2024-03-28T16:23:59Z
http://scholarship.law.cornell.edu/do/oai/
oai:scholarship.law.cornell.edu:biss_papers-1001
2013-06-16T21:47:27Z
publication:biss_papers
publication:conf_lec_work
The Women's Movement and Legal Reform in Thailand
Somswasdi, Virada
In the late 1960's, during the time of dictatorial rule in Thailand, a group of educated upper class women in legal and business professions had actively taken up the call for a reform in the family law, which was actually a continuation of the activism of the mid 1950's. The focal issues included the right of a wife to matrimonial property management and the prevention of double marital registration. The campaign, even though it contributed greatly in allowing women a better status in society, was seen by many as an outcry of wealthy elitist women whose concerns were vested in personal economic interests and in the widespread infidelity problem of their husbands having minor wives. It did not touch upon any societal patriarchal structural problems or gender equality. Nor did it touch upon problems of the low income and rural women. The women's movement for legal reform in Thailand cannot afford to be isolated from other social or women's movements. With predominantly male cultural, social, economic and political structure, it has to fight against gender bias cross cutting over other biases stemmed from privileges such as class, ethnicity, race, age, religion and military might.
2003-04-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/biss_papers/1
https://scholarship.law.cornell.edu/context/biss_papers/article/1001/viewcontent/auto_convert.pdf
Cornell Law School Berger International Speaker Papers
Scholarship@Cornell Law: A Digital Repository
Law and Gender
oai:scholarship.law.cornell.edu:clsops_papers-1000
2003-04-21T20:10:05Z
publication:libpub
publication:clsops_papers
publication:facsch
Contents of Legal Information on the Internet: U.S. Perspectives
Germain, Claire M.
This article examines the contents of legal data and information on the Internet, with a special focus on the United States. It then evaluates the quality of the data, its impact on legal research and access to legal information, and addresses some issues raised by the digital medium, such as its reliability and permanent access concerns.
1998-10-23T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/clsops_papers/1
https://scholarship.law.cornell.edu/context/clsops_papers/article/1000/viewcontent/auto_convert.pdf
Cornell Law Faculty Working Papers
Scholarship@Cornell Law: A Digital Repository
Legal Research and Bibliography
Legal Writing and Research
oai:scholarship.law.cornell.edu:clsops_papers-1001
2003-04-22T16:05:04Z
publication:libpub
publication:clsops_papers
publication:facsch
Digital Legal Information: Ensuring Access to the "Official" Word of the Law
Germain, Claire M.
In the United States today, digital versions of current decisions, bills, statutes, and regulations issued by federal and state entities are widely available on publicly accessible Internet Web sites. Worldwide, official legal information issued by international organizations and foreign governments is also becoming available on the Web. However, there are currently no standards for the production and authentication of digital documents. Moreover, the information is sometimes available only for a short time and then disappears from the site. Most of that digital information provides only a right of access, and no ownership, or control over the data, unless it is downloaded on a server, or stored on a CD. The long-term access to digital legal information is a matter of concern. What is at stake is the transmission of official documents, "the word of the law," to future generations.
1999-05-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/clsops_papers/2
https://scholarship.law.cornell.edu/context/clsops_papers/article/1001/viewcontent/auto_convert.pdf
Cornell Law Faculty Working Papers
Scholarship@Cornell Law: A Digital Repository
Legal Research and Bibliography
Legal Writing and Research
oai:scholarship.law.cornell.edu:ealccs_caafm-1000
2003-04-25T14:16:24Z
publication:ealcc
publication:conf_lec_work
publication:ealccs_caafm
Financing Chinese Capitalism: Principal Banks, Economic Crisis, and Chinese Family Firms in Singapore
Yeung, Henry W.
It is a widely circulated myth that Chinese family firms rely exclusively on kinship ties and network capital to finance their domestic and international operations. In this empirical paper, I argue that large Chinese family firms are increasingly engaging with financial markets on a global scale. In order to finance their transnational business activities, these firms require financial services from banks beyond their domestic economies, resulting in a growing number and geographical spread of their principal banks. Second, I contend that as these Chinese family firms are diversifying their principal banks beyond a narrow confinement to other Chinese family-owned banks and financial institutions, their corporate performance will improve over time. Drawing upon time-series data (1996, 1998, and 2001) on over 150 Chinese family firms listed on the Singapore Exchange, I discuss both the geographical origins of their principal banks and the impact of the selection of these banks on their corporate performance before and after the 1997/1998 Asian economic crisis. I also show whether there is a relationship between the use of principal banks by these Chinese family firms and their shareholding structures.
2003-04-26T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/ealccs_caafm/1
https://scholarship.law.cornell.edu/context/ealccs_caafm/article/1000/viewcontent/Yeung_paper.pdf
Cultural Approaches to Asian Financial Markets
Scholarship@Cornell Law: A Digital Repository
Banking and Finance
Economics
Banking and Finance Law
Economics
oai:scholarship.law.cornell.edu:clsops_papers-1003
2003-04-25T19:04:55Z
publication:clsops_papers
publication:facsch
Property as a Fundamental Constitutional Right? The German Example
Alexander, Gregory S.
This article examines an apparent paradox in comparative constitutional law. Property rights are not treated as a fundamental right in American constitutional law; they are, however, under the Basic Law (i.e., constitution) of Germany, a social-welfare state that otherwise gives less weight to property. The article uses this apparent paradox as a vehicle for considering the different reasons why constitutions protect property. It explains the difference between the German and American constitutional treatment of property on the basis of the quite different approaches taken in the two systems to the purposes of constitutional protection of property.
2003-03-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/clsops_papers/4
https://scholarship.law.cornell.edu/context/clsops_papers/article/1003/viewcontent/auto_convert.pdf
Cornell Law Faculty Working Papers
Scholarship@Cornell Law: A Digital Repository
Constitutional Law
Property-Personal and Real
Constitutional Law
Property Law and Real Estate
oai:scholarship.law.cornell.edu:clsops_papers-1005
2003-04-29T15:00:07Z
publication:clsops_papers
publication:facsch
Victim Impact Statements in Capital Trials: a Selected Bibliography
Callihan, Jean M.
This bibliography collects and organizes citations to dissertations, chapters in books, journal articles, legislative materials, books, and book reviews from 1980 forward that analyze the effect of victim impact statements in capital cases. The main purpose of the bibliography is to present citations to empirical studies and quantitative evaluations of victim impact statements in the United States and other countries. Because there are few reported empirical studies, the bibliography also contains references to articles that provide qualitative analyses of victim impact statements in criminal trials and of participatory rights of victims in the justice process in general.
2003-03-03T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/clsops_papers/6
https://scholarship.law.cornell.edu/context/clsops_papers/article/1005/viewcontent/auto_convert.pdf
Cornell Law Faculty Working Papers
Scholarship@Cornell Law: A Digital Repository
Criminal Law and Procedure
Legal Research and Bibliography
Criminal Law
Legal Writing and Research
oai:scholarship.law.cornell.edu:ealccs_plg-1001
2003-04-30T14:30:07Z
publication:ealcc
publication:conf_lec_work
publication:ealccs_plg
Pragmatist and Non-pragmatist Knowledge Practices in American Law
Valverde, Mariana
For anyone interested in documenting and analyzing knowledge practices, legal arenas prove to be fruitful sites, for at least two reasons. 1) First, questions of evidence and of authority are often explicitly contested, with the contestations often forming part of a court’s public record and/or going on in the public setting of the courtroom. Thus, unlike science studies scholars, who must gain access to social interactions that are not mentioned in scientific papers and that do not take place in public view, legal studies scholars have vast amounts of material – affidavits, trial transcripts, etc– that can readily be analyzed, and we have automatic access to at least some of the struggles about what counts as evidence and who counts as an authority waged in legal settings.
Secondly, legal arenas, particularly in common-law jurisdictions, are characterized by the simultaneous coexistence of radically heterogeneous and uncoordinated epistemologies. That civil lawsuits are adjudicated using a different standard of proof than criminal cases is known to most people, and certainly to every law student. But it is less well known that this is only one of a large number of epistemological heterogeneities that can be documented even staying in a single courtroom or confining oneself to one type of case. Those of us who are beginning to borrow and adapt some tools from Science and Technology Studies for use in analyzing legal processes may be able to return the favour by highlighting the jurisdictional and other devices that allow ‘law’ to retain its legitimacy despite the fact that conflicting modes of reasoning and very different standards of proof coexist happily, in a state that a scientific mind would describe as epistemological anarchy. This is not to say that other fields are necessarily unified or somehow coordinated; but it is my suspicion that legal arenas exhibit a particularly cavalier stance toward existing epistemological heterogeneity.
2003-03-28T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/ealccs_plg/1
https://scholarship.law.cornell.edu/context/ealccs_plg/article/1001/viewcontent/auto_convert.pdf
Pragmatism, Law and Governmentality
Scholarship@Cornell Law: A Digital Repository
Jurisprudence
Jurisprudence
oai:scholarship.law.cornell.edu:ealccs_plg-1003
2003-05-05T14:55:04Z
publication:ealcc
publication:conf_lec_work
publication:ealccs_plg
Styles of Pragmatism, Social Science and the Law
Burns, Robert P.
I have long held as an ideal the words of one of foremost American interpreters of John Dewey's philosophy: "An adequate, comprehensive political and social theory must be at once empirical, interpretive, and critical." How these styles of social inquiry, whose practitioners often seem at war, might cohere has never been completely clear. This essay is an attempt to work out in a very limited context some of the issues surrounding these relationships. In particular, I want to explore the relationship between the interpretive style, which I take to be central, and the other two. The focus of these remarks is my recent attempt to give a reasonably adequate account of an important institution, the American trial.
Is it possible to give the best interpretation of a social institution without an Archimedian point? I think the example of the trial and the continuity in the forms of interpretation between trials and accounts of trials suggests that there is.
2003-03-28T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/ealccs_plg/3
https://scholarship.law.cornell.edu/context/ealccs_plg/article/1003/viewcontent/auto_convert.pdf
Pragmatism, Law and Governmentality
Scholarship@Cornell Law: A Digital Repository
pragmatism
social science
trials
Jurisprudence
Jurisprudence
oai:scholarship.law.cornell.edu:ealccs_plg-1002
2003-05-05T14:25:04Z
publication:ealcc
publication:conf_lec_work
publication:ealccs_plg
Invisible Foundations: Science, Democracy, and Faith among the Pragmatists
Deneen, Patrick J.
Today science is almost universally regarded as an ally of democracy. Religion - once viewed by Tocqueville as the great support of democratic mores, in contrast to the materialism of then-contemporary atheists who threatened to undermine democratic commitments - is now viewed by many as antithetical to the openness and provisionality that marks both science and democracy. As framed by the neo-pragmatist Richard Rorty, religion is a "conversation-stopper," the very definition of anti-democratic, anti-scientific anti-pragmatism.
Whereas a pragmatic form of faith, notably "democratic faith," secures belief in an ever improving future, the "politics of skepticism" is reinforced by the initial embrace of faith in redemption beyond the wholly human or political that is in turn accompanied by insistence upon humility and circumspection. Democracy may, in the end, require faith in some form, but it remains contestable whether the "democratic faith" of pragmatism is finally the form of faith that best serves the cause and prospects of democracy.
2003-03-28T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/ealccs_plg/2
https://scholarship.law.cornell.edu/context/ealccs_plg/article/1002/viewcontent/auto_convert.pdf
Pragmatism, Law and Governmentality
Scholarship@Cornell Law: A Digital Repository
pragmatism
Politics
Religion
Science and Technology
Law and Politics
Religion
Science and Technology Law
oai:scholarship.law.cornell.edu:ealccs_plg-1005
2003-06-17T16:25:04Z
publication:ealcc
publication:conf_lec_work
publication:ealccs_plg
Palestinian Martyrdom Revisited: Critical Reflections on Topical Cultures of Explanation
Jean-Klein, Iris
This paper ponders the tide of public discourse which arose in response to the Palestinian martyrdom bombings in the recent Al Aqusa Intifada, in which social scientists and anthropologists have been "active" participants, and where the reasons and causes of this phenomenon have been the centre of debate. The paper questions the value of this analytical posture by placing it next to a habit of everyday discursive practice the author of the paper became aware of during fieldwork with politically active in the First Intifada. People (esp. women) would entertain an instrumentalist explanation of actions or qualities of which they showed themselves in other moments, and in other ways, proud (e.g., mothers, of how clever and courageous their children are in confrontations with Israeli soldiers; young couples of taking up residence with the groom's father's family or in the vicinity) but which they also understood to cause aesthetic offence and moral outrage internationally. The paper asks what posture the anthropologists is to take when people we work with work with this 'global' and critical view on their practices and deploy an instrumentalist perspective as 'ideology' with which they cloak causes and aesthetics they believe in but which offend, for example an attitude that violent death (political 'suicide' and 'murder') is not inevitably anti-aesthetic but meaningful in an obvious way.
2002-12-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/ealccs_plg/5
https://scholarship.law.cornell.edu/context/ealccs_plg/article/1005/viewcontent/auto_convert.pdf
https://scholarship.law.cornell.edu/context/ealccs_plg/article/1005/filename/0/type/additional/viewcontent/Jean_Klein_notes.doc
Pragmatism, Law and Governmentality
Scholarship@Cornell Law: A Digital Repository
Instrumentalism
Anthropology
Palestine
Intifada
oai:scholarship.law.cornell.edu:clsops_papers-1010
2003-09-23T19:55:05Z
publication:clsops_papers
publication:facsch
The 'Race to the Bottom' Returns: China’s Challenge to the International Labor Movement
Diamond, Stephen F.
China is now, and increasingly, an integral player in the global economy and in international relations. Economic and political restructuring in China today is affecting the lives of millions, yet only a small number of top bureaucrats and wealthy regime-backed entrepreneurs are making the basic decisions about the outcome of this process. This bureaucratic and entrepreneurial class resists fiercely any serious attempt to build independent and democratic institutions such as trade unions.
This article will consider four areas of concern. First, the structural changes underway in the Chinese economy are creating both domestic and international imbalances that are exacerbating inequalities among Chinese workers and creating new inequities in the global labor market. Second, the Chinese regime’s approach to labor rights remains rigidly authoritarian and so is triggering ever more dramatic confrontations between workers and the Chinese state, despite the regime’s nominal commitment to “socialism.” Third, these developments are being reinforced by a pathological evolution in the principles that govern key international institutions such as the WTO and the ILO. A conflict has emerged within the international legal arena between the founding principles of these institutions and their current approach to labor and human rights issues. Fourth, within the international labor movement itself a small current is emerging which views an accommodation with the Chinese regime a feasible alternative to the long-standing goal of the international labor movement of independent and free trade unionism in China. This approach threatens the credibility of the labor movement’s opposition to the most damaging aspects of the globalization process, a major commitment of the international labor movement since the “battle of Seattle” that took place at the failed ministerial conference of the WTO in November 1999. An alternative view must be articulated if Chinese and western workers are to join together to reverse the “race to the bottom.”
2003-09-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/clsops_papers/10
https://scholarship.law.cornell.edu/context/clsops_papers/article/1010/viewcontent/auto_convert.pdf
Cornell Law Faculty Working Papers
Scholarship@Cornell Law: A Digital Repository
China
Labor unions
Labor Law
Labor and Employment Law
oai:scholarship.law.cornell.edu:clsops_papers-1012
2003-09-23T20:20:08Z
publication:clsops_papers
publication:facsch
The PetroChina Syndrome: Regulating Capital Markets in the Anti-Globalization Era
Diamond, Stephen F.
This article argues that the process of globalization has generated a legitimation deficit that can be the source of wasteful, even destructive, social and political conflict. I stylize this outcome as "the PetroChina Syndrome," after a leading example of the kind of activity generated in response to globalization, the PetroChina Campaign, where a coalition of labor, human rights, environmental, anti-slavery and religious groups worked together to oppose the initial public offering of a major Chinese oil company led by Goldman Sachs. The article begins with a discussion of this important but largely unexplored dimension of the anti-globalization era triggered by the 1999 demonstrations in Seattle against the World Trade Organization. The Campaign and its impact are discussed in detail.
I then examine three possible arguments that shed some light on this development, including traditional securities law approaches, the broader political context and, finally, structural changes in corporate finance. These three arguments, I argue, are helpful but not sufficient. Recent work by the economist Massimo De Angelis on John Maynard Keynes and Milton Friedman helps us shape an alternative explanation rooted in understanding changes in the institutional mechanisms of the global labor and capital markets. The displacement of the trade union and collective bargaining by globalization has pushed organized labor and other groups to look to political intervention in the capital markets as an alternative means to establish legitimacy. This intervention should be encouraged to develop new institutions to respond to the growing legitimation crisis of global capitalism.
2003-09-23T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/clsops_papers/11
https://scholarship.law.cornell.edu/context/clsops_papers/article/1012/viewcontent/auto_convert.pdf
Cornell Law Faculty Working Papers
Scholarship@Cornell Law: A Digital Repository
Globalization
Banking and Finance
Securities Law
Banking and Finance Law
Securities Law
oai:scholarship.law.cornell.edu:clsops_papers-1015
2004-01-28T19:06:03Z
publication:clsops_papers
publication:facsch
Was Arthur Andersen Different?: An Empirical Examination of Major Accounting Firms' Audits of Large Clients
Eisenberg, Theodore
Macey, Jonathan R.
