Law Commons^™

The Audiences Of Statutes, David S. Louk

Cornell Law Review

Although a maxim of statutory drafting is to identify the relevant audience and draft so that the audience can "get the message," conventional theories of statutory interpretation often overlook important considerations about how statutes communicate and delegate to a diverse range of intended audiences. Statutes exist to change the conduct and behavior of many kinds of intended audiences, including administrative agencies, state and local governments, law enforcement officers, corporations, interest groups, lawyers, and laypeople. Influenced by lessons from the philosophies of law and language, this Article contends that Judicial statutory interpretation serves an important yet underappreciated role in providing a …

Volume 105, Number 1 Table Of Contents And Front Matter

Cornell Law Review

No abstract provided.

Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen

Cornell Law Review

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today's Supreme Court arguments are developed online: they are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent the parties or have even filed a brief in the case at all. This "virtual briefing" (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case …

Affordable Renewables - Unjust And Unreasonable?, Grace Brosofsky

Cornell Law Review

The Federal Energy Regulatory Commission (FERC)-an independent agency tasked with ensuring 'just and reasonable" energy rates-has begun to use energy market payment systems to prop up fossil fuels. FERC has issued orders that prevent renewables from competing with fossil fuels by forcing renewables to bid into energy markets at artificially high rates. FERC has argued that state clean energy subsidies distort energy markets by "suppressing prices" and pushing "needed" fossil fuel generators out of the market. According to FERC, a federal intervention is necessary to protect "market integrity" and ensure that consumers can access reliable electricity.

This Note argues that …

A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko

Cornell Law Review

This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine- learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate (1) that constitutional discourse has grown increasingly polarized over the past four decades; (2) that polarization has grown faster in constitutional discourse than in nonconstitutlonal discourse; (3) that conservative-leaning speakers have driven …

Extending United States V. Mendoza: Why Defensive Nonmutual Issue Preclusion Is Unavailable Against The Federal Government, Jake E. Goodman

Cornell Law Review

Imagine a situation where the U.S. Securities and Exchange Commission (SEC) is Looking to enforce the antifraud provision of the Securities Exchange Act of 1934 against two different companies, arising out of the same transaction. Now suppose the SEC sues Company A ftrst. However, the court finds no violation based on the factual determinations of the transaction and renders a judgment refusing to impose liability against Company A. Unsatisfied, the SEC decides to sue Company B under the same provision. Company B, however, believes the factual issues were already litigated and determined against Company A and wants to preclude relitigation …

Oversight Failure In Securities Markets, Yesha Yadav

Cornell Law Review

According to statute, securities exchanges play an essential role in ensuring compliance with applicable laws and industry standards. Long imagined as unique in their institutional capacity to bring traders together, collect information and exclude problem participants from the marketplace, exchanges have offered an efficient source of private discipline for public regulators. The classic conception of the exchange, however, no longer holds true in today's markets. Rather than concentrate activity within a handful of exchanges, equity markets are fragmented across a network of thirteen exchanges and around forty lightly regulated, off-exchange alternative venues (colloquially, "dark pools"). This Article shows that the …

Does The Clear And Present Danger Test Survive Cost-Benefit Analysis?, Cass R. Sunstein

Cornell Law Review

Under American regulatory law, the dominant contemporary test involves cost-benefit analysis. The benefits of regulation must justify the costs; if they do, regulation is permissible and even mandatory. Under American free speech law, in sharp contrast, an important contemporary test for the regulation of speech involves "clear and present danger." In general, officials cannot censor or regulate political speech on the ground that the benefits of regulation justify the costs. They may proceed only if the speech is likely to produce imminent lawless action. In principle, it is not simple to explain why the free speech test does not involve …

Incarceration Or E-Incarceration: California's Sb 10 Bail Reform And The Potential Pitfalls For Pretrial Detainees, Ashley Mullen

Cornell Law Review

No abstract provided.

Vol. 104, Number 7 Table Of Contents And Front Matter

Cornell Law Review

No abstract provided.

