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Cornell Law Review

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Full-Text Articles in Law

Making America Safe Again: The Proper Interpretation Of [Section] 1101 (A)(43)(S) Of The Immigration And Nationality Act From Both A Chevron And A Public Policy Perspective, Jon Derenne May 2018

Making America Safe Again: The Proper Interpretation Of [Section] 1101 (A)(43)(S) Of The Immigration And Nationality Act From Both A Chevron And A Public Policy Perspective, Jon Derenne

Cornell Law Review

The law must give our government every opportunity to protect Americans from the actions of criminal alien residents. This includes interpreting our existing statutes to provide the government with the broadest authority possible to deport resident aliens who violate our laws. As such, the optimal interpretation of the "relating to obstruction of justice" language within the INA is to implement the common sense textual interpretation applied by the Third Circuit, reading the statute broadly to encompass crimes that are listed in the obstruction of justice heading in the U.S. Code, as well as other logically related crimes.


Benefit Corporations: A Proposal For Assessing Liability In Benefit Enforcement Proceedings, Jaime Lee May 2018

Benefit Corporations: A Proposal For Assessing Liability In Benefit Enforcement Proceedings, Jaime Lee

Cornell Law Review

There has been a growing trend of more socially conscious consumption as a new generation of consumers and business leaders rises to the forefront. This trend has elicited a response from existing corporations and entrepreneurs starting new businesses such that socially-minded goals are taken into account in addition to profit-maximizing goals. Because the traditional corporation models restricted the ability of businesses to serve both socially-conscious and profit-maximizing goals simultaneously, new "fourth sector" corporations that combine aspects of the traditional for-profit, non-profit, and government sectors have been increasing in number. The most notable of these "fourth sector" corporations are benefit corporations ...


Divide & Concur: Separate Opinions & Legal Change, Thomas B. Bennett, Barry Friedman, Andrew D. Martin, Susan Navarro Smelcer May 2018

Divide & Concur: Separate Opinions & Legal Change, Thomas B. Bennett, Barry Friedman, Andrew D. Martin, Susan Navarro Smelcer

Cornell Law Review

To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for the importance of concurring opinions, demonstrating how they serve as the pulse and compass of legal change. Concurring opinions let us know what is happening below the surface of the law, thereby encouraging litigants to push the law in particular directions. This is particularly true ...


The Maternal Dilemma, Noya Rimalt May 2018

The Maternal Dilemma, Noya Rimalt

Cornell Law Review

When enacting the FMLA and setting a minimum standard of family leave for all eligible employees, Congress was particularly cautious about attacking the stereotype that all women are responsible for family caregiving. As Justice Rehnquist explained in Nevada v. Hibbs, the goal was to encourage men to assume more caretaking responsibilities at home, thus reducing employers' incentives to discriminate against women by basing hiring and promotion decisions on the stereotype of women as mothers. Indeed, the likely contribution of the gender- neutral parental leave legislation to the promotion of gender equality in the division of care-work at home, hence to ...


Lawyers' Abuse Of Technology, Cheryl B. Preston May 2018

Lawyers' Abuse Of Technology, Cheryl B. Preston

Cornell Law Review

Lawyers are highly educated and, allegedly, of higher than average intelligence, but sometimes individual lawyers demonstrate colossal errors in judgment, especially when insufficiently trained in the new and emerging risks involved with the technological age. For instance, although the internet is a necessary tool for attorneys' and is now a prominent feature in the everyday lives of all actors in the legal system, this technology poses particularized and often unanticipated risks of professional and ethical abuse -- risks that are extraordinary both in quantity and intensity. As Harvard's Director of the Center for the Legal Profession warned: We are "only ...


The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams Mar 2018

The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams

Cornell Law Review

In the summer of 2015 the United States Supreme Court handed down two groundbreaking constitutional family law decisions. One decision became famous overnight Obergefell v. Hodges declared that same-sex couples have the constitutional right to marry. The other, Kerry v. Din, went largely overlooked. That later case concerned not the right to marry but the rights of marriage. In particular, it asked whether a person has a constitutional liberty interest in living with his or her spouse. This case is suddenly of paramount importance: executive orders targeting particular groups of immigrants implicate directly this right to family reunification.

This Article ...


The Central Claiming Renaissance, Andres Sawicki Mar 2018

The Central Claiming Renaissance, Andres Sawicki

Cornell Law Review

The Supreme Court has recently reinvigorated the law of patentable subject matter. But beneath the headlines proclaiming the return of limits to patent eligibility, a more profound shift has taken place: central claiming is reborn.

The Court's eligibility cases are significant outliers compared to today's run-of-the-mill patent law because claim language plays little role in their analyses. In our modern peripheral claiming system, the claim language is the nearexclusive guide to the patent's boundaries. But in its earliest days, our patent system pursued a central claiming approach, in which the inventor's actual work determined the patent ...


Using Daubert To Evaluate Evidence-Based Sentencing, Charlotte Hopkinson Mar 2018

Using Daubert To Evaluate Evidence-Based Sentencing, Charlotte Hopkinson

Cornell Law Review

Despite its purported positive impact on the criminal justice system, evidence-based sentencing risks fooling judges and juries and further contributing to the overrepresentation of men of color and poor people in prisons. The problems with the creation of these models, namely a lack of replication, potentially unconstitutional use of certain factors, high false positive rates, and issues with G2i abstraction, should all create serious concerns for actors in and around the criminal justice system.


The Partiality Norm: Systematic Deference In The Office Of Legal Counsel, Adoree Kim Mar 2018

The Partiality Norm: Systematic Deference In The Office Of Legal Counsel, Adoree Kim

Cornell Law Review

This study shows that the Office of Legal Counsel does not offer "detached, apolitical legal advice" in practice. Rather, the OLC is deeply and systematically deferential to the President. The implications are grave considering the OLC's de facto lawmaking power, a result of its position as legal adviser for the executive-- "the judgment of [the OLC] . . . becomes the law." Moreover, the OLC "is frequently asked to opine on issues of first impression that are unlikely to be resolved by the courts--a circumstance in which OLC's advice may effectively be the final word on the controlling law." Whether the ...


International Cybertorts: Expanding State Accountability In Cyberspace, Rebecca Crootof Mar 2018

International Cybertorts: Expanding State Accountability In Cyberspace, Rebecca Crootof

Cornell Law Review

States are not being held accountable for the vast majority of their harmful cyberoperations, largely because classifications created in physical space do not map well onto the cyber domain. Most injurious and invasive cyberoperations are not cybercrimes and do not constitute cyberwarfare, nor are states extending existing definitions of wrongful acts permitting countermeasures to cyberoperations (possibly to avoid creating precedent restricting their own activities). Absent an appropriate label, victim states have few effective and nonescalatory responsive options, and the harms associated with these incidents lie where they fall.

This Article draws on tort law and international law principles to construct ...


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 ...


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 ...


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 ...


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 ...


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 ...


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.


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 ...


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 ...


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.


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 ...


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.


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 ...


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.


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 ...


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.


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 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.


Empowering Individual Plaintiffs, Gideon Parchomovsky, Alex Stein Jul 2017

Empowering Individual Plaintiffs, Gideon Parchomovsky, Alex Stein

Cornell Law Review

No abstract provided.