Enron and other corporate financial scandals focused attention on the accounting industry in general and on Arthur Andersen in particular. Part of the policy response to Enron, the criminal prosecution of Andersen, eliminated one of the few major audit firms capable of auditing many large, public corporations. This article explores whether Andersen’s performance, as measured by frequency of financial restatements, measurably differed from that of other large auditors. Financial restatements trigger significant negative market reactions and their frequency can be viewed as a measure of accounting performance. We analyze the financial restatement activity of approximately 1,000 large, public firms from 1997 through 2001. After controlling for client size, region, time, and industry, we find no evidence that Andersen's performance significantly differed from that of other large accounting firms.
2003-11-13T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/clsops_papers/14
https://scholarship.law.cornell.edu/context/clsops_papers/article/1015/viewcontent/eisenberg_macey.pdf
Cornell Law Faculty Working Papers
Scholarship@Cornell Law: A Digital Repository
Accounting
Accounting
oai:scholarship.law.cornell.edu:biss_papers-1002
2004-03-16T19:25:04Z
publication:biss_papers
publication:conf_lec_work
Legalization of Prostitution in Thailand: A Challenge to Feminism and Societal Conscience
Somswasdi, Virada
Thai society and the feminist movement have been bombarded with the (ir)rationality of economic greed, social ignorance and a patriarchal frame of thinking on the legalization of prostitution. Feminist ideology and societal conscience are hence being tested all over again. The issue of prostitution has been reduced to an issue of taxation for state income generation. Basically, the issue of legalizing prostitution is twofold, i.e., the decriminalization of prostituted women and the legalization of prostitution or decriminalization of the sex industry. The first of these points perceives that the prostituted women are victimized, exploited and violated, and thus should not be punished; the second is about an acceptance of prostitution as work.
The efforts of all concerned should instead be to urgently focus on how to suppress prostitution, embrace gender equality, defend women's human rights and support prostituted women to enable them to leave prostitution and to be provided with dignified and sustainable work.
2004-03-09T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/biss_papers/2
https://scholarship.law.cornell.edu/context/biss_papers/article/1002/viewcontent/auto_convert.pdf
Cornell Law School Berger International Speaker Papers
Scholarship@Cornell Law: A Digital Repository
Prostitution
Feminism
Thailand
Women
Law and Gender
oai:scholarship.law.cornell.edu:ealccs_pld-1008
2004-03-31T19:15:03Z
publication:ealcc
publication:conf_lec_work
publication:ealccs_pld
In the Beginning was the Law… an Intellectual Odyssey
McAuslan, Patrick
Is there such a distinctive phenomenon in practice as "law and development?" Isn’t all law directed towards some kind of development in the sense that new law – judicial decisions, legislation, administrative directives – change the existing law and so is a development from that existing law and in changing the existing law, change, in howsoever slight a degree, the economy and society of which the law is a part. Law and Development did not start in the 1960s when American legal scholars discovered the developing world nor did it end in the 1970s when, starved of funds to pursue their endeavours, many of those same scholars declared that law and development was dead . If we are to write about the future of law and development we must first be clear about its scope, its past and its present. We must first answer the questions: What is it? What are we? Where are we? How did we get here? Only then can we answer the question: Where should we go?
Support for legal education is the one L&D input that brings together the external and the internal perspectives of L&D and the one such input that is highly unlikely to fail: in every society there are some lawyers who are concerned with justice, with freedoms and with advancing the rule of law. If it does nothing else as a community, the L&D community should make it its business to argue the case for support for legal education in the South and especially in ‘failed states’ so as to develop as rapidly as possible that critical mass of national legal skills and knowledge that is the only sure way to build up a national legal culture and so in turn create the undergirding for a legitimate, effective and just national legal system.
2004-03-16T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/ealccs_pld/2
https://scholarship.law.cornell.edu/context/ealccs_pld/article/1008/viewcontent/auto_convert.pdf
The Practice of Law and Development: Socio-Legal Approaches
Scholarship@Cornell Law: A Digital Repository
Development
Law and Society
Legal Education
Law and Society
Legal Education
oai:scholarship.law.cornell.edu:lps_lsapr-1001
2004-04-08T21:05:04Z
publication:lps_lsapr
publication:conf_lec_work
Overview of Legal Systems in the Asia-Pacific Region: India
Dayanand, Navoneel
This article provides a general description of the legal system of India. It further discusses aspects of legal education and legal practice in that country.
2004-04-10T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_lsapr/1
https://scholarship.law.cornell.edu/context/lps_lsapr/article/1001/viewcontent/auto_convert.pdf
Overview of Legal Systems in the Asia-Pacific Region (2004)
Scholarship@Cornell Law: A Digital Repository
Legal Systems
Jurisprudence
Legal Education
Legal History
Politics
Jurisprudence
Law and Politics
Legal Education
Legal History
oai:scholarship.law.cornell.edu:lps_lsapr-1003
2004-04-09T16:50:04Z
publication:lps_lsapr
publication:conf_lec_work
Overview of Legal Systems in the Asia-Pacific Region: Singapore
Ho, Calvin WL
This article provides a general description of the legal system of Singapore. It further discusses aspects of legal education and legal practice in that country.
2004-04-10T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_lsapr/3
https://scholarship.law.cornell.edu/context/lps_lsapr/article/1003/viewcontent/auto_convert.pdf
Overview of Legal Systems in the Asia-Pacific Region (2004)
Scholarship@Cornell Law: A Digital Repository
Legal Systems
Legal Education
Legal History
Legal Profession
Legal Education
Legal Ethics and Professional Responsibility
Legal History
oai:scholarship.law.cornell.edu:lps_lsapr-1004
2004-04-09T12:30:03Z
publication:lps_lsapr
publication:conf_lec_work
Overview of Legal Systems in the Asia-Pacific Region: Thailand
Triamanuruck, Ngamnet
Phongpala, Sansanee
Chaiyasuta, Sirikanang
This article provides a general description of the legal system of Thailand. It further discusses aspects of legal education and legal practice in that country.
2004-04-10T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_lsapr/4
https://scholarship.law.cornell.edu/context/lps_lsapr/article/1004/viewcontent/auto_convert.pdf
Overview of Legal Systems in the Asia-Pacific Region (2004)
Scholarship@Cornell Law: A Digital Repository
Legal Systems
Legal Education
Legal History
Legal Profession
Legal Education
Legal Ethics and Professional Responsibility
Legal History
oai:scholarship.law.cornell.edu:lps_lsapr-1005
2004-04-09T12:40:03Z
publication:lps_lsapr
publication:conf_lec_work
Overview of Legal Systems in the Asia-Pacific Region: People's Republic of China
Huo, Zengguang (Bill)
Shi, Yuhua
This article provides a general description of the legal system of the People's Republic of China. It further discusses aspects of legal education and legal practice in that country.
2004-04-10T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_lsapr/5
https://scholarship.law.cornell.edu/context/lps_lsapr/article/1005/viewcontent/auto_convert.pdf
Overview of Legal Systems in the Asia-Pacific Region (2004)
Scholarship@Cornell Law: A Digital Repository
Legal Systems
Legal Education
Legal History
Legal Profession
Legal Education
Legal Ethics and Professional Responsibility
Legal History
oai:scholarship.law.cornell.edu:lps_clacp-1000
2004-04-07T14:15:02Z
publication:conf_lec_work
publication:lps_clacp
Private parties and WTO Dispute Settlement System
Alemanno, Alberto
This paper examines the (non) role that private business operators play in the implementation of WTO Dispute Settlement Reports. More precisely, by analysing the legal status of these decisions in national and regional law, it looks at what individuals are entitled to obtain when a WTO Member ignores the results of a Dispute Settlement Body’s proceedings. As private business operators bear most of the economic costs of non-compliance, there is an increasing pressure for a more direct involvement of these parties in the Dispute Settlement System mechanims. The challenge is therefore to find a way to accommodate their interests within the current settlement system, without reducing the discretion WTO Members enjoy in the implementation of the reports. An answer to this problem is even more needed as uncertainties surrounding the results of the WTO dispute settlement procedure will be exacerbated as soon as non-violation cases expand into the newly-emerging areas, such as investments and competition policies.
The recent attempt made by a French company to recover damages incurred as result of the EC non-compliance with the Hormones decision before the European Courts (CFI/ECJ) is provided, throughout the paper, as an example of private parties’ involvement in the implementation phase. In this paper, I argue that private parties should be allowed to invoke settlement disputes decisions before the courts of the losing WTO Member to seek compensation for the damages incurred after the expiration of the given reasonable period of time to comply with the report. After reviewing most of the underlying arguments for and against this solution, I will demonstrate that looking at the status of DSB’s reports exclusively through the lens of direct effect might be misleading. I will conclude by arguing that granting the right of individuals to invoke a DSB’s ruling could improve the relationship that private business operators have with the multilateral trading by striking a more fair balance between the interests of all the WTO relevant actors.
2004-04-03T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_clacp/1
https://scholarship.law.cornell.edu/context/lps_clacp/article/1000/viewcontent/auto_convert.pdf
Cornell Law School Inter-University Graduate Student Conference Papers
Scholarship@Cornell Law: A Digital Repository
World Trade Organization
Dispute Resolution
Trade Regulation
Antitrust and Trade Regulation
Dispute Resolution and Arbitration
oai:scholarship.law.cornell.edu:lps_lsapr-1002
2004-04-09T12:15:03Z
publication:lps_lsapr
publication:conf_lec_work
Overview of Legal Systems in the Asia-Pacific Region: Indonesia
Iskandar, Yosea
This article provides a general description of the legal system of Indonesia. It further discusses aspects of legal education and legal practice in that country.
2004-04-10T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_lsapr/2
https://scholarship.law.cornell.edu/context/lps_lsapr/article/1002/viewcontent/auto_convert.pdf
Overview of Legal Systems in the Asia-Pacific Region (2004)
Scholarship@Cornell Law: A Digital Repository
Legal Systems
Legal Education
Legal History
Legal Profession
Legal Education
Legal Ethics and Professional Responsibility
Legal History
oai:scholarship.law.cornell.edu:lps_lsapr-1006
2004-04-09T12:50:04Z
publication:lps_lsapr
publication:conf_lec_work
Overview of Legal Systems in the Asia-Pacific Region: South Korea
Jin, Oh Seung
This article provides a general description of the legal system of South Korea. It further discusses aspects of legal education and legal practice in that country.
2004-04-10T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_lsapr/6
https://scholarship.law.cornell.edu/context/lps_lsapr/article/1006/viewcontent/auto_convert.pdf
Overview of Legal Systems in the Asia-Pacific Region (2004)
Scholarship@Cornell Law: A Digital Repository
Legal Systems
South Korea
Legal Education
Legal History
Legal Profession
Legal Education
Legal Ethics and Professional Responsibility
Legal History
oai:scholarship.law.cornell.edu:lps_lsapr-1007
2004-04-09T13:10:03Z
publication:lps_lsapr
publication:conf_lec_work
Overview of Legal Systems in the Asia-Pacific Region: Japan
Gono, Junko
Hibino, Mitsutaka
Hinokawa, Koh
Kamiya, Sonosuke
Maki, Hirofumi
Nishiyama, Shigeki
Osajima, Hirotoshi
Oshima, Masahiro
Yamauchi, Yurika
This article provides a general description of the legal system of Japan. It further discusses aspects of legal education and legal practice in that country.
2004-04-10T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_lsapr/7
https://scholarship.law.cornell.edu/context/lps_lsapr/article/1007/viewcontent/auto_convert.pdf
Overview of Legal Systems in the Asia-Pacific Region (2004)
Scholarship@Cornell Law: A Digital Repository
Legal Systems
Japan
Legal Education
Legal History
Legal Profession
Legal Education
Legal Ethics and Professional Responsibility
Legal History
oai:scholarship.law.cornell.edu:lps_lsapr-1008
2004-04-09T19:45:02Z
publication:lps_lsapr
publication:conf_lec_work
Overview of Legal Systems in the Asia-Pacific Region: Republic of China, Taiwan
Wen, Peggy (Pei Yi)
This article provides a general description of the legal system of Taiwan. It further discusses aspects of legal education and legal practice in that country.
2004-04-10T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_lsapr/8
https://scholarship.law.cornell.edu/context/lps_lsapr/article/1008/viewcontent/auto_convert.pdf
Overview of Legal Systems in the Asia-Pacific Region (2004)
Scholarship@Cornell Law: A Digital Repository
Legal Systems
Taiwan
Legal Education
Legal History
Legal Profession
Legal Education
Legal Ethics and Professional Responsibility
Legal History
oai:scholarship.law.cornell.edu:lps_clacp-1009
2004-04-19T17:30:04Z
publication:conf_lec_work
publication:lps_clacp
Human Rights Treaty Drafting through the Lens of Mental Disability: the Proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities
Dhir, Aaron A.
In this piece I explore whether, if established, the proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities will be an effective way to limit abuses of the rights of persons diagnosed with mental disabilities. In Section I, I discuss the failure of international human rights law to effectively address these abuses to date. In Section II, I consider the debate surrounding the need for a disability-specific Convention. In Section III, I argue that in order for the proposed Convention to be effective, and not simply a hollow mechanism, it must reject the traditional medical model of disability. Instead, the Convention should reflect a rights-based paradigm premised on a reformulation of "disability" as a social construct. I will argue that with respect to mental disability the medical model still prevails and, with reference to existing human rights instruments, I advance the position that there must be mindfulness of this model’s intrusion into the Convention drafting process. In Section IV, I make specific drafting recommendations that I hope will assist the proposed Convention to realize its full potential. In particular, I discuss some of the principal issues facing the drafters, including the type of treaty to be adopted (one based on non-discrimination or one which adopts a comprehensive approach) and the type of monitoring mechanism which might be established to satisfy both the desire to have a strong follow-up and the concern to avoid counter-productive repetition of existing mechanisms.
My analysis is informed by my experience as a member of an NGO Delegation to the recent United Nations Working Group Meeting respecting the proposed Convention. Reference is made to psychological science material, particularly with respect to the efficacy of antipsychotic medications.
2004-04-03T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_clacp/2
https://scholarship.law.cornell.edu/context/lps_clacp/article/1009/viewcontent/auto_convert.pdf
Cornell Law School Inter-University Graduate Student Conference Papers
Scholarship@Cornell Law: A Digital Repository
Persons with Disabilities
Civil Rights
Health Law and Policy
Human Rights Law
International Law
Civil Rights and Discrimination
Health Law and Policy
Human Rights Law
International Law
oai:scholarship.law.cornell.edu:lps_papers-1011
2004-05-19T15:00:05Z
publication:lps_papers
publication:stusch
publication:stu_papers
Intellectual Property Protection in Philippine Agriculture: a Developmental Perspective
Belaro, Salvador B., Jr.
This paper is premised on the debate on whether intellectual property protection furthers economic development in developing countries. One view is that more is better, arguing that intellectual property rights trigger research and technological advancement. The other view is that more means not better, but worse. Advocates of this view claim that developing countries, being "second comers" in a world where developed countries got a head start in development are confronted with rules imposed by the "first comers", intellectual property rules included, which are of course, designed by the latter to serve their interests
This note suggests two general approaches so that intellectual property protection could best serve Philippine developmental objectives. One is reducing compliance with the TRIPS to the barest minimum possible. Another is the formulation and implementation of laws and policies that would strengthen farmers' rights.
2004-05-19T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/1
https://scholarship.law.cornell.edu/context/lps_papers/article/1011/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Philippines
Agriculture Law
Intellectual Property Law
Agriculture Law
Intellectual Property Law
oai:scholarship.law.cornell.edu:lps_clacp-1012
2004-05-19T17:20:05Z
publication:conf_lec_work
publication:lps_clacp
Iran: Civil Society versus Judiciary, a Struggle for Human Rights
Van Engeland-Nourai, Anisseh
Iran faces many different challenges, both international and internal when it comes to human rights. Since the beginning of the improvements in 1997, the civil society voices its will for changes. It has grown stronger and today the Iranian civil society attempts to reform the country’s rough human rights. Their efforts are grounded in social actions. Reforms are consequently no longer coming from the top to the bottom but from the bottom to the top. Conservatives disagree with those threatening changes and respond through a variety of forms. One of the methods used are legal means. The Iranian judiciary represses all innovations initiated by the civil society. The challenge for the civil society resides in its survival, the reconciliation between human rights and Islam and the modification of the Iranian legal system as to respect international human rights standards.
2004-04-03T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_clacp/3
https://scholarship.law.cornell.edu/context/lps_clacp/article/1012/viewcontent/auto_convert.pdf
Cornell Law School Inter-University Graduate Student Conference Papers
Scholarship@Cornell Law: A Digital Repository
Iran
Human Rights Law
Human Rights Law
oai:scholarship.law.cornell.edu:lps_papers-1013
2004-05-20T15:20:04Z
publication:lps_papers
publication:stusch
publication:stu_papers
Untaxing Taxes: An Attempt to Compare Philippine and US Laws on Tax-Free Corporate Reorganizations
Belaro, Salvador B., Jr.
In comparing tax-free corporate reorganizations between Philippine and US law, the author wishes to learn how the US legal system would approach similar tax situations in the Philippines so he could apply it in the practice of law. Labyrinthine as they may be, US tax rules are so well-developed that they are excellent subjects for a comparative study. This paper validates the fact that Philippine and US tax laws on tax-free corporate exchanges have a lot in common. It also shows that in a lot of areas where Philippine law is silent, US tax laws have already devoted extensive treatment to such areas (i.e. spin-offs, triangular reorganizations, etc.). With respect to these areas, the issue is whether the principles developed therein are applicable to the Philippines.
