Cornell Law School Logo - white on transparent background

Current Print Issue

Volume 107

Articles

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Is Unpublished Unequal?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Federal judges resolved more than eighty-seven percent of appeals through unpublished opinions over the past five years. These dispositions are non-precedential and typically contain abbreviated reasoning.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

Protecting Dissent: The Freedom of Peaceful Assembly, Civil Disobedience, and Partial First Amendment Protection

Nick Robinson & Elly Page, Senior Legal Advisors at the International Center for Not-for-Profit Law

Protesters in the United States frequently engage in peaceful unlawful conduct, or civil disobedience, such as blocking traffic or trespass. Often citing to the First Amendment, authorities will routinely decline to arrest or prosecute this nonviolent conduct or do so for lesser offenses than they could. This treatment, though, can vary considerably by location, issue,…

Apr 2022

Distributed Federalism: The Transformation of Younger

Anne Rachel Traum, Professor of Law, University of Nevada, Las Vegas

For decades federal courts have remained mostly off limits to civil rights cases challenging the constitutionality of state criminal proceedings. Younger abstention, which requires federal courts to abstain from suits challenging the constitutionality of pending state prosecutions, has blocked plaintiffs from bringing meritorious civil rights cases and insulated local officials and federal courts from having…

Feb 2022

Renaming Deadly Force

Scott A. Harman-Heath, J.D. University of Virginia, B.A. McGill University

Three times a day in the United States, a police officer kills someone. On any given day, this person might be an active shooter, a hostage-taker, or a bomber. But on that same day police might also kill a motorist reaching for his license (Philando Castile), someone selling loose cigarettes (Eric Garner), someone who used…

Feb 2022

The State Courts Don’t Have Time for Your Crackpot Antiquarianism: A Decade of Domestic Homicides Since Giles V. California

Caren Myers Morrison, Associate Professor of Law, Georgia State University College of Law

How Giles v. California would affect domestic violence cases was hotly debated within the case itself and in the literature that followed. This article presents the first comprehensive review of the 114 domestic homicide cases since Giles in which there was an intimate relationship between the victim and the accused,11. The vast majority of the…

Nov 2021

Elder Financial Abuse: Capacity Law and Economics

Ben Chen, Lecturer in Law (Assistant Professor equivalent), The University of Sydney

Elder financial abuse is an alarming problem in this era of aging population. Baby boomers are entering retirement with a higher life expectancy and more wealth than any generation before them. The combination of mental decline and substantial wealth renders many seniors vulnerable to overreach. In private suits alleging elder financial abuse, courts often apply…

Nov 2021

Legal Corpus Linguistics and the Half-Empirical Attitude

Anya Bernstein, Professor of Law, SUNY Buffalo Law School

Legal writers have recently turned to corpus linguistics to interpret legal texts. Corpus linguistics, a social-science methodology, provides a sophisticated way to analyze large data sets of language use. Legal proponents have touted it as giving empirical grounding to claims about ordinary language, which pervade legal interpretation. But legal corpus linguistics cannot deliver on that…

Nov 2021

Notes

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

Trending Towards Leniency: What Millenium Laboratories & In re Plavix Marketing Teach About the Future of the False Claims Act’s First-to-File Rule

Zachary Sizemore, Cornell Law School, J.D. 2021.

Part I of this Note will discuss the history and development of the FCA, including its original purpose and modern use, why Congress added the first-to-file rule, and how the provision traditionally operated to bar later-filed claims. Part II will discuss the First and Third Circuits’ case law and overall jurisprudence regarding the first-to-file rule. It will also illustrate the First and Third Circuits’ FCA jurisprudence as a whole by looking to how the First and Third Circuits decided certain other issues arising under or related to the FCA. Part III will then discuss the factors that led to the circuits’ decisions in Millenium Labs and In re Plavix Marketing. This includes a mix of both external factors—like the rulings of other circuits—and internal factors, like the First and Third Circuits’ jurisprudence: their continued leniency in cases involving the FCA and their case law signaling the eventual recharacterization of the rule as nonjurisdictional. Part IV will briefly extract some lessons that these decisions can teach about what to look for in determining how a circuit might interpret the rule going forward, and based on these, predict that the Ninth Circuit will soon join these circuits in holding that the rule is nonjurisdictional. The Note will ultimately conclude that the decisions were simply a product of the First and Third Circuits’ FCA case law and the fact that federal courts should be more lenient on plaintiffs bringing claims under the FCA.