Privacy As Pretext, Susan Hazeldean

Cornell Law Review

The terms of the debate over LGBT rights have shifted in recent years, particularly since the Supreme Court made marriage equality the law of the land in Obergefell v. Hodges. Today, people against LGBT equality argue that curtailing LGBT rights is necessary to protect the rights of others. One potent rhetorical weapon used to oppose LGBT rights is the claim that antidiscrimination protections for LGBT people undermine privacy because they permit transgender people to use facilities that accord with their gender identity. This Article uses legal privacy theory to show that allowing transgender people into gendered facilities does not undermine …

Aiding And Abetting In International Criminal Law, Oona A. Hathaway, Alexandra Francis, Aaron Haviland, Srinath Reddy Kethireddy, Alyssa T. Yamamoto

Cornell Law Review

To achieve justice for violations of international law such as genocide, torture, crimes against humanity, and war crimes, it is essential to address complicity for international crimes. Beginning in the 1990s, there was a proliferation of international and hybrid criminal tribunals, which sought to hold perpetrators of these crimes accountable and, in turn, generated an explosion of international criminal law jurisprudence. Nonetheless, the contours of aiding and abetting liability in international criminal law remain contested. Courts-both domestic and international-have long struggled to identify the proper legal standard for holding actors liable for aiding and abetting even the most serious violations …

Locked Up, Then Locked Out: The Case For Legislative - Rather Than Executive - Felon Disenfranchisement Reform, Amanda J. Wong

Cornell Law Review

A cohesive anti-felon disenfranchisement perspective has gained traction over the last two decades in America. Scholars have harshly criticized disenfranchisement provisions for their insulation and perpetuation of nonwhite marginalization d la Jim Crow. Other critics have also decried felon disenfranchisement for barring prior felons from full social integration. Still more critics point to how disenfranchisement provisions inequitably affect election outcomes. State leaders, recognizing the prevalent attitude against felon disenfranchisement, have taken significant measures to mitigate disenfranchisement laws-for example, some state governors have issued executive orders categorically re-enfranchising ex-felons. These types of actions are the focus on this Note. Certainly, unilateral …

Vol. 104, Number 6 Table Of Contents And Front Matter

Cornell Law Review

No abstract provided.

Politics And Authority In The U.S. Supreme Court, Joshua Fischman

Cornell Law Review

Public discourse on the Supreme Court often focuses on the divide between the liberal and conservative Justices. There has been a second persistent divide in the Court, however, which has been largely overlooked by scholars, the media, and the public. This second divide has arisen most often in cases involving the jury trial right, the Confrontation Clause, the Fourth Amendment, punitive damages, and the interpretation of criminal statutes. This Article argues that this divide represents disagreements among the Justices over how to determine the limits of the authority of legal actors, particularly juries, executive officials, and trial judges. On one …

Staying Faithful To The Standards Of Proof, Kevin M. Clermont

Cornell Law Review

Academics have never quite understood the standards of proof or, indeed, much about the theory of proof Their formulations beget probabilistic musings, which beget all sorts of paradoxes, which in turn beget radical reconceptions and proposals for reform. The theoretical radicals argue that the law needs some basic reconception such as recognizing the aim of legal proof as not at all a search for truth but rather the production of an acceptable result, or that the law needs some shattering reform such as greatly heightening the civil standard of proof on each part of the case to ensure a more-likely …

Incorporating The Fresh Start Into Sovereign Debt Restructuring Through Odious Debt, Matthew B. Masaro

Cornell Law Review

No abstract provided.

An Empirical Investigation Of Third Party Consumer Litigant Funding, Ronen Avraham, Anthony Sebok

Cornell Law Review

No abstract provided.

Speech, Intent, And The President, Katherine Shaw

Cornell Law Review

Judicial inquiries into official intent are a familiar feature of the legal landscape. Across various bodies of constitutional and public law-from equal protection and due process to the First Amendment's Free Exercise and Establishment Clauses, from the Eighth Amendment to the Dormant Commerce Clause, and in statutory interpretation and administrative law cases across a range of domains-assessments of the intent of government actors are ubiquitous in our law.

But whose intent matters to courts evaluating the meaning or lawfulness of government action? When it comes to statutes, forests have been felled debating the place of legislative intent. But, although the …

Traveling While Hispanic: Border Patrol Immigration Investigatory Stops At Tsa Checkpoints And Hispanic Appearance, Pablo Chapablanco

Cornell Law Review

No abstract provided.