In his book "De l'esprit des lois" ("Spirit of the Laws") , Montesquieu, the famous French political thinker, postulated that what makes a law effective is its "spirit," referring to the correct fit thereof to the conditions of the locality in which it would be applied. Communing with such spirit is thus seen as the goal of any law. Viewed in this light, determining the spirit of the aforementioned areas of law is the next logical issue. That could be very taxing but is definitely challenging.
2004-05-20T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/2
https://scholarship.law.cornell.edu/context/lps_papers/article/1013/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Philippines
Tax-Free Corporate Reorganizations
Corporations
Taxation-Federal Income
Business Organizations Law
Taxation-Federal
oai:scholarship.law.cornell.edu:lps_papers-1015
2004-06-08T20:00:04Z
publication:lps_papers
publication:stusch
publication:stu_papers
Post-Enron: U.S. and German Corporate Governance
Suchan, Stefan W.
Only five years after Henry Hansmann and Reinier Kraakmann announced "the End of History of Corporate Law" – borrowing the words of Francis Fukuyama–, this observation seems at least questionable. Following two major failures of the “American Model” with the bankruptcy of Enron and WorldCom, the question of the "right" Corporate Governance regime is again under discussion.
Legislators around the globe assume that further development of Corporate Governance is necessary. There is consent for the need of improvement, but no clear answer on how to improve. A first step to solving the arising problems might be to evaluate the reasons for collapse of the Corporate Governance regime in place. In the U.S., the fall of Enron has been understood primarily as a failure of the gatekeepers, meaning the intermediaries who provide verification and certification services to the investors (e.g. securities analysts and especially the auditors). U.S. legislation in the aftermaths of Enron reacted correspondingly: the Sarbanes-Oxley Act further regulated the accounting profession by implementing a new administrative agency, the Public Company Accounting Oversight Board (PCAOB), to set new standards with respect to the auditor’s independence, especially with respect to compensation via consulting services provided for audit clients. This first step of legislation has been criticized for dealing with only part of the relevant concerns. Questions relating to auditors have been largely left open. Instead of addressing the issue of rotation of audit firms directly, the Sarbanes-Oxley Act orders a study on this topic. Other problems connected to compensation of the persons involved have been ignored. Foremost to mention is the management compensation with equity instruments. Remuneration with stock options rewards risk oriented management decision without penalizing for failure. Sarbanes-Oxley Act does not respond to this issue.
How do other jurisdictions cope with these problems? It might be worth examining the approach of the German labor- or stakeholder oriented model of corporate governance. Under German law the auditor is not only understood as a gatekeeper, assuring the interest of the investing public, but also acts as assistant for the supervisory board in its internal control of the management. This complementary role does not necessarily trigger different approaches with respect to Corporate Governance – under the German concept auditor’s independence is the key as well, as shown by new legislation after Enron. Given similar approaches to similar problems in both jurisdictions, a convergence to the one "right" Corporate Governance model might take place. The paper will discuss the question of managerial and gatekeeper compensation, focusing on compensation of auditors. Not only remuneration for consulting services, but also compensation schemes within the accounting firms might be an issue. Mandatory transparency reports of audit firms, proposed by the European Commission, could be a step in this direction. The paper will discuss and evaluate these topics.
2004-06-07T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/4
https://scholarship.law.cornell.edu/context/lps_papers/article/1015/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Sarbanes-Oxley Act
Germany
Comparative Law
Corporations
Business Organizations Law
Comparative and Foreign Law
oai:scholarship.law.cornell.edu:lps_papers-1014
2004-06-08T17:20:10Z
publication:lps_papers
publication:stusch
publication:stu_papers
Taxation of Spin-off – U.S. and German Corporate Tax Law
Suchan, Stefan W.
Corporate law provides for a transaction commonly referred to as “spin-off”. The corporate enterprise is divided in (at least) two corporations. The stock of a controlled subsidiary will be distributed pro rata by a parent corporation to its shareholders which end up owning a brother/sister pair of corporate enterprises.
The Internal Revenue Code (IRC) in § 355 provides special rules for the distribution of stock and securities of a controlled corporation. The transaction is known as a “D reorganization”, if such a distribution follows the transfer by a corporation of all or a part of its assets to another corporation, § 368(a)(D) IRC. If the requirements of these sections are met, the Code allows tax free treatment on corporate as well as shareholder level.
The rules of § 355 IRC are rather complicated and give rise to an ongoing discussion on how to amend the Code to make the law less complex. The basic idea behind these provisions is to prevent tax avoidance schemes. In the context of § 355 IRC two principal concerns might be the driving forces: spin-offs could be used (1) to convert ordinary dividend income at the shareholder level into capital gain, and (2) to transfer appreciated property out of the corporation without triggering tax on the corporate level (“circumvent the purposes of General Utilities repeal”). Whether the current rules on the background of these concerns are convincing or amendments should be suggested will be discussed in this paper.
It might be helpful to compare the current U.S. law to the German tax code. German corporate law provides for a similar transaction referred to as “Abspaltung”. This corporate transaction allows the transfer of part of the assets of a corporation to a new or existing other corporation in exchange for stock in this corporation transferred directly to the shareholders of the transferor corporation. From a corporate perspective the results are the same as in case of a “D reorganization” within § 368(a)(D) IRC. § 15 German Transformation Tax Act (“Umwandlungssteuergesetz” – UmwStG) provides for tax free treatment on corporate and shareholder level, if its requirements are met. Although the requirements are similar to those of § 355 IRC they differ in part. Particularly § 15 (3) UmwStG, which contains a provision disallowing the transfer of stock of corporations taking part in the Abspaltung to third parties, might present new arguments to the discussion whether the current rules of § 355 IRC, especially the “device” rule and § 355(d), and (e) IRC, should be retained or amendments seem necessary.
The paper will describe the U.S. and German tax provisions. The advantages and disadvantages of the national rules will be discussed.
2004-06-08T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/3
https://scholarship.law.cornell.edu/context/lps_papers/article/1014/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Germany
Comparative Law
Corporations
Taxation-Transnational
Business Organizations Law
Comparative and Foreign Law
Taxation-Transnational
oai:scholarship.law.cornell.edu:clsops_papers-1016
2004-08-23T13:03:58Z
publication:clsops_papers
publication:facsch
Introduction to comparative legal cultures: the civil law and the common law on evidence and judgment (oral presentation of the book by Antoine Garapon & Ioannis Papadopoulos, Juger en Amerique et en France : Culture judiciaire française et common law
Papadopoulos, Ioannis
This book is the fruit of a basic idea, namely that comparative law is meaningless if it is regarded as the sole study of juxtaposed legal systems, regardless of their cultural dimension. The book’s main aim is to identify and analyze the basic cultural differences between the two great legal traditions of the West, the Continental and the Anglo-American one, through a thorough examination of the trial, and of judicial institutions more widely, as these are organized in France and the United States. For that purpose, after an introduction to the concept of legal culture and the basic notions of the common law legal tradition, we have written a series of chapters: access to justice, the trial, evidence, the judge, the jury, judgment, litigation, and sentencing.
2004-08-12T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/clsops_papers/15
https://scholarship.law.cornell.edu/context/clsops_papers/article/1016/viewcontent/auto_convert.pdf
Cornell Law Faculty Working Papers
Scholarship@Cornell Law: A Digital Repository
Common Law
France
Civil Law
Comparative Law
Civil Law
Comparative and Foreign Law
oai:scholarship.law.cornell.edu:clsops_papers-1017
2004-08-20T12:40:05Z
publication:clsops_papers
publication:facsch
The Jurisprudence of Enron: Professionalism as Interpretation
Wendel, W. Bradley
Jurisprudence can seem like a formidably esoteric field, with conceptual arguments carried on at a high level of abstraction, seemingly remote from the concerns of practicing lawyers. In fact, it is impossible to ignore jurisprudence when thinking about the role of lawyers in the wave of financial accounting scandals exemplified by the collapse of Enron. The Enron case is not about ethics so much as it is about the interpretation and application of a complex scheme of legal norms to innovative business transactions. The lawyers believed they were taking a legitimate, albeit aggressive interpretive attitude toward the law, by structuring the transaction to avoid as many legal restrictions as possible. It must have come as a surprise to these lawyers when they were criticized after Enron's collapse precisely for taking an aggressive stance toward legal and financial accounting standards. Many commentators criticized lawyers for Enron and other companies such as WorldCom and Global Crossing for neglecting their responsibilities to serve as gatekeepers and for facilitating their clients' evasion of law. The lawyers' typical response is that they were only doing what lawyers do: bringing their clients' actions into conformity with the law, pushing the boundaries of the law where it would be helpful to clients, and refusing to regard themselves as quasi-regulators of transactions.
This article resolves this debate using the tools of analytic jurisprudence. The lawyers who defend creative, aggressive advice are essentially arguing for a Holmesian bad man interpretive attitude toward the law, in which the content of the law is identified by predicting when legal officials will impose sanctions on an individual. There are many problems with this approach, but one obvious one is that it reduces the law's constraint practically to a nullity, at least where the regulated actors are highly sophisticated companies with the resources to employ battalions of lawyers to create increasingly complex transactional structures. The Holmesian bad man stance, however, relies on a dubious account of the authority of law, one that prioritizes individual autonomy over all other values that bear on practical reasoning. But autonomy is not the only thing people value and, even if it were of paramount importance, there would still be conflicts between incompatible claims of liberty. The function of the law is to settle these first-order normative conflicts, and this settlement depends on the law having a relatively determinate, stable meaning. The function of law creates a second-order reason for lawyers to respect the settlement established by law and not to attempt to nullify it by creating elaborate structures to avoid penalties. Any interpretive strategy that undermines the capacity of law to resolve normative disagreement is ruled out by the second-order moral reasons that give the law legitimacy.
The argument for treating the law instrumentally relies, often tacitly, on a highly suspect characterization of the nature and content of law, one that limits legal norms only to texts. Texts are not self-interpreting, however, and can acquire stable, determinate meaning only as they are situated within an interpretive community. In jurisprudential terms, this is an argument about what Hart would call the rule of recognition. My claim is that the rule of recognition in the U.S. legal system incorporates the practices and conventions of interpretive communities as criteria for identifying law. Conventions regulate the exercise of interpretative judgment and impart stability and determinacy to legal norms that would otherwise be subject to manipulation by lawyers. This article gives a number of examples of this process at work, from simple hypotheticals to a detailed consideration of some of the transactions that played a role in the collapse of Enron. The jurisprudential claim is not limited to Enron-style transactions, but has general applicability across the entire domain of legal counseling and transactional practice.
2004-08-19T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/clsops_papers/16
https://scholarship.law.cornell.edu/context/clsops_papers/article/1017/viewcontent/auto_convert.pdf
Cornell Law Faculty Working Papers
Scholarship@Cornell Law: A Digital Repository
Enron
Jurisprudence
Jurisprudence
oai:scholarship.law.cornell.edu:biss_papers-1003
2004-10-08T18:50:03Z
publication:biss_papers
publication:conf_lec_work
Worldwide Influence of the French Civil Code of 1804, on the Occasion of its Bicentennial Celebration
Blanc-Jouvan, Xavier
The French Civil Code (still called the Code Napoleon) is now two hundred years old. Its bicentennial has been celebrated this year in many countries. The reason is that is Code has experienced an extraordinary expansion throughout the world during the XIXth and XXth centuries. But how influential is it today? A certain weakening of its positions is due to a number of factors : legal (the abundance of models now available) and cultural (the regression of the use of French as an international legal language as well as the declining attraction of our universities in the formation of foreign lawyers). Yet, even after the last two centuries have brought so many changes in society, it remains as a model in many countries, because of its qualities in form and in substance. In fact, it is not only a monument of the past. It still has a great capacity of influence. And the present search for a jus commune in Europe can give it a new chance on the international scene.
2004-09-27T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/biss_papers/3
https://scholarship.law.cornell.edu/context/biss_papers/article/1003/viewcontent/auto_convert.pdf
Cornell Law School Berger International Speaker Papers
Scholarship@Cornell Law: A Digital Repository
Code Napoleon
Civil Law
Civil Law
oai:scholarship.law.cornell.edu:lsrp_papers-1004
2009-12-07T20:14:59Z
publication:lsrp_papers
publication:facpub
publication:facsch
Love, Money, and Justice: Restitution Between Cohabitants
Sherwin, Emily
The principle of unjust enrichment is susceptible to varying interpretations, which reflect importantly different conceptions of how courts should decide cases and develop law. The consequences of different possible interpretations of the unjust enrichment principle are nicely illustrated by a group of cases involving restitution claims between former cohabitants. Claims of this kind are endorsed by the new Restatement (Third) of Restitution and Unjust Enrichment (now in preparation). In recognizing these claims, the Restatement adopts an “equitable” interpretation of unjust enrichment for this category of cases, one that licenses courts to disregard rules and engage in particularistic decision-making. This is surprising in light of the generally rule-oriented approach to restitution endorsed in the initial sections of the Restatement. It also carries with it a number of dangers, which are evident in the context of cohabitant claims.
2006-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/5
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1004/viewcontent/lsrp_papers5final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Unjust Enrichment
Restitution
oai:scholarship.law.cornell.edu:lsrp_papers-1000
2009-12-07T19:49:59Z
publication:lsrp_papers
publication:facpub
publication:facsch
How Employment Discrimination Plaintiffs Fare in Federal Court
Clermont, Kevin M.
Schwab, Stewart J
This article presents the full range of information that the Administrative Office’s data convey on federal employment discrimination litigation. From that information, the authors tell three stories about (1) bringing these claims, (2) their outcome in the district court, and (3) the effect of appeal. Each of these stories is a sad one for employment discrimination plaintiffs: relatively often, the numerous plaintiffs must pursue their claims all the way through trial, which is usually a jury trial; at both pretrial and trial these plaintiffs lose disproportionately often, in all the various types of employment discrimination cases; and employment discrimination litigants appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs.
2004-07-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/1
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1000/viewcontent/lsrp_papers1final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Employment discrimination litigation
Civil Rights
Labor Law
Civil Rights and Discrimination
Labor and Employment Law
oai:scholarship.law.cornell.edu:lsrp_papers-1002
2009-12-07T20:00:28Z
publication:lsrp_papers
publication:facpub
publication:facsch
Juror First Votes in Criminal Trials
Garvey, Stephen P.
Hannaford-Agor, Paula
Hans, Valerie P.
Mott, Nicole L.
Munsterman, G. Thomas
Wells, Martin T
Our analysis of the voting behavior of over 3,000 jurors in felony cases tried in Los Angeles, Maricopa County, the District of Columbia, and the Bronx reveals that only in D.C. does a juror's race appear to relate to how he or she votes. African-American jurors in D.C. appear more apt to vote not guilty on the jury's first ballot in cases involving minority defendants charged with drug offenses. We find no evidence, however, that this effect survives into the jury's final verdict.
2004-06-23T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/3
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1002/viewcontent/lsrp_papers3final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Jurors
Criminal trials
Race
Courts
Criminal Law
oai:scholarship.law.cornell.edu:lsrp_papers-1001
2009-11-30T21:45:58Z
publication:lsrp_papers
publication:facpub
publication:facsch
Litigated Learning and the Limits of Law
Heise, Michael R.
Brown’s legacy and what it says about the efficacy of litigation as a vehicle to achieve social change mean different things to different people. Although popular mythology emphasizes Brown’s critical role in securing equal educational opportunity, careful reflection reveals that the decision’s legacy is anything but clear. A narrow focus on school desegregation suggests Brown’s legacy is aptly characterized as one of unfulfilled promise. A broader focus that extends to include subsequent equal educational opportunity activity such as the school finance litigation movement, however, casts positive light on Brown’s legacy. More important than completing interpretations of Brown’s legacy is what the decision implies for current and future efforts to secure greater educational equity through litigation. In this Article, I argue that Brown’s legacy does not bode well for future litigation efforts seeking to enhance the equal educational opportunity doctrine, principally due to how the doctrine has evolved during the past fifty years. Even if one concludes that Brown succeeded in the school desegregation context, the equal educational opportunity doctrine has changed during the past fifty years in ways that make it less amenable to litigation. Unlike past efforts, emerging reform efforts focus more directly on student academic achievement rather than race or school funding. Academic achievement implicates teaching and learning activities—activities located deeper inside schools and classrooms and further from litigation’s reach. If past education reformers and litigants found it difficult to penetrate factors located outside schools (school demographic profiles and funding levels), litigation efforts seeking to influence student achievement will encounter even greater difficulty. Student academic achievement’s insulation from even successful litigation underscores its inherent complexity, the salience of non-legal components and, more generally, structural limitations of law and litigation as tools to achieve desired social change. If my central claims are correct, the more complicated litigation efforts of the future will require manifestly greater effort. And greater effort alone will not insure success.
2004-10-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/2
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1001/viewcontent/lsrp_papers2final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Education Law
Education Law
oai:scholarship.law.cornell.edu:lsrp_papers-1003
2004-10-12T18:38:55Z
publication:lsrp_papers
publication:facpub
publication:facsch
Criminal Case Complexity: An Empirical Perspective
Heise, Michael
Criminal case complexity persists as a central tenet in many academic and public critiques of our legal system even though little is known about two critical questions. One question is whether key actors (juries, attorneys, and judges) view case complexity similarly. In other words, do juries, attorneys, and judges agree on whether a case is complex? A second question involves the determinants of case complexity for each group. That is, what factors make a case more (or less) complex for juries, attorneys, and judges. This article explores both questions from an empirical perspective with the benefit of recent data from four jurisdictions. The data are important because, within the context of criminal cases, they permit analyses of agreement levels among the three key actors. Results suggest that the three sets of actors possess slightly different views on whether cases are complex. Judges reported the lowest levels of case complexity; jurors the highest. Moreover, important variation exists in terms of what made cases complex for each group. The results implicate legal reform efforts. No clear consensus exists among the critical actors on complexity perceptions. Many of the variables that influence case complexity fall outside of reformers’ reach. Variables within the reach of policy do not appear to systematically reduce case complexity.
