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Volume 105


Against Prosecutors

I. Bennett Capers, Professor of Law and Director of the Center on Race, Law, and Justice, Fordham Law School. B.A. Princeton University; J.D. Columbia Law School.

Each year our jails cycle through approximately ten million people, the vast majority charged with nonviolent crimes. We are at a point where one in every three adults in America has a criminal record, and where for every fifteen persons born in 2001, one will likely spend time in jail or prison. Compared to other countries, the crime rate in the United States is not exceptional, and yet we have by far the highest incarceration rate in the world. None of this can be solved by simply tinkering with the machinery of prosecution. It is time to rethink why and how we prosecute in the first place. What would it mean to turn away from public prosecutors and not rely on the criminal justice system as the first responder to address social ills, such as mental illness and poverty (two of the main drivers of our prison industrial complex)? More radically, what would it mean to turn away from state controlled prosecution as the primary way to address crime? What would it mean to replace a system where prosecutors hold a monopoly in deciding which cases are worthy of pursuit with a system in which “we the people,” including those of us who have traditionally had little power, would be empowered to seek and achieve justice ourselves? This Article attempts to answer these questions.

Sep 2020

FRAND and Antitrust

Herbert Hovenkamp, James B. Dinan University Professor, University of Pennsylvania Law School and The Wharton School.

This Article addresses one question: when is a Standard Setting Organization (SSO) participant’s violation of a FRAND commitment an antitrust violation, and if it is, of what kind and what are the implications for remedies? It warns against two extremes. One is thinking that any violation of a FRAND commitment is an antitrust violation as well. In the first instance FRAND obligations are contractual, and most breaches of contract do not violate any antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation. The question of an antitrust violation does not depend on whether the conduct breached a particular agreement but rather on whether it caused competitive harm. This can happen because the conduct restrained trade under section 1 of the Sherman Act, was unreasonably exclusionary under section 2 of the Sherman Act, or amounted to an anticompetitive condition or understanding as defined by section 3 of the Clayton Act. The end goal is to identify practices that harm competition, thereby injuring consumers.

Sep 2020

Equity, Punishment, and the Company You Keep: Discerning A Disgorgement Remedy Under the Federal Securities Laws

Theresa A. Gabaldon, Lyle T. Alverson Professor of Law, The George Washington University Law School; J.D. 1978, Harvard Law School; B.S. 1975, University of Arizona.

This Article first provides background on the judicial development of the SEC disgorgement remedy, up to and through Kokesh. It then examines parallel legislative developments, touching on the fraught subject of legislative history. After describing this necessary context, the Article relies on it to illuminate a problem endemic to litigation about federal remedies. This has to do with the promiscuous use of the word “equitable,” which appears to have greatly complicated any attempt to make sense of disgorgement. The confusion resulting from a sea of unexamined assumptions about “equity” that floats throughout the relevant cases and commentary has obscured a central issue. This is the difference between whether a remedy exists—the primary subject of this Article—and whether, if it does, there are constitutional consequences. In the process of shedding light on this subject, this Article answers three specific questions. The first is whether a right to seek disgorgement could be said to exist as a function of the Commission’s express authority to seek equitable remedies. The second is whether the SEC’s right to seek disgorgement could be said to exist at law. The third, which assumes an affirmative answer to both of the first two, is which of the two characterizations is more appropriate.

Sep 2020


Disciplinary Sodomy: Prison Rape, Police Brutality, and the Gendered Politics of Societal Control in the American Carceral System

David Eichert, PhD Candidate, London School of Economics; Cornell Law School 2020.

This Note engages with critical legal scholarship about gender and race to reframe discussions about sodomy in American law. Instead of concentrating on the history and constitutionality of sodomy bans, I instead demonstrate how disciplinary sodomy remains an intrinsic part of the American carceral system. I detail several scenarios in which anal rape and the threat of anal rape have been used by prison staff and law enforcement agents to control male bodies in the American carceral system. I then identify the “audiences” of this violence, demonstrating how ideas of sexuality, gender, and race are weaponized against marginalized populations to reinforce power hierarchies in American society.

Sep 2020

Developing a Digital Property Law Regime

Kevin Dong, University of Illinois Urbana-Champaign, B.A., Philosophy & Political Science, 2014; Cornell Law School, J.D., 2020.

In this Note, I will argue that the nature of digital property requires us to radically rethink what types of property rights we have, and that ultimately a new class of specific “virtual property” or “digital property” rights is necessary. In Part I, I give a brief history of the scholarship and debate around virtual property and argue why the virtual property debate is still important today. In Part II, I consider ways in which digital property and physical property may differ, and ultimately argue that Palka’s1Przemyslaw Palka, Virtual Property: Towards a General Theory (Dec. 20, 2017) (unpublished Ph.D. thesis, European University Institute) (on file with Cadmus). work on virtual property takes the necessary steps toward a coherent and sensible digital property regime. In Part III, I attempt to create the basis of what a digital property rights regime may look like and suggest future developments to my theory on digital property.

Sep 2020


↑ 1. Przemyslaw Palka, Virtual Property: Towards a General Theory (Dec. 20, 2017) (unpublished Ph.D. thesis, European University Institute) (on file with Cadmus).

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