Sep 2021

Finding Benevolent Neutrality in Land Use: RLUIPA’s Equal Terms Provision and the Human Flourishing Theory of Property

Hun Lee, B.A., Catholic University of Korea, 2016; J.D., Cornell Law School, 2021.

This Note will examine the circuit courts’ different approaches to interpreting the Equal Terms provision and suggest that the provision should be interpreted from the perspective of property law rather than the current judicial framework, which is inapt to resolve the inherent tension underlying RLUIPA and First Amendment jurisprudence. The Note will first identify this tension in Part I by surveying the history of RLUIPA in relation to the evolution of First Amendment jurisprudence. Part II will analyze the different approaches that circuit courts have taken to interpret RLUIPA’s Equal Terms provision, concluding that existing judicial approaches and the commentaries thereof call for an alternative approach informed by principles of property law. Part III will introduce a property theory based on the concept of human flourishing, arguing that the theory can provide an effective interpretive framework that may resolve issues regarding religious land use such as the interpretation of RLUIPA’s Equal Terms provision.

Sep 2021

Second-Class Citizens Under the Second Amendment: The Case for Applying Strict Scrutiny to Lifetime Firearm Bans for Individuals Previously Committed to Mental Institutions

Lauren Devendorf, B.A., Duke University, 2015; J.D., Cornell Law School, 2020; Publishing Editor, Cornell Law Review, Vol. 105.

This Note seeks to critique the conflicting approaches that the Third, Sixth, and Ninth Circuits have taken when analyzing what Second Amendment rights, if any, individuals are entitled to after a mental institution involuntarily commits them. Additionally, this Note offers a novel solution. To do so, it explores “not the what, where, when, or why of the Second Amendment’s limitations—but the who.” Tyler v. Hillsdale Cty. Sheriff’s Dep’t (Tyler I), 775 F.3d 308, 322 (6th Cir. 2014), vacated, 837 F.3d 678 (2016).

Jan 2021

Compelling Code: A First Amendment Argument Against Requiring Political Neutrality in Online Content Moderation

Lily A. Coad, B.A., Duke University, 2018; J.D., Cornell Law School, 2021; Publishing Editor, Cornell Law Review, Vol. 106.

In 2019, Senator Josh Hawley (R-Mo.) introduced a bill that exemplifies conservatives’ criticisms of big tech and Section 230. The Ending Support for Internet Censorship Act seeks to eradicate the alleged “anti‑conservative bias” on social media platforms by requiring large tech companies to maintain politically neutral content moderation algorithms and practices. This Note argues that requiring tech companies to maintain politically neutral content moderation algorithms is a form of compelled speech and is therefore presumptively unconstitutional under the First Amendment. Further, it argues that Senator Hawley’s bill cannot survive the applicable standard of strict scrutiny because eliminating alleged political bias by social media companies is not a compelling government interest, and, even if it were, the bill is not narrowly tailored to serving that interest.

Jan 2021

Volume 106, Issue 2

Articles

The Evidence Rules That Convict the Innocent - Jan 2021

Inescapable Surveillance - Jan 2021

Population-Based Sentencing - Jan 2021

Notes

Second-Class Citizens Under the Second Amendment: The Case for Applying Strict Scrutiny to Lifetime Firearm Bans for Individuals Previously Committed to Mental Institutions - Jan 2021

Compelling Code: A First Amendment Argument Against Requiring Political Neutrality in Online Content Moderation - Jan 2021

––––––––––––––––––––––––––––––––––––––––––––––––––