2004-06-17T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/4
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1003/viewcontent/04_04_004.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Criminal Law and Procedure
Criminal Law
oai:scholarship.law.cornell.edu:lsrp_papers-1005
2009-12-07T20:37:40Z
publication:lsrp_papers
publication:facpub
publication:facsch
Reparations and Unjust Enrichment
Sherwin, Emily
Despite an initial appearance of superior doctrinal fit, restitution is not an appropriate vehicle for reparations claims based on slavery and similar large-scale historical injustices. The justifying principle behind restitution—prevention of unjust enrichment—lacks the moral force necessary to resolve a controversial public dispute about moral rights and obligations among segments of society. At its core, a claim to restitution is an attempt to right a wrong not by alleviating the adverse consequences to oneself, but by diminishing the position of others. In other words, the notion of unjust enrichment is a comparative idea that draws on resentment and the desire for retaliation, rather than the desire to be made whole. Retaliatory impulses probably are inevitable in human affairs, and if so it may be wise to include some avenues for retaliation among the legal remedies available in private disputes. In a public controversy of considerable social significance, however, resentment and retaliation should not be accommodated by law.
2004-12-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/6
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1005/viewcontent/lsrp_papers6final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Reparations
Unjust enrichment
Restitution
Slavery
Legal Remedies
oai:scholarship.law.cornell.edu:lsrp_papers-1006
2004-10-19T12:27:19Z
publication:lsrp_papers
The Jurisprudence of Enron: Professionalism as Interpretation
Wendel, W. Bradley
Jurisprudence can seem like a formidably esoteric field, with conceptual arguments carried on at a high level of abstraction, seemingly remote from the concerns of practicing lawyers. In fact, it is impossible to ignore jurisprudence when thinking about the role of lawyers in the wave of financial accounting scandals exemplified by the collapse of Enron. The Enron case is not about ethics so much as it is about the interpretation and application of a complex scheme of legal norms to innovative business transactions. The lawyers believed they were taking a legitimate, albeit aggressive interpretive attitude toward the law, by structuring the transaction to avoid as many legal restrictions as possible. It must have come as a surprise to these lawyers when they were criticized after Enron's collapse precisely for taking an aggressive stance toward legal and financial accounting standards. Many commentators criticized lawyers for Enron and other companies such as WorldCom and Global Crossing for neglecting their responsibilities to serve as gatekeepers and for facilitating their clients' evasion of law. The lawyers' typical response is that they were only doing what lawyers do - bringing their clients' actions into conformity with the law, pushing the boundaries of the law where it would be helpful to clients, and refusing to regard themselves as quasi-regulators of transactions.
This article resolves this debate using the tools of analytic jurisprudence. The lawyers who defend creative, aggressive advice are essentially arguing for a Holmesian bad man interpretive attitude toward the law, in which the content of the law is identified by predicting when legal officials will impose sanctions on an individual. There are many problems with this approach, but one obvious one is that it reduces the law's constraint practically to a nullity, at least where the regulated actors are highly sophisticated companies with the resources to employ battalions of lawyers to create increasingly complex transactional structures. The Holmesian bad man stance, however, relies on a dubious account of the authority of law - one that prioritizes individual autonomy over all other values that bear on practical reasoning. But autonomy is not the only thing people value and, even if it were of paramount importance, there would still be conflicts between incompatible claims of liberty. The function of the law is to settle these first-order normative conflicts, and this settlement depends on the law having a relatively determinate, stable meaning. The function of law creates a second-order reason for lawyers to respect the settlement established by law and not to attempt to nullify it by creating elaborate structures to avoid penalties. Any interpretive strategy that undermines the capacity of law to resolve normative disagreement is ruled out by the second-order moral reasons that give the law legitimacy.
The argument for treating the law instrumentally relies, often tacitly, on a highly suspect characterization of the nature and content of law, one that limits legal norms only to texts. Texts are not self-interpreting, however, and can acquire stable, determinate meaning only as they are situated within an interpretive community. In jurisprudential terms, this is an argument about what Hart would call the rule of recognition. My claim is that the rule of recognition in the U.S. legal system incorporates the practices and conventions of interpretive communities as criteria for identifying law. Conventions regulate the exercise of interpretative judgment and impart stability and determinacy to legal norms that would otherwise be subject to manipulation by lawyers. This article gives a number of examples of this process at work, from simple hypotheticals to a detailed consideration of some of the transactions that played a role in the collapse of Enron. The jurisprudential claim is not limited to Enron-style transactions, but has general applicability across the entire domain of legal counseling and transactional practice.
2004-08-22T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/7
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1006/viewcontent/07_579122.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Enron
Jurisprudence
Jurisprudence
oai:scholarship.law.cornell.edu:lsrp_papers-1008
2009-12-10T17:03:17Z
publication:lsrp_papers
publication:facpub
publication:facsch
Who Pays the Auditor Calls the Tune?: Auditing Regulations and Clients' Incentives
Shapiro, Amy
As we move on from the financial scandals of the early 2000s, the question of how to prevent the next Enron continues to be a pressing one. This Article focuses on the law’s deeply conflicted treatment of auditors of public corporations. Though the audit firm is charged with serving as the public’s watchdog in insuring good financial disclosure, the auditor’s actual client is the audited corporation itself, whose interests concerning disclosure are not necessarily aligned with those of investors. Because the Sarbanes-Oxley Act of 2002 left this structure in place, further reform is needed. One promising suggestion is to give public corporations the option of buying Financial Statement Insurance (FSI) to insure against liability to investors harmed by misrepresentations in financial information disclosed to the public. Instead of working for the audited corporation, under FSI, auditors work for the insurer, whose financial interest in a candid audit is in line with the investing public’s need for good information. Who Pays The Auditor Calls The Tune? contributes to the FSI literature by making the case for reform and suggesting modifications in current FSI proposals. It reviews the development of the auditor’s role through history, the changing incentives of auditors and clients and the characteristics of other successful disclosure-based regulatory regimes compared to FSI and rival suggestions. It concludes that FSI is viable not just as a supplement to current auditor regulation, but as a substitute, with corporations required to have at least a minimum level of FSI coverage.
2005-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/9
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1008/viewcontent/lsrp_papers9final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Auditing
Accounting
Corporations
Accounting
Business Organizations Law
oai:scholarship.law.cornell.edu:lsrp_papers-1007
2009-12-10T16:31:16Z
publication:lsrp_papers
publication:facpub
publication:facsch
Preferences for Processes: the Process/Product Distinction and the Regulation of Consumer Choice
Kysar, Douglas A.
This Article examines a conceptual distinction between product-related information (such as whether a consumer good threatens to harm its user) and process-related information (such as whether a good’s production harmed workers, animals, or the environment) that has appeared in various guises within international trade law; domestic environmental, health, and safety regulation; and constitutional commercial speech jurisprudence. This process/product distinction tends to dismiss information concerning processes as unworthy of attention from consumers or regulators, at least so long as the processes at issue do not manifest themselves in the physical or compositional characteristics of resulting end products. Proponents have offered the process/product distinction as a useful device for determining when consumer product regulations are likely to have drifted beyond the satisfaction of significant consumer interest into areas of unjustified alarm, disguised protectionism, or excessive encroachment onto competing interests, such as the speech concerns of product manufacturers or the domestic sovereignty of foreign nations. As this Article shows, however, the process/product distinction proves far too thin and formalistic of a conceptual device, once one examines the full panoply of reasons why consumers might express preferences for processes. Thus, rather than dismissing process preferences as especially likely to be ill-informed or otherwise objectionable, this Article argues in favor of acknowledging and accommodating such preferences within theoretical frameworks for policy analysis. Indeed, in view of several growing phenomena — including the cultural and political significance attached to the consumption function, the effort by regulatory cost-benefit analysts to ground public policies on the values revealed by individuals acting in their roles as market actors, and the integration of global product markets without similarly expansive integration of the global regulatory system — this Article concludes that, in the future, process preferences may serve as indispensable outlets for public-regarding behavior.
2004-12-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/8
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1007/viewcontent/lsrp_papers8final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Government policy
Consumer choice
Consumer Protection Law
oai:scholarship.law.cornell.edu:biss_papers-1004
2004-11-05T12:35:02Z
publication:biss_papers
publication:conf_lec_work
The Supreme Court, Guantanamo Bay and Justice Fix-it
Meister, Ronald W.
In the summer of 2004, the United States Supreme Court ruled on three cases involving individuals detained as "enemy combatants." Given the issues of Presidential power, habeas corpus and individual rights involved, there was a lot of speculation about the historical importance of the decisions. This presentation examines these three decisions and what they teach us about the Supreme Court and government in the 21st century.
2004-10-25T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/biss_papers/4
https://scholarship.law.cornell.edu/context/biss_papers/article/1004/viewcontent/auto_convert.pdf
Cornell Law School Berger International Speaker Papers
Scholarship@Cornell Law: A Digital Repository
Detention of persons
Habeas corpus
Presidential power
Civil Rights
Civil Rights and Discrimination
oai:scholarship.law.cornell.edu:clsops_papers-1018
2006-05-18T17:57:55Z
publication:libpub
publication:clsops_papers
publication:facsch
Le projet GPO visant à conserver l'ensemble des données juridiques publiques américaines
Germain, Claire M.
The Government Printing Office (GPO http://www.gpoaccess.gov/) digitization efforts have the goal to provide permanent public access in electronic form to publications of the United States Federal government, following the American principle that citizens should have free access to government information. By law and tradition, GPO has provided access to official publications regarding the three branches of the Federal government, Congress, the judiciary, and the executive, since 1813. Sample legal publications include bills, congressional reports and hearings, Congressional Record, public and private laws, U.S. Code, Federal Register, Code of Federal Regulations, Supreme Court decisions, federal agency reports and documents.
GPO is currently building a new model for government publishing, based on the new technologies available. It is creating a fully digital database of all known federal government documents, to be used for multiple purposes, such as producing print on demand documents and disseminating official government documents over the Internet. GPO intends to take the lead in creating digital standards for official documents of the United States government. This includes gathering and producing digital documents in a uniformly structured database, in order to authenticate documents disseminated over the Internet and to preserve the information for permanent public access. It also involves developing database search and retrieval tools, metadata and permanent PURLs (Persistent Uniform Resource Locators), and providing increased to training to librarians.
2004-11-03T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/clsops_papers/17
https://scholarship.law.cornell.edu/context/clsops_papers/article/1018/viewcontent/claire_gpo.pdf
https://scholarship.law.cornell.edu/context/clsops_papers/article/1018/filename/0/type/additional/viewcontent/Claire_GPO_abstract_French.rtf
Cornell Law Faculty Working Papers
Scholarship@Cornell Law: A Digital Repository
Government documents
Preservation
Digitization
oai:scholarship.law.cornell.edu:lsrp_papers-1011
2009-12-11T17:00:29Z
publication:lsrp_papers
publication:facpub
publication:facsch
Common-Law Compulsory Counterclaim Rule: Creating Effective and Elegant Res Judicata Doctrine
Clermont, Kevin M.
Even in the absence of an applicable statute or court rule, failure to assert an available counterclaim precludes bringing a subsequent action thereon if granting relief would nullify the judgment in the initial action. This so-called common-law compulsory counterclaim rule emerges from the intuitive principle of claim preclusion that a valid and final judgment generally precludes the defendant from later asserting mere defenses to the claim. The implicit extension of this idea is that once a plaintiff obtains a judgment, the defendant generally cannot bring a new action to undo the judgment by reopening the plaintiff’s claim and pushing those defenses. The evident rationale is that claim preclusion simply must apply when the effect of the defendant’s collaterally asserted defense would be to nullify the earlier judgment for the plaintiff.
This implicit barrier to collateral attack may seem to occupy some arcane corner of the specialty of res judicata. But the common-law compulsory counterclaim rule in fact is critical to any judicial system. That is, although it is intuitive, it is also important. The rule applies whether or not the prior judgment was by default; the rule indeed is especially important because it works to guarantee that even default judgments mean something and cannot normally be undone by later litigation. The rule applies whether or not a compulsory counterclaim statute or rule of court exists; that fact explains why its very name declares it to be a common-law doctrine. This article takes a wide view of the rule’s purposes and development to determine the rule’s proper scope.
2004-10-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/12
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1011/viewcontent/lsrp_papers12final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Res judicata
Compulsory counterclaim
Jurisprudence
Jurisprudence
oai:scholarship.law.cornell.edu:lsrp_papers-1009
2009-12-10T17:21:25Z
publication:lsrp_papers
publication:facpub
publication:facsch
A Global Law of Jurisdiction and Judgments: Views from the United States and Japan
Clermont, Kevin M.
Japanese and U.S. legal systems, despite surprisingly similar doctrine and outlook on matters of jurisdiction and judgments, often clash: jurisdictions overlap and judgments may go unrespected, while parallel proceedings persist. The current outlook for harmonization through a multilateral Hague convention of general scope is bleak. These two countries are, however, ideally situated to reach a highly feasible bilateral agreement that would provide a better tomorrow in which jurisdiction was allocated appropriately and judgments were respected accordingly.
2004-09-08T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/10
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1009/viewcontent/lsrp_papers10final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Foreign judgments
Japan
Jurisdiction
Jurisdiction
oai:scholarship.law.cornell.edu:lsrp_papers-1010
2009-12-11T16:26:28Z
publication:lsrp_papers
publication:facpub
publication:facsch
Standards of Proof in Japan and the United States
Clermont, Kevin M.
This article treats the striking divergence between Japanese and U.S. civil cases as to standards of proof. The civil-law Japan requires proof to a high probability similar to the criminal standard, while the common-law United States requires only that the burdened party prove the fact to be more likely than not. This divergence not only entails great practical consequences, but also suggests a basic difference in attitudes toward the process of trial.
As to the historical causation of the difference in standards of proof, civil-law and common-law standards diverged in the late eighteenth century, probably because of one system’s French Revolution and the other’s distinctive procedure. The French Revolution, in the course of simplifying the civilian law of proof, hid the standards of proof from view. Meanwhile, the common-law jury served to induce judges to articulate standards of proof for the adversary system.
As to the current motivation to adhere still to the old standards, the different standards conform to the subtle differences between the two systems’ procedural objectives. The civil-law system seeks the legitimating benefits of the myth that its courts act only on true facts and not on mere probabilities. Common-law courts seek legitimacy elsewhere, perhaps in other myths, and thus are free to adopt preponderance of the evidence as the standard of proof that more efficiently and fairly captures the real truth of the case.
2004-09-08T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/11
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1010/viewcontent/lsrp_papers11final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Standards of proof
Japan
Civil Law
Evidence
oai:scholarship.law.cornell.edu:lsrp_papers-1012
2004-11-12T17:14:27Z
publication:lsrp_papers
French Article 14 Jurisdiction, Viewed from the United States
Clermont, Kevin M.
Palmer, John R.B.
French courts have broadly read their Civil Code’s oddly written Article 14 as authorizing territorial jurisdiction over virtually any action brought by a plaintiff of French nationality. This study traces the history of this provision from its genesis two hundred years ago to its extension under the current Brussels Regulation.
Nevertheless, for a number of reasons, French plaintiffs do not use Article 14 all that much, other than in status suits such as matrimonial matters or in situations where the defendant has assets in France (or now, under the Brussels regime, in Europe). The actual use of Article 14 ends up being not all that different from what other countries have accomplished in other ways, such as the United States by its nonpersonal attachment jurisdiction or Germany by its property-based personal jurisdiction. Each country’s exorbitant jurisdiction constitutes a way to allow its own people to sue at home when they can enforce the judgment at home, which is usually so much easier than suing abroad.
So one could argue that, being essentially similar to all the other countries’ exorbitances, Article 14 mainly sounds bad, because it is more nationalistic in expressing who can invoke it and because it does not utilize the subterfuge of expressly linking to property in France or to any other defendant contact with France. But in fact Article 14 has more extensive effects than its limited invocation suggests, lurking in the background of numerous filed cases and threatened cases. The future poses the risk of ever more extensive pernicious effects. International conventions should therefore aim at eliminating Article 14, like any other exorbitant jurisdiction.
2004-09-08T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/13
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1012/viewcontent/13_04_011.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
France
Code civile
Jurisdiction
Jurisdiction
oai:scholarship.law.cornell.edu:lps_papers-1016
2004-11-29T17:15:01Z
publication:lps_papers
publication:stusch
publication:stu_papers
Contract Law and Decisions on Costs
Stacher, Marco
The national statutes on international commercial arbitration, the leges arbitri, do, as a rule, not contain provisions on costs. In the final award, an arbitrator has to determine the costs of the arbitration (the fees of the arbitral tribunals, of expert witnesses mandated by the arbitral tribunal etc.), which cost incurred by the parties during the arbitration are recoverable and which party has to bear what share of the costs. A decision on these issues forms part of the ordinary course of an arbitration. Further cost-related issues may arise due to the peculiarities of the case, such as a refusal of one of the parties to contribute to the financing of the arbitration. Resorting to agreements may provide a satisfactory means for certain decisions on costs in arbitration proceedings; this is by making use of the contractual nature of these agreements; by asking whether these agreements can be interpreted in a way that gives an answer to the issue at stake or - as in the case of security for costs - whether the contract may be amended to grant a motion for security for costs. It is submitted that the reasoning so achieved is at least as convincing and consistent as other approaches solicited by doctrine. Therefore, it is further submitted that this approach should be considered when an issue arises that is not addressed in the lex arbitri or the institutional arbitration rules .
