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Cornell Law Review

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Full-Text Articles in Law

The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger Jan 2018

The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger

Cornell Law Review

As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for ...


Stricken: The Need For Positive Statutory Law To Prevent Discriminatory Peremptory Strikes Of Disabled Jurors, Jordan Benson Jan 2018

Stricken: The Need For Positive Statutory Law To Prevent Discriminatory Peremptory Strikes Of Disabled Jurors, Jordan Benson

Cornell Law Review

A representative jury ensures a truly impartial trial and that all groups are able to share in this valuable opportunity for civic engagement.Though the disabled constitute a minority of the population, their viewpoint is no less necessary to securing the benefits of a representative jury than that of groups already afforded protection from discriminatory strikes. As the disabled become more represented in many areas of society, their continued underrepresentation on juries will become even more difficult to justify. Discriminatory peremptory strikes are a significant, discretionary means by which the disabled can continue to be excluded from juries even when ...


A First Amendment Right To Corrupt Your Politician, Eugene Temchenko Jan 2018

A First Amendment Right To Corrupt Your Politician, Eugene Temchenko

Cornell Law Review

Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is well-established that the Constitution protects the right of political association, which includes contributions to candidates in return for ingratiation and access. Nonetheless, courts and scholars have generally limited this right to contributions to campaigns for public office. After McDonnell v. United States, that may change. Reading the McDonnell opinion in light of McCutcheon, this Note and other commentators conclude that the Supreme Court may have inadvertently ...


Semi-Confidential Settlements In Civil, Criminal, And Sexual Assault Cases, Saul Levmore, Frank Fagan Jan 2018

Semi-Confidential Settlements In Civil, Criminal, And Sexual Assault Cases, Saul Levmore, Frank Fagan

Cornell Law Review

Settlement is more likely if parties are free to set its terms, including a promise that these terms will remain secret between them. State sunshine-in-litigation laws work to defeat this incentive for confidentiality in order to protect third parties from otherwise unknown hazards. The intuition is that a wrongdoer should not be able to pay one plaintiff for silence at the expense of other victims. This Article begins by showing that the intuition is often wrong or overstated. A plaintiff who can assess a defendant’s vulnerability to future claims can extract a large enough settlement to provide substantial deterrence ...


Degrees Of Deference: Applying Vs. Adopting Another Sovereign's Law, Kevin M. Clermont Jan 2018

Degrees Of Deference: Applying Vs. Adopting Another Sovereign's Law, Kevin M. Clermont

Cornell Law Review

Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of federal law’s constraint on state actors, but also in the horizontal choice-of-law setting and even in connection with the status of international law. Application and adoption are different avenues by which to approach a pluralist world. Application involves the recognition of the ...


Panel Assignment In The Federal Courts Of Appeals, Marin K. Levy Nov 2017

Panel Assignment In The Federal Courts Of Appeals, Marin K. Levy

Cornell Law Review

It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random. This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews ...


Beware The "Terror Gap": Closing The Loophole Between The U.S. Terrorist Watchlist System And The Right To Bear Arms, Elizabeth M. Sullivan Nov 2017

Beware The "Terror Gap": Closing The Loophole Between The U.S. Terrorist Watchlist System And The Right To Bear Arms, Elizabeth M. Sullivan

Cornell Law Review

No abstract provided.


Columbia University And Incarcerated Worker Labor Unions Under The National Labor Relations Act, Kara Goad Nov 2017

Columbia University And Incarcerated Worker Labor Unions Under The National Labor Relations Act, Kara Goad

Cornell Law Review

No abstract provided.