The Endogenous Fourth Amendment: An Empirical Assessment Of How Police Understandings Of Excessive Force Become Constitutional Law, Osagie K. Obasogie, Zachary Newman

Cornell Law Review

If the Fourth Amendment is designed to protect citizens from law enforcement abusing its powers, why are so many unarmed Americans killed? Traditional understandings of the Fourth Amendment suggest that it has an exogenous effect on police use of force, Le., that the Fourth Amendment provides the ground rules for how and when law enforcement can use force that police departments turn into use-of-force policies that ostensibly limit police violence. In this Article, we question whether this exogenous understanding of the Fourth Amendment in relation to excessive force claims is accurate by engaging in an empirical assessment of the use-of-force …

The Paradox Of Source Code Secrecy, Sonia K. Katyal

Cornell Law Review

In Lear v. Adkins, the Supreme Court precipitously wrote, "federal law requires that all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent." Today, it is clear that trade secrecy's dominance over source code has been a significant cause for concern in cases involving the public interest. To protect civil rights in the age of automated decision making, I argue, we must limit opportunities for seclusion in areas of intellectual property, criminal justice, and governance more generally. The solution, therefore, does not require a complete overhaul of the existing system, but …

Vol. 104, No. 4 Front Matter

Cornell Law Review

No abstract provided.

The Thirteenth Amendment: Modern Slavery, Capitalism, And Mass Incarceration, Michele Goodwin

Cornell Law Review

Slavery's preservation in the United State can-in part-be explained by its fluid transformations, which continuously exacted economic gains, preserved southern social order, and inured benefits to private parties as well as the state. These transformations did not outpace law. Rather, the rule of law in the south and lawlessness among local law enforcement frequently accommodated these transformations and innovations. Historically, efforts to stamp out the myriad forms of slavery-convict leasing, peonage, contract transfers, so-called "apprenticeships," and chain gangs-frequently fell short because of local collusion and complicity, weak federal interventions and protections, and violence. The specter of lynching, which included the …

Hertz So Good: Amazon, General Jurisdiction's Principal Place Of Business, And Contacts Plus As The Future Of The Exceptional Case, D. (Douglas) E. Wagner

Cornell Law Review

No abstract provided.

Local Evidence In Constitutional Interpretation, Brandon L. Garrett

Cornell Law Review

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look to local law. Although it has gone largely unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. Local evidence may inform the decision whether to recognize a constitutional right, it may inform the interpretation of the right, and it may inform the remedies for a constitutional violation. For example, the Supreme Court has examined local enforcement patterns to …

Toward A Horizontal Fiduciary Duty In Corporate Law, Asaf Eckstein, Gideon Parchomovsky

Cornell Law Review

Fiduciary duty is arguably the single most important aspect of our corporate law system. It consists of two distinct subduties-a duty of care and a duty of loyalty-and it applies to all directors and corporate officers. Yet, under extant law, the duty only applies vertically, in the relationship between directors and corporate officers and the firm. At present, there exists no horizontal fiduciary duty: directors and corporate officers owe no fiduciary duty to each other. Consequently, if one of them falls her peers, they cannot seek direct legal recourse against her even when they stand to suffer significant reputational and …

Property, Dignity, And Human Flourishing, Gregory S. Alexander

Cornell Law Review

Human flourishing and human dignity are not empty phrases. They have real content, and they matter in real lives. The facts are that we want to live flourishing lives and we want to live lives of dignity. We cannot live such lives, however, unless certain conditions are fulfilled. Among these conditions, flourishing is personal autonomy, understood in the sense of self-authorship. Autonomy in that sense itself requires certain conditions. Property is among the conditions intimately connected with self-authorship. A person who lacks basic forms of property such as food and adequate shelter is denied self-authorship, without which she cannot experience …

Rethinking "Just" Compensation: Dignity Restoration As A Basis For Supplementing Existing Takings Remedies With Government-Supported Community Building Initiatives, Alyssa M. Hasbrouck

Cornell Law Review

Longstanding calls for the Supreme Court to revisit the Takings Clause's just compensation requirement are especially relevant in light of urban renewal's destructive history. However, the just compensation requirement should be viewed as a floor, not as a ceiling. Even in the absence of formal action by courts, legislatures and local governments can act to fulfill the government's constitutional obligation of "full and perfect" compensation. By taking preemptive action to support community-based initiatives, financially as well as politically, the same legislatures that seized and destroyed urban neighborhoods can begin to set things right. Court-ordered investments in the longterm well-being of …

The Fair Labor Standards Act At 80: Everything Old Is New Again, Kati L. Griffith

Cornell Law Review

On the eightieth anniversary of the federal wage and hour statute, the Fair Labor Standards Act of 1938 (FLSA), critics warn that it cannot keep pace with shifting business trends. More and more individuals engage in "contract work," some of which takes place in the much publicized "gig economy." These work arrangements raise questions about whether these workers are "employees," covered by U.S. labor and employment law, or "independent contractors." Subcontracting arrangements, or what some call domestic outsourcing, are also expanding. Indeed, more and more workers in the U.S. economy engage with multiple businesses, raising questions of which of these …