2004-11-12T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/5
https://scholarship.law.cornell.edu/context/lps_papers/article/1016/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Arbitration costs
Contracts
Contracts
oai:scholarship.law.cornell.edu:lsrp_papers-1013
2009-12-11T18:53:48Z
publication:lsrp_papers
publication:facpub
publication:facsch
The Role of Private International Law in the United States: Beating the Not-Quite-Dead Horse of Jurisdiction
Clermont, Kevin M.
Territorial authority to adjudicate is the preeminent component of private international law. Empirical research proves that forum really affects outcome, probably by multiple influences. This practical effect makes international harmonization of jurisdictional law highly desirable. Although harmonization of nonjurisdictional law remains quite unlikely, jurisdictional harmonization is increasingly feasible because, among other reasons, U.S. jurisdictional law in fact exhibits no essential differences from European law. None of the usual assertions holds up as an unbridgeable difference, including that (1) the peculiar U.S. jurisdictional law flows inevitably from a different theory of governmental authority, one that rests on power notions; (2) U.S. law differs because its legal institutions have managed to constitutionalize jurisdiction; (3) it is the same old story of common-law courts playing too active a part in the development of the law in the United States; (4) the United States has resolved the fundamental jurisprudential tension between certainty and precision in a way that maximizes the role of fact-specific inquiry; and (5) those activist courts are ironically too willing to decline the jurisdiction bestowed on them by the legislature. Indeed, with minor legislative reforms to give the U.S. law somewhat greater certainty and restraint, the distance to Europe would shrink even further. Jurisdiction could thus be the fulcrum for rearranging the international judicial order.
Despite the difficulties recently encountered in the Hague negotiations, the international community should immediately begin to take the series of small steps necessary to prepare the way for achieving the long-run goal of a multilateral convention that harmonizes jurisdictional law.
2004-09-08T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/14
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1013/viewcontent/lsrp_papers14final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Jurisdiction
Conflict of Laws
Jurisdiction
oai:scholarship.law.cornell.edu:lsrp_papers-1014
2009-12-11T19:05:50Z
publication:lsrp_papers
publication:facpub
publication:facsch
The Many Dimensions of Private Law
Hillman, Robert A.
This article is a revised version of a paper delivered at the 33rd Annual Workshop on Commercial and Consumer law, held at the Faculty of Law of the University of Toronto. It is a commentary on Stephen Waddams, Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning (Cambridge, Press 2003). The article first reviews Waddams' thesis of the inadequacy of simple explanations or categorizations of private law and Waddams' admonition to avoid labeling cases such as contract or tort, as if one involves solely enforcing agreements and the other only wrongdoing. The article then goes on to analyze questions inspired by Waddams' book: What accounts for the popularity of conceptualizing private law? What are the ramifications of the reality that private law is complex and multidimensional? What new approaches to the study of decision-making shed light on the judicial process when judges confront multidimensional problems? The article concludes that analysts should not be sanguine about the ability of judges to handle complexity and that judges make systematic errors in that environment just like everyone else. If categorizing or mapping moves only a few prominent concepts to the forefront, perhaps it performs an important service.
2004-10-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/15
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1014/viewcontent/lsrp_papers15final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Private Law
Stephen Waddams
oai:scholarship.law.cornell.edu:lsrp_papers-1015
2009-12-11T20:26:20Z
publication:lsrp_papers
publication:facpub
publication:facsch
Killing the Willing: "Volunteers," Suicide and Competency
Blume, John H.
Of the 822 executions, in the modern era of capital punishment, 106 involved volunteers, or inmates who chose to waive their appeals and permit the death sentence to be carried out. The debate about volunteers, although intense, has primarily been polemic. Those who wish to curtail a death row inmate’s ability to waive his appeals refer to volunteer cases as nothing more than “state assisted suicide;” advocates of permitting inmates to choose execution reject the suicide label, instead focusing on respect for a death row inmate’s right to choose whether to accept his punishment.
This article takes a different approach. It asks how, and how often, volunteers are in fact similar to suicidal persons and offers some empirical comparisons between the characteristics of death row inmates who have waived their appeals and been executed with those of people who commit suicide in the “free world.” The demographic and epidemiological similarities between death row volunteers and free world suicides strongly suggest that the present legal standard for assessing the legitimacy of a death sentenced inmate’s desire to waive his appeals–the competency standard–has turned a blind eye to the possibility that many waivers are motivated by the inmate’s desire to commit suicide.
Thus, this article proposes a standard for assessing waiver which both attempts to insure that a death row inmate is not permitted to use the death penalty as a means of committing state assisted suicide, and which protects the right of a mentally healthy inmate to forego further appeals when motivated by acceptance of the justness of the punishment.
2004-09-15T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/16
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1015/viewcontent/lsrp_papers16final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Capital punishment
Death penalty
Criminal Law and Procedure
Criminal Law
oai:scholarship.law.cornell.edu:lsrp_papers-1016
2005-03-07T16:49:12Z
publication:lsrp_papers
publication:facpub
publication:facsch
Separate But Equal and Single-Sex Schools
Simson, Gary J.
Spurred on by published reports about gender bias in the schools, public single-sex schools, which had almost disappeared from the scene in the U.S. fifteen years ago, began to make a comeback in the early 1990s. In addition, in the past few years, the Bush Administration has taken measures to add momentum to this development. Does the principle that separate is inherently unequal, which the Supreme Court in Brown v. Board of Education laid down in the context of public schools separated by race, also apply to public schools separated by sex?
Part I of this Article examines the constitutionality under the Equal Protection Clause of a school district's having an all-boys school and an all-girls school on the same grade levels. After suggesting in Part I that the fate of such coordinate public single-sex schools should be seen as intimately tied to whether they disadvantage girls, the Article in Part II considers the constitutionality of public single-sex education when it takes a form that on its face advantages girls: girls can choose between a coed and a single-sex public school, while boys can only attend a coed one. The Article suggests in closing that even if public single-sex schools pass constitutional muster, they represent too limited a response to the gender equity problems that sparked renewed interest in public single-sex education in recent years.
2005-01-10T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/17
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1016/viewcontent/01___05_001.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Single-Sex Schools
Education Law
Education Law
oai:scholarship.law.cornell.edu:lps_papers-1017
2005-07-12T12:40:04Z
publication:lps_papers
publication:stusch
publication:stu_papers
Deciding on an Efficient Involuntary Bankruptcy Filing Petition Rule
Muro, Sergio A.
Bankruptcy law deals with last recourse solutions to extreme financial and balance-sheet problems. Both debtor and his creditors will have incentives to begin an insolvency case balanced with other reasons that will encourage them not to begin it. Consequently legal systems usually tend to concentrate on rules that will spur either group to bring the bankruptcy proceeding when it is adequate. As a result some countries have creditors bringing most of the proceedings (as is the case of the United Kingdom) and others have debtors as the prime figures.
This paper focuses on the creditor side of the equation and aims to provide for a normative stance on whether bankruptcy laws should promote liberal or restrictive standards for creditors to comply with in order to file an involuntary bankruptcy petition. Specifically, this paper will deal with the “unpaid due obligation” standard, which implies that a creditor can file an involuntary petition on the mere grounds of having an unpaid debt owed to the creditor. I will argue that a rule which restricts the ability of creditors to file an involuntary bankruptcy petition is inefficient.
2005-03-10T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/6
https://scholarship.law.cornell.edu/context/lps_papers/article/1017/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Bankruptcy Law
Bankruptcy Law
oai:scholarship.law.cornell.edu:lps_clacp-1018
2005-04-20T15:00:04Z
publication:conf_lec_work
publication:lps_clacp
Exporting U.S. Anti-Terrorism Legislation and Policies to the International Law Arena, a Comparative Study: the Effect on Other Countries' Legal Systems
Kallergi, Olga
The terrorist attack on the World Trade Center in New York on 9/11 set in motion a new era all over the world: an era of a world uniting against a common enemy, but also an era of insecurity and fear. Laws have been changed worldwide, nations have united against a common threat, legal theories and beliefs of centuries have been questioned, and civil liberties have been replaced by a need for national safety. Has this worldwide effort worked? Is our world a better place now that we are all fighting the same enemy? Did we learn from our past mistakes? And if yes, did we learn the right lessons?
After analyzing the situation in various countries in regard to anti-terrorism efforts as well as the problems that the exporting of U.S. policies has created, we conclude that suspension of civil and constitutional rights should not be the means in the goal of fighting terrorism; not only because civil law is in direct conflict with such practices, but also and more importantly because the same goal can be achieved through less harsh and more fair means. An international cooperation in counter-terrorism efforts, through exchange of information, advanced technology and expertise, can help countries be more effective in arresting terrorists and collecting and evaluating evidence that can be later used in a court of law, in order to bring these terrorists to justice and convict them. The war against terrorism can be won without sacrificing our legal ethics, without violating constitutional and human rights and procedures.
2005-04-16T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_clacp/4
https://scholarship.law.cornell.edu/context/lps_clacp/article/1018/viewcontent/auto_convert.pdf
Cornell Law School Inter-University Graduate Student Conference Papers
Scholarship@Cornell Law: A Digital Repository
Terrorism
Civil Rights
Comparative Law
Human Rights Law
International Law
Civil Rights and Discrimination
Comparative and Foreign Law
Human Rights Law
International Law
oai:scholarship.law.cornell.edu:lsrp_papers-1017
2010-01-07T16:42:59Z
publication:lsrp_papers
publication:facpub
publication:facsch
Rulemaking Versus Adjudication: A Psychological Perspective
Rachlinski, Jeffrey J.
Legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (the adjudicative process) or by declaring general principles through a centralized authority that are to be applied in individual cases (through the rulemaking process). Administrative agencies have long had the unfettered authority to choose between the two methods. Although each method could identify the same solution to the legal issues that come before them, in practice, the two systems commonly settle upon different resolutions. Each system presents the underlying legal issue from a different cognitive perspective, highlighting and hiding different aspects of a legal problem. These differences produce different resolutions to legal problems. The single-case perspective of adjudication seems, in many ways, cognitively inferior to the broad perspectives that legislatures can incorporate into their decisionmaking processes. The adjudicative approach, however, has advantages that are less obvious. Notably, the adjudicative process is more likely to facilitate the adoption of simple, elegant rules for decisionmaking. The assessment of which approach is superior is, therefore, indeterminate. Each has its strengths and weaknesses that make them more or less appropriate for different contexts.
2005-02-21T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/18
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1017/viewcontent/lsrp_papers18final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Rulemaking
Adjudication
Jurisprudence
Jurisprudence
oai:scholarship.law.cornell.edu:biss_papers-1005
2005-04-25T19:45:02Z
publication:biss_papers
publication:conf_lec_work
The Power of Law and Women's Presence in the Thaksin Era
Somswasdi, Virada
The term "law" as used here depicts consistency in ideology, intent, presumption and the imposition of definitions on day-to-day human relations, including male-female relations. The power of law is the process of definition, which takes precedence over experiences, and also takes precedence over the meaning that women give to their own lives.
This paper refutes a rigid division of issues within law and adopts a feminist perspective, rather than that of the mainstream structure. Issues identified as significant by the women’s movement are thus emphasized. I do not refer to law as the only tool feminists need to resort to in bringing about gender equality and respect for women’s human rights.
Yet, law as a symbol of justice and truth will be challenged. The intention of this paper is to welcome other non-legal strategies for women’s emancipation. The intention is to stimulate debate on contemporary feminist theorizing on law and to challenge the way in which law has been understood. The focus is on the power of law as a discourse that disqualifies other forms of knowledge, rather than a consideration of the material consequences of law, which implicitly, or explicitly, operates in the interests of patriarchy.
Engagement with and disengagement of feminists from law can construct new legal concepts and perspectives and bring about an equitable distribution of power between men and women. Yet, to bring these benefits to society, new conceptualizations and systematizations of the legal system have to be developed. It is not only in the book but also by activism that members of society have to challenge and bring down the power of inequitable laws.
2005-03-30T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/biss_papers/5
https://scholarship.law.cornell.edu/context/biss_papers/article/1005/viewcontent/auto_convert.pdf
Cornell Law School Berger International Speaker Papers
Scholarship@Cornell Law: A Digital Repository
Thailand
Women
Law and Gender
oai:scholarship.law.cornell.edu:lps_clacp-1019
2005-05-06T18:20:40Z
publication:conf_lec_work
publication:lps_clacp
European Law on Capital Markets – Quo Vadis?
Huemer, Daniela
The occurrence of more than a dozen accounting scandals in the United States over the past few years have deeply shaken the capital market and have led some to believe that “corporate and legal culture has lost all sense of right and wrong.” Scandals at companies such as Enron and Worldcom have cost thousands of employees their jobs and caused thousands of investors to lose their investments completely. Similar scandals have happened in Europe as well, such as at Parmalat and Lernout & Hauspie, which has caused an increasing reluctance among investors to trust companies with their dollars.
These circumstances have sparked a major debate over corporate governance. Investors, having lost hundreds of billions of dollars pleaded for more protection to ensure that such frauds would not happen again. The US Congress had only a short time period in which to respond to these events and try to prevent the situation from deteriorating further. Congress’s work resulted in the implementation of the Sarbanes-Oxley Act, which was “the most sweeping and important US federal securities legislation affecting public companies and other market participants since the SEC was created in 1934”. The European response to the Sarbanes-Oxley Act is manifested in several directives in the field of the law on capital markets. Both the United States and the European Union have had to deal with the issue of restoring investors’ lost confidence, and both have tried to solve the problem by enacting more detailed provisions. This paper examines the present trend in the field of law on capital markets more closely with a particular focus on the European Union. So far, scholars have concentrated only – if at all – on summarizing the content of the several Directives, while leaving aside the question whether the legislative activity of the European Union is a good or bad policy.
I first conduct a closer examination of European capital markets law. In particular my focus is on the most recent and important issues the Member States had, and partly still have to deal with: the Directive on Market Abuse 2003/6/EC, the Prospectus Directive 2003/71/EC and the Transparency Directive 2004/109/EC. I then argue that: (i.) The available data indicates that law on capital markets is moving toward greater regulation on a European level as well as toward a uniformity; and (ii.) although attempting to achieve harmonization on an EU-wide basis is preferable to a “state by state” approach, the European Union should pursue a lower degree of legislative activity.
2005-04-16T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_clacp/5
https://scholarship.law.cornell.edu/context/lps_clacp/article/1019/viewcontent/auto_convert.pdf
Cornell Law School Inter-University Graduate Student Conference Papers
Scholarship@Cornell Law: A Digital Repository
Capital markets
Europe
Banking and Finance
Corporations
Banking and Finance Law
Business Organizations Law
oai:scholarship.law.cornell.edu:lps_clacp-1020
2005-05-09T12:45:14Z
publication:conf_lec_work
publication:lps_clacp
NGO Legitimacy: Reassessing Democracy, Accountability and Transparency
Lehr-Lehnardt, Rana
Non-governmental organizations have enjoyed an unprecedented amount of influence on national as well as international fronts for at least the last decade. A recent survey reveals educated Americans and Europeans trust NGOs more than they trust governments, corporations, and the media. As their power augments, NGOs have become increasingly skeptical and critical of the power held by the United Nations and by sovereign states. NGOs accuse these world powers of engaging in rule-making processes that are lacking in transparency, democracy, and accountability, thus lacking in legitimacy. Now, even as their power grows, NGOs are falling under this same criticism. Democracy, transparency, and accountability go to the core of representation, they shed light on power structures, they can illuminate bias and self-interest, and most importantly, lack of them can destroy legitimacy. But do they fit in a NGO framework? Should NGOs be held to the same standards of democracy, transparency, and accountability as nation states? Or is there something inherently different about NGOs that would or should exempt them from the rules of the game for nation states and inter-governmental organizations? Is the lack of democratic processes, transparency and accountability undermining the power of the NGO movement, or is the lack thereof allowing for the vitality and rapid growth in the NGO movement?
2005-04-16T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_clacp/6
https://scholarship.law.cornell.edu/context/lps_clacp/article/1020/viewcontent/auto_convert.pdf
Cornell Law School Inter-University Graduate Student Conference Papers
Scholarship@Cornell Law: A Digital Repository
Non-governmental organizations
International Law
International Law
oai:scholarship.law.cornell.edu:lps_papers-1021
2005-05-10T14:00:58Z
publication:lps_papers
publication:stusch
publication:stu_papers
The Balancing Act of Copyright: The Copyright Laws of Australia and the United States in the Digital Era
Thampapillai, Dilan J.
The digital era has posed a unique challenge to copyright law. The emergence of the information technology revolution and the internet has increased the ability and the willingness of copyright users to copy and distribute protected material. In response to this phenomenon copyright owners have pushed for stronger laws to protect their content from infringement. Their success has prompted a strong counter reaction from copyright users and consumer groups.
This paper seeks to examine how changes to Australian and US copyright law have resulted in an imbalance between owners and users and whether the traditional safeguards of fair dealing and fair use have had any utility in the digital era.
As common law nations, the copyright laws of both jurisdictions are derived from the Statute of Anne 1710 of the United Kingdom which sought to balance the interests of users and owners so as to maximise the social and economic benefits from the creation and use of intellectual materials. Both the United States and Australia have long been committed to balancing the interests of stakeholders in copyright. This balance looks to be increasingly imperilled in the digital era
This paper was prepared in November 2003 as part of the course requirements for International Intellectual Property with Professor Madhavi Sunder. Subsequent to the completion of the paper Australia and the United States concluded the Australia-United States Free Trade Agreement (AUSFTA) which required some changes to the Australian Copyright Act 1968. Where relevant those changes have been noted.