Sharing, Samples, And Generics: An Antitrust Framework, Michael A. Carrier Nov 2017

Sharing, Samples, And Generics: An Antitrust Framework, Michael A. Carrier

Cornell Law Review

Rising drug prices are in the news. By increasing price, drug companies have placed vital, even life-saving, medicines out of the reach of consumers. In a recent development, brand firms have prevented generics even from entering the market. The ruse for this strategy involves risk-management programs known as Risk Evaluation and Mitigation Strategies (“REMS”). Pursuant to legislation enacted in 2007, the FDA requires REMS when a drug’s risks (such as death or injury) outweigh its rewards. Brands have used this regime, intended to bring drugs to the market, to block generic competition. Regulations such as the federal Hatch-Waxman Act ...


The Perverse Consequences Of Disclosing Standard Terms, Tess Wilkinson-Ryan Nov 2017

The Perverse Consequences Of Disclosing Standard Terms, Tess Wilkinson-Ryan

Cornell Law Review

Although assent is the doctrinal and theoretical hallmark of contract, its relevance for form contracts has been drastically undermined by the overwhelming evidence that no one reads standard terms. Until now, most political and academic discussions of this phenomenon have acknowledged the truth of universally unread contracts, but have assumed that even unread terms are at best potentially helpful, and at worst harmless. This Article makes the empirical case that unread terms are not a neutral part of American commerce; instead, the mere fact of fine print inhibits reasonable challenges to unfair deals. The experimental study reported here tests the ...


Repeat Players In Multidistrict Litigation: The Social Network, Elizabeth Chamblee Burch, Margaret S. Williams Sep 2017

Repeat Players In Multidistrict Litigation: The Social Network, Elizabeth Chamblee Burch, Margaret S. Williams

Cornell Law Review

As class certification wanes, plaintiffs’ lawyers resolve hundreds of thousands of individual lawsuits through aggregate settlements in multidistrict litigation. But without class actions, formal rules are scarce and judges rarely scrutinize the private agreements that result. Meanwhile, the same principal- agent concerns that plagued class-action attorneys linger. These circumstances are ripe for exploitation: few rules, little oversight, multi-million dollar common-benefit fees, and a push for settlement can tempt a cadre of repeat players to fill in the gaps in ways that further their own self-interest. Although multidistrict litigation now comprises 36% of the pending federal civil caseload, legal scholars have ...


The House Always Wins: Systemic Disadvantage For Criminal Defendants And The Case Against The Prosecutorial Veto, Evan G. Hall Sep 2017

The House Always Wins: Systemic Disadvantage For Criminal Defendants And The Case Against The Prosecutorial Veto, Evan G. Hall

Cornell Law Review

No abstract provided.


What Would Grandma Say? How To Respond When Cyber Hackers Reveal Private Information To The Public, Jason P. Ottomano Sep 2017

What Would Grandma Say? How To Respond When Cyber Hackers Reveal Private Information To The Public, Jason P. Ottomano

Cornell Law Review

No abstract provided.


Debate, Richard Primus, Kevin M. Stack, Christopher Serkin, Nelson Tebbe Sep 2017

Debate, Richard Primus, Kevin M. Stack, Christopher Serkin, Nelson Tebbe

Cornell Law Review

No abstract provided.


How People Update Beliefs About Climate Change: Good News And Bad News, Cass R. Sunstein, Sebastian Bobadilla-Suarez, Stephanie C. Lazzaro, Tali Sharot Sep 2017

How People Update Beliefs About Climate Change: Good News And Bad News, Cass R. Sunstein, Sebastian Bobadilla-Suarez, Stephanie C. Lazzaro, Tali Sharot

Cornell Law Review

People are frequently exposed to competing evidence about climate change. We examined how new information alters people’s beliefs. We find that people who are not sure that man-made climate change is occurring, and who do not favor an international agreement to reduce greenhouse gas emissions, show a form of asymmetrical updating: They change their beliefs in response to unexpected good news (suggesting that average temperature rise is likely to be less than previously thought) and fail to change their beliefs in response to unexpected bad news (suggesting that average temperature rise is likely to be greater than previously thought ...


