CLR Forum

1983

Brandon Hasbrouck*

This Piece embraces a fictional narrative to illustrate deep flaws in our legal system. It borrows its basic structure and a few choice lines from George Orwell’s classic novel Nineteen Eighty-Four. Like Orwell’s novel, it is set in the not-too-distant future to comment on problems already emerging in the present. The footnotes largely provide examples of some of those problems and how courts have treated them in a constitutional law...

We analyze whether non-shareholder constituencies are better protected with internal corporate law reform or with external regulation. We reply to Professor Aneil Kovvali’s article, Stark Choices for Corporate Reform, that criticizes some of our previous output, in which we warned that a stakeholderist corporate law reform would stymie efforts to achieve effective stakeholder protections with external regulation. In his article, Kovvali...

This Piece describes a sophisticated but underreported system of mass-defendant intellectual property litigation called the “Schedule A Defendants Scheme” (the “SAD Scheme”), which occurs most frequently in the Northern District of Illinois and principally targets online merchants based in China. The SAD Scheme capitalizes on weak spots in the Federal Rules of Civil Procedure, judicial deference to IP rightsowners, and online marketplaces’...

SOME ARE MORE EQUAL THAN OTHERS: U.S. SUPREME COURT CLERKSHIPS

Tracey E. George,* Albert H. Yoon** & Mitu Gulati***

The most elite and scarce of all U.S. legal credentials is serving as a Justice on the U.S. Supreme Court. A close second is clerking for a Justice. A Court clerkship is a prize as well as a ticket to future success. Rich accounts of the experience fill bookshelves and journal pages. Yet the public lacks a clear story about who wins this clerkship lottery. Original analysis of forty years of clerkships tells that story. New datasets detail clerks’...

Judicial clerkships are typically described in the rosiest of terms—as fostering lifelong mentor-mentee relationships between judges and clerks and conferring only professional benefits. The downsides of clerking are rarely discussed. The clerkship application process is opaque. Little information exists to help law students identify positive work environments and avoid judges who mistreat their clerks. The secretive, fear-infused method of information-sharing...

A MORE PERFECT UNION FOR WHOM?

Emmanuel Hiram Arnaud*

Amending the federal Constitution has been instrumental in creating and developing the North American constitutional project. The difficult process embedded in Article V has been used by “The People” to expand rights and democracy, fix procedural deficiencies, and even overturn Supreme Court precedent. Yet, it is no secret that the amendment process has fallen to the wayside and that a constitutional amendment in our present age of extreme...

Child welfare agencies and family courts have long removed children from allegedly abusive or neglectful parents as an ultimate means of ensuring a child’s safety. The theory that high numbers of removals are necessary to keep children safe, however, had never been tested—there was no mechanism or political will to do so until the onset of the COVID-19 pandemic in March 2020. With the near-complete shutdown of New York City, the child welfare...

Compelled interoperability can be a useful judicial or statutory remedy for dominant firms, including digital platforms with significant market power in a product or service. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth.

Given the wide variety of structures and business models for big tech, “interoperability”...

This Comment examines the collateral order doctrine, a narrow exception to the otherwise general rule that appeals from interlocutory orders are generally disallowed in the federal court system. It does so in the context of fugitive disentitlement orders. This Comment focuses on a recent Second Circuit decision, United States v. Bescond, analyzing its consequences for interlocutory challenges by foreign defendants who live and conducted...

UNMASKING TEXTUALISM: LINGUISTIC MISUNDERSTANDING IN THE TRANSIT MASK ORDER CASE AND BEYOND

Stefan Th. Gries, Michael Kranzlein, Nathan Schneider, Brian Slocum & Kevin Tobia*

COVID-19 has killed over one million Americans, and its massive impact on society is still unfolding. The government’s strategy to combat the disease included an order regulating the wearing of masks on transit. Recently, a federal district court vacated the government’s transit mask order, ruling that the order exceeds the statutory authority of the Centers for Disease Control and Prevention. The district court relied heavily on the statute’s...