2003-11-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/7
https://scholarship.law.cornell.edu/context/lps_papers/article/1021/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Copyright
Australia
Digital rights management
Intellectual Property Law
Intellectual Property Law
oai:scholarship.law.cornell.edu:lps_clacp-1022
2005-05-20T14:35:02Z
publication:conf_lec_work
publication:lps_clacp
Antitrust Analysis of B2B Transaction
Inoue, Akira
B2B is a business-to-business market place that uses internet to connect each other business. It has gotten a lot more attention recently in Japan as well as in the U.S. because it is possible to lower the procurement costs of raw material and accomplish several procompetitive effects such as communication efficiencies. However, in spite of these pro transactional natures of B2B, it could also cause anticompetitive effects on market place. In other words, the fact that buyers communicate easily through the internet means they could easily form a cartel or conclude an agreement to restrain the free competition and it is easy to detect deviation from those agreements. There must have been buyers’ anticompetitive agreements long before B2B and these agreements were concluded without using the internet-based communication. However, the potential for B2B to aid buyers’ agreements is worth to get attention. Despite this importance, there have been little cases and studies concerning buyers’ agreement even in the U.S. and, in Japan, there have been neither cases nor the detail examination by the governmental agencies about buyers’ anticompetitive agreements. This is because traditionally sellers have had a strong bargaining power over purchasers. Therefore, little attention has been focused on anticompetitive effects which might be caused by buyers’ agreements. The internet, however, drastically changed the bargaining power balance between sellers and purchasers. It has made possible for purchasers to form a cartel to decrease the input purchased and lower the price through the web-based communication. The paper examines the competitive aspects of B2B from the view point of the antitrust law and analyzes oligopsony, that is, buyers’ collusion to exercise their market power to decrease the price of the products they are going to buy from suppliers by depressing the quantity of input purchased artificially. Drawing on microeconomic theory and antitrust law, the interdisciplinary work in the paper explores the implications of oligopsony, or buying power, for antitrust policy. The paper offers a systematic treatment of the topic, demonstrating that whether or not oligopsony power exists because of a dominant buyer or collusion among buyers, it can cause social welfare losses analogous to those occasioned by monopoly. The paper also discusses bilateral monopoly and offers a principled basis for distinguishing between socially desirable and undesirable cooperative buying. In addition, the paper analyzes the legal response to an oligopsony agreement in the U.S. as well as in Japan in order to examine how an oligopsony agreement should be treated. Further, the paper discusses tangential facts and circumstantial evidence to find an oligopsony agreement, because, in the antitrust practice, whether or not it is possible to find an agreement is sometimes the decisive point. The paper tries to provide the practical precepts to find an agreement which would be concluded on B2B.
2005-04-16T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_clacp/7
https://scholarship.law.cornell.edu/context/lps_clacp/article/1022/viewcontent/auto_convert.pdf
Cornell Law School Inter-University Graduate Student Conference Papers
Scholarship@Cornell Law: A Digital Repository
Antitrust
B2B
Commercial Law
Commercial Law
oai:scholarship.law.cornell.edu:lps_papers-1023
2005-08-22T13:55:02Z
publication:lps_papers
publication:stusch
publication:stu_papers
International Antisuit Injunctions: Enjoining Foreign Litigations and Arbitrations - Beholding the System from Outside
Stacher, Marco
Antisuit injunctions are issued by a court to prevent a party from bringing suit in another forum. They are a powerful tool available to American courts to implement their decision on jurisdiction. It goes without saying that granting such an injunction de facto affects the capability of the other forum to hear the dispute, which conflicts with the principle of comity. American courts therefore only enjoin a party from proceeding in another forum if certain criteria are satisfied. This paper discusses these criteria in the context of international litigations and arbitrations. It analyzes the case law on this issue and proposes an alternative approach, which approach tries to bring antisuit injunctions into line with other forms of injunctions and suggests, based on the New York Convention, that they should only be granted with reticence in the context of international commercial arbitrations.
2005-05-31T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/8
https://scholarship.law.cornell.edu/context/lps_papers/article/1023/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Antisuit injunctions
Commercial Law
International Law
Jurisdiction
Commercial Law
International Law
Jurisdiction
oai:scholarship.law.cornell.edu:lps_papers-1024
2005-10-31T16:10:18Z
publication:lps_papers
publication:stusch
publication:stu_papers
Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea
Agyebeng, Kissi
The evolution of the law of the sea has been shaped largely by two notions, namely, freedom of navigation on the one hand, and restricted access on the other hand. The interaction between these two opposing notions has led to the acceptance of two compromise concepts, namely, the territorial sea and the right of innocent passage. These concepts have now been codified in the 1982 United Nations Convention on the Law of the Sea. This paper examines the right of innocent passage in the territorial sea under the Law of the Sea Convention regime as matched against contemporary state practice. It would appear that many coastal states prefer the restriction of this right – seemingly infringing what the Convention stands for. It is submitted that states should restructure their policies and regulations to conform to their assumed obligations under the Convention.
2005-10-31T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/9
https://scholarship.law.cornell.edu/context/lps_papers/article/1024/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
United Nations Convention on the Law of the Sea
Innocent passage
Law of the Sea
Law of the Sea
oai:scholarship.law.cornell.edu:lsrp_papers-1018
2006-10-30T19:20:56Z
publication:lsrp_papers
publication:facpub
publication:facsch
Jurisdictional Fact
Clermont, Kevin M.
What kind of factual showing must the plaintiff make in order to establish, say, personal jurisdiction? While that question may seem simple enough, real difficulties in regard to the standard of proof arise when there is a similarity of the facts entailed in the jurisdictional determination and those on the merits. Surely, the plaintiff has to do more than allege that the defendant is the author of state-directed acts or omissions. Yet, almost as surely, the plaintiff should not have to prove the cause of action in order to establish jurisdiction. The plaintiff thus must have to show something between allegation and proof.
From a morass of confused cases on this procedural point of significance, this Article draws a startlingly clear rule that covers jurisdictional fact, and much more. On any factual element or legal question of forum authority, from subject-matter jurisdiction to venue whenever properly challenged, the proponent of forum authority must make the usual showing of “more likely than not,” subject to this exception: if that element or question overlaps the merits of the claim, the proponent need provide only prima facie proof to establish the forum’s authority. Depending on the particular threshold issue’s importance, “prima facie” might mean any of the standards below the more-likely-than-not standard, namely, slightest possibility, reasonable possibility, substantial possibility, or equipoise. That lower standard will allow the judge to decide efficiently but definitively whether the forum has authority to decide the merits—doing so without entailing or foreclosing any decision on the merits, a decision to which a higher standard would apply.
2006-07-24T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/19
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1018/viewcontent/05_013.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Jurisdiction
Jurisdiction
oai:scholarship.law.cornell.edu:lsrp_papers-1020
2005-11-23T18:14:26Z
publication:lsrp_papers
In Praise of Investor Irrationality
La Blanc, Gregory
Rachlinski, Jeffrey J.
How should a market filled with investors who chronically make bad investments, but is nevertheless efficient, be regulated? A growing body of evidence suggests that this is the state of most securities markets; investors rely on cognitive processes that produce systematically bad choices, and yet the market remains largely efficient. In fact, cognitive errors might be essential to their efficient operation. Even investors who make systematic errors also often possess real and unique information that can contribute to accurate pricing of securities. If such investors became mindful of their limited ability to distinguish between real information and erroneous information, they would decline to rely on their beliefs to invest and would thereby withhold private information from the market. Over-confidence on the part of these investors leads them to trade anyway. This over-confidence provides market liquidity, but more importantly, provides the market with the private information that individual investors possess (but should, rationally, withhold). Hence, reforms designed to save investors from the costs of their cognitive errors would reduce market liquidity and deprive the market of valuable information. In short, markets need irrationality.
2005-04-06T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/21
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1020/viewcontent/06___05_006.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Investors
Securities Law
Securities Law
oai:scholarship.law.cornell.edu:lsrp_papers-1019
2011-06-01T17:00:22Z
publication:lsrp_papers
publication:facpub
publication:facsch
Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding
Wistrich, Andrew J.
Guthrie, Chris
Rachlinski, Jeffrey J.
Due process requires courts to make decisions based on the evidence before them without regard to information outside of the record. Skepticism about the ability of jurors to ignore inadmissible information is widespread. Empirical research confirms that this skepticism is well-founded. Many courts and commentators, however, assume that judges can accomplish what jurors cannot. This article reports the results of experiments we have conducted to determine whether judges can ignore inadmissible information. We found that the judges who participated in our experiments struggled to perform this challenging mental task. The judges had difficulty disregarding demands disclosed during a settlement conference, conversation protected by the attorney-client privilege, prior sexual history of an alleged rape victim, prior criminal convictions of a plaintiff, and information the government had promised not to rely upon at sentencing. This information influenced judges’ decisions even when they were reminded, or themselves had ruled, that the information was inadmissible. In contrast, the judges were able to ignore inadmissible information obtained in violation of a criminal defendant’s right to counsel and the outcome of a search when determining whether probable cause existed. We conclude that judges are generally unable to avoid being influenced by relevant but inadmissible information of which they are aware. Nevertheless, judges displayed a surprising ability to do so in some situations.
2005-04-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/20
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1019/viewcontent/05___05_005.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Evidence
Evidence
oai:scholarship.law.cornell.edu:lps_papers-1025
2006-01-11T13:21:57Z
publication:lps_papers
publication:stusch
publication:stu_papers
The Prophecies of the Prophetic Jurist – A Review of Selected Works of Oliver Wendell Holmes, Jr.
Agyebeng, Kissi
This is a review of the methodology and style of legal research of Oliver Wendell Holmes, Jr., focusing on the ideological and philosophical leanings that informed his scholarship. The review spans selected works of his undergraduate days through his mid-career writings and his representative opinions on the Supreme Judicial Court of the State of Massachusetts and the Supreme Court of the United States.
2005-11-18T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/10
https://scholarship.law.cornell.edu/context/lps_papers/article/1025/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Holmes Jr.
Oliver Wendell
Judges
Jurisprudence
Legal Analysis and Writing
Legal Research and Bibliography
Judges
Jurisprudence
Legal Writing and Research
oai:scholarship.law.cornell.edu:lps_papers-1026
2006-02-20T14:15:03Z
publication:lps_papers
publication:stusch
publication:stu_papers
Disappearing Acts – Toward a Global Civil Liability Regime for Pollution Damage Resulting from Offshore Oil and Gas Exploration
Agyebeng, Kissi
Civil liability for pollution damage is recognized and firmly established under international law. However, there is no global international treaty that addresses this issue with respect to offshore oil and gas exploration. This may be due partly to the infrequency of the occurrence of offshore oil well blowouts. However, offshore operations represent a constant threat to the marine environment since the risk of a blowout leading to an ecological disaster is ever present. The trend has been the adoption of regional agreements to tackle the issue. However, most of the regional arrangements deal with the issue in a sidelong manner and they lack worldwide application. The case is made that a global treaty on the subject is long overdue.
2006-02-20T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/11
https://scholarship.law.cornell.edu/context/lps_papers/article/1026/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Liability
Pollution damage
Environmental Law
Environmental Law
oai:scholarship.law.cornell.edu:clsops_papers-1020
2010-02-11T21:19:04Z
publication:clsops_papers
publication:facsch
What Kinds of Stock Ownership Plans Should There Be? Of ESOPs, Other SOPs and “Ownership Societies”
Hockett, Robert C.
Present-day advocates of an “ownership society” (OS) do not seem to have noticed the means by which, since the 1930s and 1960s respectively, we have worked to become an OS already where homes and “human capital” are concerned. Nor have those advocates considered whether these same means which amount to publicly augmented private financial engineering might be employed to spread shares in business firms as widely as we have spread homes and higher educations. This Article, the third in a trio of pieces devoted to fleshing out what a contemporary OS consistent with American values, endowment psychology and legal tradition would be, seeks to fill-in that gap. First it shows that there is indeed a gap to be filled that firm-owning remains nowhere near as widespread as home- and human capital-owning. Next the Article shows that the Employee Stock Ownership Plan (ESOP) can be viewed as a tentative first step toward filling that gap. Indeed the ESOP, not accidentally, partly replicates our home- and education-spreading programs but does so in what appears to be needlessly piecemeal, suboptimal fashion.
The ESOP is widely observed to concentrate income-risk, which an OS should spread. Yet more importantly, this Article argues, the ESOP is needlessly unambitious: It confines itself to labor patronage as the sole desert base upon which the reward that is share-spreading is predicated, and to tax-break-assisted firm borrowing as the sole credit base upon which leveraged financing is grounded. But there are many more forms of patronage than labor, and many more bases of credit than share-issuing firms, that we can exploit to complete an OS. The Article accordingly generalizes from the ESOP along two salient dimensions the patronage and credit dimensions in order to complete SOP-financing’s replication of our federal home- and higher education-finance programs. It first proposes a number of analogues to the ESOP grounded upon non-labor patronage forms, then a “capital mortgage” financing program that is the full analogue to our present-day methods of home- and higher education-finance. Our fuller OS, the Article concludes, is a “three-legged stool” that awaits our completing its third leg.
2006-03-24T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/clsops_papers/19
https://scholarship.law.cornell.edu/context/clsops_papers/article/1020/viewcontent/auto_convert.pdf
Cornell Law Faculty Working Papers
Scholarship@Cornell Law: A Digital Repository
Stock ownership plans
Economics
Economics
oai:scholarship.law.cornell.edu:lps_clacp-1027
2006-04-06T13:00:04Z
publication:conf_lec_work
publication:lps_clacp
Reforming UDRP Arbitration: The Suggestions to Eliminate Potential Inefficiency
Cho, Soohye
Even though the Internet has become an integral part of daily life, resolving legal disputes via Internet still remains in the development stage. The legal framework for regulating such Online Dispute Resolution (ODR) has not been established since the Virtual Magistrate Project offered the early ODR program began in 1995. Still, resolving disputes through Internet has been increasing dramatically, especially in the area of Domain Name Disputes. After the Internet Corporation for Assigned Names and Numbers (ICANN) adopted the Uniform Domain Name Dispute Resolution Policy (UDRP) in 1999 , this procedure has been regarded as the most successful ODR to date.
Although UDRP was initiated as a way to provide an inexpensive and quick dispute resolution procedure, it still contains certain potential inefficiencies. These potential inefficiencies can result in lost time as parties try unsuccessfully to resolve the domain name disputes against the UDRP.
This research will analyze the causes behind of that potential inefficiency in UDRP through the comparison with processes used in traditional binding arbitration. After identifying the reasons for potential inefficiencies in the UDRP model, this paper will offer possible suggestions to improve service.
2006-04-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_clacp/8
https://scholarship.law.cornell.edu/context/lps_clacp/article/1027/viewcontent/auto_convert.pdf
Cornell Law School Inter-University Graduate Student Conference Papers
Scholarship@Cornell Law: A Digital Repository
Uniform Domain Name Dispute Resolution Policy
Arbitration
Dispute Resolution
Dispute Resolution and Arbitration
oai:scholarship.law.cornell.edu:lps_papers-1028
2006-04-14T18:05:17Z
publication:lps_papers
publication:stusch
publication:stu_papers
Reform Suggestions on Sample Labor Contracts in China
Li, Lin
The labor relationship is the predominant and fundamental relationship in human society. The regulation of this relationship is the most important to human being’s development.
The regulation of the labor relationship is closely linked to personal basic rights and individual destiny.
To regulate the labor relationship, that is, to establish labor rights and duties, depends on labor laws and labor contracts. But in the long history of China, there has been no labor law and labor contract. Since the open door policy was implemented, labor law and the system of labor contract began slowly. However the situation is still far from satisfactory.
Now, in China, there is a desperate need for appropriate regulation of labor rights and duties.
Thus given the unsound nature of the labor laws and the interrelated systems, it is necessary for labor administration departments to draw up and implement some relatively detailed, scientific, and sound sample labor contracts.
This article presents a draft of a sample labor contract. It is composed by the following parts: 1. The preface. 2. The content of the work. 3. Reward and welfare. 4. Employee’s personal safety. 5. The honest duty of the employee. 6. The termination of the Contract. 7. Labor discipline and labor dispute. 8. The remainder. 9. The ending. 10. Appendixes.
This sample labor contract has wide adaptability, and is not a short-term solution. It should be noted that a good labor contract on paper alone is not the solution. The on-site investigation and statistics implemented in this article show that there are serious problems in the process of implementing labor contracts in China. Therefore some reform suggestions concerning how to properly implement labor contracts are also proposed in this article.
2006-04-13T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/12
https://scholarship.law.cornell.edu/context/lps_papers/article/1028/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
China
Labor Law
Labor and Employment Law
oai:scholarship.law.cornell.edu:lps_papers-1029
2006-05-02T14:05:02Z
publication:lps_papers
publication:stusch
publication:stu_papers
Saddam Hussein's Trial in Iraq: Fairness, Legitimacy & Alternatives, a Legal Analysis
Eckart, Christian
The paper focuses on Saddam Hussein’s trial in front of the Iraqi High Criminal Court in Baghdad. After providing an overview of the facts surrounding the court’s installation, the applicable international law is identified and the fairness and legitimacy of the current proceedings are analyzed. The paper finishes by considering whether the trial should be relocated and addresses alternative venues that could have been chosen to prosecute Iraq’s ex-dictator.