Order Without Intellectual Property Law : Open Science In Influenza, Amy Kapczynski Sep 2017

Order Without Intellectual Property Law : Open Science In Influenza, Amy Kapczynski

Cornell Law Review

Today, intellectual property (IP) scholars accept that IP as an approach to information production has serious limits. But what lies beyond IP? A new literature on “intellectual production without IP” (or “IP without IP”) has emerged to explore this question, but its examples and explanations have yet to convince skeptics. This Article reorients this new literature via a study of a hard case: a global influenza virus-sharing network that has for decades produced critically important information goods, at significant expense, and in a loose-knit group—all without recourse to IP. I analyze the Network as an example of “open science ...


Empowering Individual Plaintiffs, Gideon Parchomovsky, Alex Stein Jul 2017

Empowering Individual Plaintiffs, Gideon Parchomovsky, Alex Stein

Cornell Law Review

No abstract provided.


The Disobedient Jury: Why Lawmakers Should Codify Jury Nullification, Caisa E. Royer Jul 2017

The Disobedient Jury: Why Lawmakers Should Codify Jury Nullification, Caisa E. Royer

Cornell Law Review

No abstract provided.


The Finance Franchise, Robert C. Hockett, Saule T. Omarova Jul 2017

The Finance Franchise, Robert C. Hockett, Saule T. Omarova

Cornell Law Review

No abstract provided.


The Political Economy Of The Constitutional Right To Asylum, Lucas Kowalczyk, Mila Versteeg Jul 2017

The Political Economy Of The Constitutional Right To Asylum, Lucas Kowalczyk, Mila Versteeg

Cornell Law Review

No abstract provided.


Why Congress Cannot Unilaterally Repeal Puerto Rico's Constitution, Adam W. Mccall Jul 2017

Why Congress Cannot Unilaterally Repeal Puerto Rico's Constitution, Adam W. Mccall

Cornell Law Review

No abstract provided.


The Great Failure Of The Ipxi Experiment: Why Commoditization Of Intellectual Property Failed, Merritt L. Steele May 2017

The Great Failure Of The Ipxi Experiment: Why Commoditization Of Intellectual Property Failed, Merritt L. Steele

Cornell Law Review

No abstract provided.


Cyber Attack Exception To The Foreign Sovereign Immunities Act, Paige C. Anderson May 2017

Cyber Attack Exception To The Foreign Sovereign Immunities Act, Paige C. Anderson

Cornell Law Review

No abstract provided.


Space, Time, And Historical Injustice: A Feminist Conflict-Of-Laws Approach To The Comfort Women Agreement, Karen Knop, Annelise Riles May 2017

Space, Time, And Historical Injustice: A Feminist Conflict-Of-Laws Approach To The Comfort Women Agreement, Karen Knop, Annelise Riles

Cornell Law Review

No abstract provided.


Coordinating Compliance Incentives, Veronica Root May 2017

Coordinating Compliance Incentives, Veronica Root

Cornell Law Review

No abstract provided.


Democratic Enforcement: Accountability And Independence For The Litigation State, Margaret H. Lemos May 2017

Democratic Enforcement: Accountability And Independence For The Litigation State, Margaret H. Lemos

Cornell Law Review

No abstract provided.


Information Gathering In The Era Of Mobile Technology: Towards A Liberal Right To Record, Nicholas J. Jacques Mar 2017

Information Gathering In The Era Of Mobile Technology: Towards A Liberal Right To Record, Nicholas J. Jacques

Cornell Law Review

No abstract provided.


The Smart Fourth Amendment, Andrew G. Ferguson Mar 2017

The Smart Fourth Amendment, Andrew G. Ferguson

Cornell Law Review

No abstract provided.


The President's Power To Tax, Daniel J. Hemel Mar 2017

The President's Power To Tax, Daniel J. Hemel

Cornell Law Review

No abstract provided.


De-Policing, Stephen Rushin, Griffin Edwards Mar 2017

De-Policing, Stephen Rushin, Griffin Edwards

Cornell Law Review

No abstract provided.