s analysis.11. Vin Gurrieri, Questions About ‘Nonbinary’ Bias Linger After LGBT Ruling, LAW 360 (June 19, 2020), https://www.law360.com/articles/1284955/questions-about-nonbinary-bias-linger-after-lgbt-ruling [https://perma.cc/CML7V9WD]. Indeed, the only mention of gender…

Nov 2021

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