2006-05-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/13
https://scholarship.law.cornell.edu/context/lps_papers/article/1029/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Saddam Hussein
Iraqi High Criminal Court
Iraq
Courts
Criminal Law and Procedure
Human Rights Law
International Law
Jurisdiction
Courts
Criminal Law
Human Rights Law
International Law
Jurisdiction
oai:scholarship.law.cornell.edu:lps_papers-1030
2007-05-10T13:49:38Z
publication:lps_papers
publication:stusch
publication:stu_papers
Bollywood is coming! Copyright and Film Industry Issues Regarding International Film Co-Productions Involving India
Neu, Timm
The Indian film industry produces more movies than any other and is characterized as being on the threshold of emerging as a big market internationally with an expected growth rate of close to 20% per year. Its regulatory and legal mechanisms are developing rapidly to keep pace. This article is dedicated to the Indian film industry and its international potential. It analyzes the copyright aspects of film co-productions involving India and compares the characteristics of the national film industries of Germany, the U.S. and especially India (Bollywood) from a legal perspective. It points to key copyright issues in the field that will become relevant for potential co-producers. It also looks at the basic relevant copyright provisions regarding motion pictures in India, the U.S. and Germany. Also, it points to contractual provisions that should be included in international co-production contracts. Finally, it concludes with the pros and cons of international co-productions with Indian producers from the perspective of U.S. and German production companies.
2007-05-07T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/14
https://scholarship.law.cornell.edu/context/lps_papers/article/1030/viewcontent/Bollywood_is_Coming_Nellco.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Copyright
India
Film industry
Bollywood
Intellectual Property Law
International Law
Intellectual Property Law
International Law
oai:scholarship.law.cornell.edu:lps_LLMGRP-1031
2006-06-23T19:05:14Z
publication:stusch
publication:stu_papers
publication:lps_LLMGRP
Comparative Foreign Direct Investment Law: Determinants of the Legal Framework and the Level of Openness and Attractiveness of Host Economies
Steyt, Jean-Yves P
Foreign direct investment, henceforth denoted FDI, constitutes a basic component of the ongoing economic globalization. The latter phenomenon refers to the increasing economic interdependence of countries in the sense that today goods, services, capital and technologies are exchanged or diffused on a truly global market, accompanied by an unprecedented cross-border flow of human resources.
A large majority of states on every continent have been liberalizing or further liberalizing their investment policies and laws over the last decades. The substantial impact and role of international instruments and organizations on this progressive liberalization process has been stressed on both the global and international regional levels. The narrow interrelation between international investment and international trade, which both constitute key components of the ongoing economic globalization, has accelerated this trend towards more FDI hospitability, i.e., less legal and regulatory FDI barriers.
A country’s FDI framework can theoretically be divided into a certain number of legal components or determinants, both national as well as international. A thorough understanding of those elements facilitates the efficient analyzing of national law in this field. Moreover, those factors constitute as many criteria to measure and define the degree of openness and attractiveness of a country towards FDI inflows and to compare its legal and regulatory framework with that of other states. Understanding the interaction between those different determinants and determining how they can serve to define the specific system of a host economy and its degree of hospitality towards FDI in comparison with other states constitutes the main objective of this paper.
2006-05-19T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_LLMGRP/1
https://scholarship.law.cornell.edu/context/lps_LLMGRP/article/1031/viewcontent/auto_convert.pdf
Cornell Law School LL.M. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Foreign investment
Law and Economics
Law and Economics
oai:scholarship.law.cornell.edu:lps_papers-1032
2013-06-16T21:51:07Z
publication:lps_papers
publication:stusch
publication:stu_papers
Protection of Endangered Species: Sturgeon: Struggle for Survival Has Become Critical
Restivo, Natalia M.
This research is dedicated to the current situation and problems of sturgeon species in Russia, mainly in the Caspian Sea region. In particular, the paper elaborates on the endangered beluga sturgeon. The work describes characteristic features of sturgeon, points out the current problems and proposes some suggestions on preservation efforts in order to improve the critical situation. The research carried out by the author includes a brief consumer survey which exhibits the level of awareness and indicates willingness of the society to maintain the stability and provide sustainable development of the sturgeon species. The author favors and encourages intrinsic value approach to biodiversity and environment, therefore building her analysis around this notion.
2006-06-27T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/15
https://scholarship.law.cornell.edu/context/lps_papers/article/1032/viewcontent/auto_convert.pdf
https://scholarship.law.cornell.edu/context/lps_papers/article/1032/filename/0/type/additional/viewcontent/Restivo_powerpoint.ppt
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Endangered species
Wildlife conservation
Sturgeon
Natural Resources and Conservation
oai:scholarship.law.cornell.edu:lsrp_papers-1022
2011-06-01T16:59:22Z
publication:lsrp_papers
publication:facpub
publication:facsch
Misunderstanding Ability, Misallocating Responsibility
Rachlinski, Jeffrey J.
In the Anglo-American legal tradition, people are responsible for damage caused by their failure to conform their conduct with that of the "reasonable person." With few exceptions, so long as one's conduct conforms to that of the reasonable person, then even if the conduct harms others, it does not create liability. Courts understand that the "reasonable person" is an idealized legal fiction but believe the construct to be a useful way to identify culpable conduct. For the reasonable-person test to be useful, courts must identify the characteristics of this reasonable person. As to cognitive and perceptual abilities, courts endow this hypothetical reasonable person with what they believe are "ordinary" skills and abilities. Recent cognitive psychological research, however, indicates that intuitions about ordinary skills and abilities vastly overstate the cognitive skills people actually possess. Consequently, reliance on intuition and folk wisdom about ordinary abilities leads courts to overattribute accidents to negligent carelessness, rather than unavoidable misfortune.
2005-01-20T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/23
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1022/viewcontent/lsrp_papers23final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Reasonable person
Objectivity
Cognition
Jurisprudence
Jurisprudence
oai:scholarship.law.cornell.edu:lsrp_papers-1021
2010-01-07T17:00:06Z
publication:lsrp_papers
publication:facpub
publication:facsch
Environmental Tribalism
Kysar, Douglas A.
Salzman, James
Recent writings by Dan Farber and J.B. Ruhl have put forward a strong case for "eco-pragmatic" and "radical middle" approaches to environmental policymaking. Rather than debate the merits of such an approach, in this Article we examine whether eco-pragmatic policy development is likely in practice and where it might occur, given the tribal nature of public environmental advocacy. We use the remarkably polarized reaction to Bjorn Lomborg's book, "The Skeptical Environmentalist," as a vehicle to explore the seemingly fundamental divide that exists between warring parties within the environmental law and policy communities. By offering a more complete understanding of why parties involved in environmental policymaking exhibit such stark bipolarism, we seek to help proponents of pragmatic, inclusive approaches to environmental law and policy overcome the field's tribal dynamics.
While many commentators point to the apparently incompatible worldviews of "bean counters" and "tree huggers" as the primary explanation for the lack of a strong middle ground in environmental advocacy, the differences may prove less profound than commonly assumed. After all, like the public at large, bean counters and tree huggers seem to recognize the legitimacy of competing economic and environmental considerations. Thus, rather than simply speaking past one another, disagreement for many advocates seems to be more practical. This usually plays out in contrasting beliefs over the proper manner in which to weigh and compare economic and environmental values, not a dispute concerning the values' existence or their political validity. If this account is accurate, and the divide is less theological than commonly assumed, then space may well exist for some common, pragmatic agreement.
In practice, though, these divisions are widened by a number of social dynamics that frustrate effective public deliberation in the environmental policymaking arena. In particular, we examine the influences of (1) group polarization within environmental policymaking communities, (2) entrepreneurial efforts by interest groups to exploit cognitive heuristics and biases among the public, (3) disputes over proper sources of authority for scientific information, and, finally, (4) the possibility of empirical debates subsuming, and consequently obscuring, more fundamental disputes over cultural or social values. These four barriers act together as an effective "policy cutting gate," shunting advocates into one pen or the other and leaving little space in between for effective advocacy of pragmatic, middle approaches to policy problems.
As a result, we conclude that eco-pragmatists should concentrate their efforts not at the high-profile level of policy formation but, rather, at the level of policy implementation, where relevant actors are less severely influenced by the social dynamics of the cutting gate. Put differently, the target audience for appeals to eco-pragmatic decisionmaking may well be neither Earth First!, nor the Competitive Enterprise Institute, nor even the general public. Rather, the most fertile terrain for balanced, pragmatic governance likely lies below the advocacy radar screen at the level of administrative implementation of environmental policy.
2005-01-20T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/22
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1021/viewcontent/lsrp_papers22final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Environmental Law
Environmental Law
oai:scholarship.law.cornell.edu:lsrp_papers-1023
2006-08-17T14:39:55Z
publication:lsrp_papers
The Limits of Property Reparations
Alexander, Gregory S.
Human history is replete with examples of unjustified expropriations of property by conquering states and other transitory regimes. Only in modern times, however, have nations attempted systematically to remedy historical injustices by providing reparations to the dispossessed owners or their successors. From the aboriginal peoples of the Antipodes to the Native Americans of Canada and the U.S. to the European victims of the German and Soviet communism, groups of people who were stripped of their land and possessions by fraud or force are demanding, and in many cases getting, reparations for these injustices. The thesis of this paper is that the case for reparations for such expropriations of property is highly tenuous, both morally and in practical terms. Reparations claims in general face two serious challenges: human irrationality and the effects of time. While these challenges are not necessarily insuperable, they are formidable.
2003-05-07T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/24
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1023/viewcontent/05_004.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Reparations
Counterfactuals
Property-Personal and Real
Property Law and Real Estate
oai:scholarship.law.cornell.edu:lps_papers-1033
2006-08-30T12:15:03Z
publication:lps_papers
publication:stusch
publication:stu_papers
A Battle Between Geography Indication and Trademark
Xu, Jia
In 2005, Administration for Quality, Supervision, Inspection and Quarantine (AQSIQ) issued “Administrative Regulation on Indications of Original Source and Regulation on Protection of Products from Original Sources,” but “Implementing Rules of the Trademark Law of the People's Republic of China” has included the protection of Geography Indication into the trademark law. The two separate tracks of protection of GI have caused much confusion to the intellectual property right holders regarding their property rights. This thesis introduces and compares the concept of trademark and geography indications, analyzes the current protection mode both in China and abroad and discusses how to eliminate the conflict.
2006-08-27T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/16
https://scholarship.law.cornell.edu/context/lps_papers/article/1033/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Trademark
Geography indication marks
Intellectual Property Law
Intellectual Property Law
oai:scholarship.law.cornell.edu:lps_papers-1034
2006-08-30T12:25:01Z
publication:lps_papers
publication:stusch
publication:stu_papers
A Reflection on the Chinese Green Card System
Xu, Jia
The issuance of Regulations on Examination and Approval of Permanent Residence of Aliens in China marks the establishment of the green card system in China. It aims to attract world talents as well as foreign investment. It is a very important step concerning China’s open-up policy, but we still have a long way to improve the newly-established system.
2006-08-27T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/17
https://scholarship.law.cornell.edu/context/lps_papers/article/1034/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
China
Green cards
Immigration Law
Immigration Law
oai:scholarship.law.cornell.edu:clsops_papers-1022
2010-02-11T21:17:58Z
publication:clsops_papers
publication:facsch
Minding the Gaps: Fairness, Welfare, and the Constitutive Structure of Distributive Assessment
Hockett, Robert C.
Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE).
A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours with locutions of the form “warmth versus clothing” or “35 mph versus tennis balls.” Framing disputes in this way leads us nowhere. It only miscarries our thinking.
A more venerable source of perplexity is found in the hallowed Pareto criterion (PC) and its conceptual kin. One proffered advantage of the PC is its purportedly enabling “us” to sidestep contested questions of interpersonal comparison, aggregation and distribution. But what manner of collective agent – what “we” – might plausibly be expected to take interest in unavoidably resource-distributive prescriptions, without view to the propriety with which these treat each member of the collectivity effectively addressed by the prescriptions, is left unidentified. And as soon as we plausibly fill-in the gap, the PC and kin prove prescriptively sterile. We get nowhere until we confront distributions – and de facto distributors – head-on.
This Mongraph seeks to lay out with some care both when, and how, such confronting should be done. It specifies both the conditions, and the appropriately structured mode of analysis, under which distributive-ethical assessment is called for and apt to bear fruit. The means to success lie in carefully mapping the constitutive structure – the full valence grammar – of distribution-implicative claims.
Effectively normative claims concerning distributions wrought by legal rules, programs or policies, if they would be so much as cognitively complete let alone ethically assessable, must assign values to all variables opened by the case grammar of “to distribute” and cognate infinitives – “to allocate,” “to apportion,” “to mete out,” etc. They must, that is, determinately and inter-compatibly indicate to whom claims are in effect being addressed, what is effectively being distributed, pursuant to what pattern the latter is being distributed, by what means and to whom. To be normatively defensible, in turn, such claims must not only carefully specify, but also must ethically justify, the jointly compatible values they proffer for filling those variables.
The normative payoff of the mode of analysis proposed here is a compelling distributive ethic, a means of rendering past and present foundational disputes both tractable and conclusively resoluble, and in the end a new research agenda for what the Article labels an “ethically intelligible law and economics.”
2006-09-26T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/clsops_papers/21
https://scholarship.law.cornell.edu/context/clsops_papers/article/1022/viewcontent/Minding_the_Gaps_Monograph.pdf
Cornell Law Faculty Working Papers
Scholarship@Cornell Law: A Digital Repository
Administrative Law
Economics
Law and Economics
Law and Society
Legislation
Politics
Public Law and Legal Theory
Social Welfare
Administrative Law
Economics
Law and Economics
Law and Politics
Law and Society
Legislation
Public Law and Legal Theory
Social Welfare Law
oai:scholarship.law.cornell.edu:lsrp_papers-1024
2007-10-24T12:50:32Z
publication:lsrp_papers
The Impossibility of a Prescriptive Paretian
Hockett, Robert C.
Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely.
2007-10-23T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/25
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1024/viewcontent/06_027.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Paretianism
Welfarism
Jurisprudence
Law and Economics
Law and Society
Public Law and Legal Theory
Jurisprudence
Law and Economics
Law and Society
Public Law and Legal Theory
oai:scholarship.law.cornell.edu:lps_papers-1035
2006-09-18T20:10:36Z
publication:lps_papers
publication:stusch
publication:stu_papers
Defense of Superior Orders in International Criminal Law as Portrayed in Three Trials: Eichmann, Calley and England
Restivo, Natalia M.
The paper is dedicated to the defense of superior orders in international law. The author discusses attempts to use this defense in three trials, - Adolf Eichmann's, William Calley's and Lynndie England's. The paper juxtaposes the trials and provides conclusions on the success of this defense in each case.
2006-09-12T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/18
https://scholarship.law.cornell.edu/context/lps_papers/article/1035/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Superior orders
William Calley
Adolf Eichmann
Lynndie England
War crimes
Military Law
Military, War, and Peace
oai:scholarship.law.cornell.edu:lsrp_papers-1025
2011-06-01T16:26:36Z
publication:lsrp_papers
publication:facpub
publication:facsch
Fraud by Hindsight
Gulati, G. Mitu
Rachlinski, Jeffrey J.
Langevoort, Donald C.
In securities-fraud cases, courts routinely admonish plaintiffs that they are not permitted to rely on allegations of "fraud by hindsight." In effect, courts disfavor plaintiffs' use of evidence of bad outcomes to support claims of securities fraud. Disfavoring hindsight evidence appears to tap into a well known, well-understood, and intuitively accessible problem of human judgment of "20/20 hindsight." Events come to seem predictable after unfolding, and hence, bad outcomes must have been predicted by people in a position to make forecasts. Psychologists call this phenomenon the hindsight bias. The popularity of this doctrine among judges deciding securities cases suggests that judges actively seek techniques that enable them to correct for psychological biases that might otherwise affect their decision-making. This paper assesses the hypothesis that judges have adopted the "fraud-by-hindsight" doctrine so as to avoid erroneous judgment infected with the hindsight bias. We find that although judges have identified a real problem in human judgment, they are not developing a doctrine to remedy the influence of hindsight on judgment. Rather, they are using this problem of human judgment as the justification for expanding their authority to manage the complex, high-stakes securities cases that come before them. The result provides judges with the greater case-management authority they seek, but leaves the securities litigation without a meaningful doctrine to ameliorate the influence of hindsight on judgment.
2005-02-21T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/26
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1025/viewcontent/lsrp_papers26final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Fraud
Psychology and Psychiatry
Securities Law
Law and Psychology
Securities Law
oai:scholarship.law.cornell.edu:lsrp_papers-1028
2006-09-22T20:07:52Z
publication:lsrp_papers
On-line Consumer Standard-Form Contracting Practices: A Survey and Discussion of Legal Implications
Hillman, Robert A.
In a recent article, Standard-Form Contracting in the Electronic Age, 77 N.Y.U. L. Rev. 429 (2002), Jeffery Rachlinski and I analyzed whether contract law's approach to the problem of paper standard forms can effectively govern electronic forms. We thought the rational and cognitive reasons consumers fail to read their paper forms apply in the e-environment. Further, although e-consumers do not face manipulative sales agents or impatient customers waiting in line but, instead, largely contract at home in the evening without time constraints, e-consumers are impatient, even click happy, and therefore still do not read their forms or shop for the best terms. Relying on these assumptions about how consumers treat their e-standard forms and evidence concerning how e-businesses use the Internet, we concluded that Internet contracting is not fundamentally different from the paper world. Accordingly, major changes in the approach of contract law are not imperative.
This paper tests our assumptions about consumer behavior when agreeing to e-standard forms by offering some empirical evidence of consumer practices. I report on a survey of 92 contracts students' e-standard form practices. The survey inquired about all aspects of their practices, including frequency of contracting, the place and time of such contracting, whether they read their e-forms or shop for terms, the reasons for reading or failing to read, and the factors that would promote reading.
Although the survey results reinforce our assumption that consumers generally do not read their e-standard forms, the truth is a bit more complicated. A large majority of respondents purchase at night and at home. Nevertheless, few respondents read their e-standard forms beyond price and description of the goods or services "as a general matter." Further, beyond price and description, a large minority of respondents do not read their forms at all. However, more than a third of the respondents read their forms when the value of the contract is high and more than a third read when the vendor is unknown. Further, a small cadre of respondents read particular terms beyond price and description, primarily warranties and product information warnings. On the other hand, virtually no respondents read choice of law/forum or arbitration clauses.
The survey also reveals that impatience accounts most often for the failure of respondents to read their forms. Not surprisingly, respondents rarely shop for advantageous terms, despite the greater availability of terms on the Internet.
The paper concludes by analyzing possible legal responses to e-standard form contracting in light of the survey results.
2005-03-15T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/29
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1028/viewcontent/05_012.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Internet commerce
Contracts
Contracts
oai:scholarship.law.cornell.edu:lsrp_papers-1027
2009-11-30T21:29:20Z
publication:lsrp_papers
publication:facpub
publication:facsch
The Reliability of the Administrative Office of the U.S. Courts Database: An Initial Empirical Analysis
Eisenberg, Theodore
Schlanger, Margo
Researchers have long used federal court data assembled by the Administrative Office of the U.S. Courts (AO) and the Federal Judicial Center (FJC). The data include information about every case filed in federal district court and every appeal filed in the twelve non-specialized federal appellate courts. The varied uses of the AO database have led to its being called "by far the most prominent" database used by legal researchers for statistical analysis of case outcomes. Like many large data sets, the AO data are not completely accurate. Some reports exist relating to the AO data's reliability, but no systematic study of the AO's non-bankruptcy data has been published. In the course of a substantive study of federal litigation brought by inmates, one of us began to investigate the nature and rate of errors, exploiting a technological innovation in federal court records: the availability of docket sheets over the Internet via the federal judiciary's Public Access to Court Electronic Records project (PACER). This Article follows a similar method to begin more comprehensively the process of assessing the AO data's reliability.
Our study looks at two large categories of cases, torts and inmate civil rights, and separates two aspects of case outcomes: which party obtained judgment and the amount of the judgment when plaintiffs prevail. With respect to the coding for the party obtaining judgment, we find that the AO data are very accurate when they report a judgment for plaintiff or defendant, except in cases in which judgment is reported for plaintiff but damages are reported as zero. As to this anomalous category (which is far more significant in the inmate sample than in the torts sample), defendants are frequently the actual victors in the inmate cases. In addition, when the data report a judgment for "both" parties (a characterization that is ambiguous even as a matter of theory), the actual victor is nearly always the plaintiff. Because such cases are quite infrequent, this conclusion is premised on relatively few observations and merits further testing.
With respect to award amounts, we find that the unmodified AO data are more error prone, but that the data remain usable for many research purposes. While they systematically overestimate the mean award, the data apparently yield a more accurate estimate as to median awards. Researchers and policymakers interested in more precise estimates of mean and median awards have two reasonably efficient options available. First, as described below, they can exclude two easily identified classes of awards with evidently suspect values entered in the AO data. Second, using PACER or courthouse records, they can ascertain the true award only in the suspect cases without having to research the mass of cases. Either technique provides reasonable estimates of the median award. The second technique may provide a reasonable estimate of the mean award, at least for some case categories.
2005-02-22T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/28
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1027/viewcontent/lrsp_papers28final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Administrative Office of the U.S. Courts
Federal Judicial Center
Judicial statistics
Partnerships
oai:scholarship.law.cornell.edu:lsrp_papers-1026
2009-11-24T13:22:00Z
publication:lsrp_papers
publication:facpub
publication:facsch
Professionalism as Interpretation
Wendel, W. Bradley
In this Article, I defend the interpretive attitude of professionalism. Professionalism is a stance toward the law which accepts that a lawyer is not merely an agent of her client. Rather, in carrying out her client's lawful instructions, a lawyer has an obligation to apply the law to her client's situation with due regard to the meaning of legal norms, not merely their formal expression. Professionalism requires a lawyer acting in a representative capacity to respect the achievement represented by law, namely the final settlement of contested issues (both factual and normative) with a view toward enabling coordinated action in our highly complex, pluralistic society. This social function of law gives it legitimacy, in the sense that the law becomes worthy of being taken seriously, interpreted in good faith with due regard to its meaning, and not simply seen as an obstacle standing in the way of the client's goals. The grounds for the authority of law entail a conception of lawyers as custodians of the law, which in turn entails principles of legal interpretation that constrain the manipulation of legal norms to serve the ends of clients.
The jurisprudential argument in the Article relies on the nature of language and its inability to capture the full range of meaning that a text must bear. In other words, there is no such thing as a self-interpreting legal text that regulates the actions of lawyers or clients apart from the exercise of interpretive judgment by a community of professionals. As a consequence, the law cannot operate as a device to settle normative conflict and coordinate activity without a commitment on the part of law-interpreters to respect the substantive meaning standing behind the formal expression of legal norms. This theory of interpretation stands in contrast to the prevailing belief of many scholars and practicing lawyers, which can be labeled legal realism, law-as-price, or the Holmesian bad man view of law. This view regards the law as functioning in practical reasoning as only one cost among many, and not as the expression of a view that individuals should, or should not do something. Professionalism, by contrast, requires lawyers to treat the law as having normative significance as such.
After first considering a simple hypothetical case, the Article takes up three recent controversies - tax shelters, the Enron transactions, and the torture memos prepared by Justice Department lawyers - that show clearly the distinction between professionalism in interpretation and the Holmesian bad man stance toward the law. In my view, if the lawyers involved in those cases deserve moral criticism, it is not due to the moral wrongfulness of the clients' ends, but for failing in their responsibilities to treat the law as legitimate.
This paper is an updated version of a work-in-progress previously published on SSRN under the title The Jurisprudence of Enron: Professionalism as Interpretation.
2005-02-16T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/27
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1026/viewcontent/lrsp_papers27final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Philosophy of law
Jurisprudence
Jurisprudence
oai:scholarship.law.cornell.edu:lsrp_papers-1029
2010-01-07T20:04:57Z
publication:lsrp_papers
publication:facpub
publication:facsch
Judges, Juries, and Punitive Damages: Empirical Analyses Using the Civil Justice Survey of State Courts 1992, 1996, and 2001 Data
Eisenberg, Theodore
Hannaford, Paula L
Heise, Michael
LaFountain, Neil
Ostrom, Brian
Wells, Martin T
Munsterman, G. Thomas
We analyze thousands of trials from a substantial fraction of the nation's most populous counties. Evidence across ten years and three major datasets suggests that: (1) juries and judges award punitive damages in approximately the same ratio to compensatory damages, (2) the level of punitive damages awards has not increased, and (3) juries' and judges' tendencies to award punitive damages differ in bodily injury and no-bodily-injury cases. Jury trials are associated with a greater rate of punitive damages awards in financial injury cases. Judge trials are associated with a greater rate of punitive damages awards in bodily injury cases.
2006-07-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/30
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1029/viewcontent/lsrp_papers30final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Punitive damages
Juries
Judges
Judges
oai:scholarship.law.cornell.edu:lsrp_papers-1030
2010-01-08T18:56:50Z
publication:lsrp_papers
publication:facpub
publication:facsch
Sustainable Development and Private Global Governance
Kysar, Douglas A.
This Article utilizes recent controversy over Coca-Cola's alleged depletion of groundwater resources in India as a vehicle for exploring competing conceptions of global environmental governance and the role of private actors within them. Initially, it uses the Coca-Cola groundwater situation to identify core substantive and procedural meanings that lurk within the otherwise ingeniously ambiguous concept of sustainable development. Through this exercise, it is shown that - when properly understood - the sustainable development paradigm stands in considerable tension with the premises of market liberalism that drive such political and economic trends as global market integration; privatization and commodification of water and other natural resources; and cost-benefit review of environmental, health, and safety regulations. By clarifying this and other points of normative and empirical disagreement between sustainable development and market liberalism, this Article aims to provide an impetus and an outline for more searching inspection of both frameworks.
In addition, this Article also seeks to describe, and to a lesser extent defend, a growing effort among proponents of sustainable development to adapt their sustainability goals to the framework of market liberalism itself. Specifically, by promoting various methods of downstreaming information regarding social and environmental impacts of production to individuals acting in market capacities, these proponents hope to inspire governance mechanisms that better resonate with the market-liberal grundnormen of consumer sovereignty and shareholder supremacy. Again using the Coca-Cola groundwater situation as an example, this Article speculates that promotion of conscientious consumption and socially responsible investment in this manner ultimately may prove more significant than any number of attempts to refine the conceptual meaning of sustainability. Although handicapped in obvious ways by their dependence on altruistic economic gestures to overcome dramatic collective action problems, these campaigns to encourage publicly-oriented market behavior do have the great virtue of avoiding head-on confrontation between the competing theoretical conceptions of sustainable development and market liberalism - a confrontation that observers increasingly seem to suspect would favor market liberalism.
2005-06-29T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/31
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1030/viewcontent/lsrp_papers31final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Sustainable development
Market liberalism
Economics
Environmental Law
Economics
Environmental Law
oai:scholarship.law.cornell.edu:lsrp_papers-1031
2010-02-02T17:10:37Z
publication:lsrp_papers
publication:facpub
publication:facsch
The Expectations of Consumers
Kysar, Douglas A.
In the few years following promulgation of the Restatement (Third) of Torts: Products Liability, several courts have reaffirmed their allegiance to the consumer expectations test for product design defect liability, while rejecting the Restatement's contrary recommendation to adopt a design defect test that focuses primarily on technical features regarding the risk and utility of alternative product designs. In this Article, Professor Kysar reviews the post-Third Restatement decisions, identifying within them a common failure to articulate a coherent, independent doctrinal role for the consumer expectations test, despite the courts' clearly expressed desire to do so. In Kysar's view, courts adhering to the consumer expectations test are correct to sense that the reasonable alternative design standard of the Third Restatement offers an inappropriately constrained basis for evaluating product designs. The consumer expectations test that they offer in its place, however, provides only an amorphous and ill-explained doctrinal formulation that repeatedly seems to collapse into the very Restatement framework that it purports to reject. Kysar seeks to overcome these failings of the consumer expectations doctrine by identifying a conceptually distinct, normatively desirable role for the doctrine to play within products liability law: The consumer expectations test should be redirected toward important cognitive and behavioral phenomena regarding the manner in which individuals evaluate risk, phenomena that are not as readily subsumed within the more analytically-rigid risk-utility test.
2003-11-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/32
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1031/viewcontent/lsrp_papers32final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Consumer Protection Law
Products Liability
Consumer Protection Law
Torts
oai:scholarship.law.cornell.edu:lps_papers-1036
2006-12-21T16:15:18Z
publication:lps_papers
publication:stusch
publication:stu_papers
The Definition and Jurisdiction of the Crime of Aggression and the International Criminal Court
Baek, Buhm-Suk
The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court that was held in Rome to establish the International Criminal Court in 1998 finally adopted the Rome Statute with the participation of 160 countries. The Rome Statute of the ICC entered into force on 1 July 2002 and has been ratified by 100 States. What was considered not so long ago merely a dream of a few people has become a reality after the strenuous efforts of the UN over 50 years. However, one central issue still remains unresolved in the Rome Status. It is the crime of aggression. Countries that participated in the Rome Conference agreed to that compromise just in order to secure the conclusion of the Statute after they had reached a deadlock over the crime of aggression. Adoption of the Rome statute without containing an applicable provision on the crime of aggression, once expressed as the “Supreme International Crime,” was a main defect in the Statute. Without the punishment of the crime of aggression, the ICC would not really have the ultimate, long-awaited international criminal jurisdiction.
The definition and jurisdiction of the crime of aggression has always been an extremely difficult issue to settle. The history of the search for an appropriate and effective definition and jurisdiction of the crime of aggression will be reviewed in this paper; it is not a purely legal issue, but it is intertwined with political elements. The research objective of this thesis is to clarify the terms of the ongoing debate over the crime of aggression, and to facilitate a better understanding about the crime of aggression, in an ad hoc working group open to all member states of the U.N. It is important to confirm the current controversial issues of the crime of aggression and present a desirable definition and jurisdiction of it. A credible, carefully discussed, precise definition and jurisdictions of the crime of aggression, one that reflects customary international law and respects the U.N. Charter’s integrity and the Security Council’s responsibility for the maintenance of international peace and security, would enhance the prospects to define the crime of aggression in the Rome Statute and the possibility of other U.N. member states’ ratifying it, including the U.S. Also, it would strengthen the prospects for the eventual successful prosecution of crimes of aggression.
First, this paper will review and analyze the general characteristics of the crime of aggression and the historical background of the crime of aggression (from the Nuremberg Military Tribunal to the Rome Statute) in part II. Part III covers the definition of the crime of aggression in light of proposals in the Preparatory Commission (from 1st to 10th) and discussions in the ad hoc working group (from 1st to 4th) and elements of this crime. Part IV discusses the relationship between the ICC and the Security Council from the various points of view concerning the competence of ICC and Security Council, under the U.N. Charter. Finally, through these procedures, this paper will confirm and inquire the current moot issues and suggests desirable a definition and conditions of the crime of aggression in part V.
Based on the research outlined above, this paper concludes that concerning the definition of the crime of aggression, first the definition of this crime should follow the “generic approach.” Second, the crime of aggression and the act of aggression should be separately stipulated in the definition. That is, the crime of aggression should contain the provisions included in the Nuremberg Charter and also reflect the general recognition on it developed up the point of current circumstances. The act of aggression should follow the provisions of precedents such as resolution 3314(XXIX) of 1974 and the ILC Draft Code of Crimes against the Peace and Security of Mankind 1996. Third, the definition of the crime of aggression should comply with the principle of legality. Thus essential material and mental elements of crime should be included in it.
Concerning the jurisdiction of the Crime of aggression, this paper concludes that first the Security Council’s primary responsibility for determining the existence of the state aggression should be confirmed. Second, the Security Council’s exclusive right to make such determinations should be denied and there should be a provision which make legally possible for the General Assembly of the UN or the ICJ to make such determinations in case of absence of the determination from the Security Council. Third, to decide whether to give such secondary right to the General Assembly of the UN or the ICJ should be settled by a political compromise through a structured and clear debate and the room for such debate should be opened not only to the state party to the Rome Statute, but also to all UN members.
2006-12-14T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lps_papers/19
https://scholarship.law.cornell.edu/context/lps_papers/article/1036/viewcontent/auto_convert.pdf
Cornell Law School J.D. Student Research Papers
Scholarship@Cornell Law: A Digital Repository
Crime of aggression
International Law
Jurisdiction
International Law
Jurisdiction
oai:scholarship.law.cornell.edu:lsrp_papers-1032
2010-02-18T21:07:56Z
publication:lsrp_papers
publication:facpub
publication:facsch
Three Reasons Why Even Good Property Rights Cause Moral Anxiety
Sherwin, Emily
Entirely apart from the substantive justification for existing private property rights, there are several reasons why property is, unavoidably, a morally uncomfortable subject.
First, legal property rights are and must be the products of determinate legal rules. As such, they inevitably will diverge in some of their applications from the moral principles that support them.
Second, property rights suffer, more than other legal rights, from problems of transition. Most or all justifications for private property envisage secure rights on which people can and will rely. As a result, there may be genuine moral value in the preservation of rights that were not morally justifiable at their point of origin.
Finally, property rights expose fundamental conflicts among the different conceptions of justice - distributive, corrective, and retributive justice - that guide our system of law.
It follows that even if private property rights are in fact morally justified, they are likely to generate moral unease.
2007-04-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/33
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1032/viewcontent/2007_01.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Property-Personal and Real
Property Law and Real Estate
oai:scholarship.law.cornell.edu:lsrp_papers-1034
2010-03-02T18:32:38Z
publication:lsrp_papers
publication:facpub
publication:facsch
How to Create a Commercial Calamity
Hillman, Robert A.
There are many ways to define a legal calamity. For example, a grossly unfair or inefficient law constitutes a legal calamity. A law that produces serious and deleterious unintended effects, such as effects opposite from those intended, is another kind of legal calamity. A law that is so imprecise and confusing that judges do not know how to apply it and lawyers do not know how to advise their clients is still another example of a legal calamity, which I focus on in this paper. Because this paper is a contribution to a symposium on commercial legal calamities, my example is Uniform Commercial Code (UCC) section 2-209, dealing with contract modification and waiver. But my goal is not to explain why 2-209 is a calamity of the third kind - everybody already knows that it is. I use the section to illustrate the kind of strategy of lawmaking that cannot fail to create a calamity of obfuscation. Section 2-209 illustrates what happens when lawmakers who boldly seek to reform the law cannot bring themselves to carry out their plan or never fully understand the ramifications of what they are doing. Instead, they waiver. The result is chaos - a commercial calamity.
2007-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/35
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1034/viewcontent/2007_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Commercial Law
Commercial Law
oai:scholarship.law.cornell.edu:lsrp_papers-1033
2007-01-25T21:15:06Z
publication:lsrp_papers
Demystifying Legal Reasoning: Part II
Alexander, Larry
Sherwin, Emily
"Demystifying Legal Reasoning" defends the proposition that there are no special forms of reasoning peculiar to law. Legal decisionmakers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. Part II (abstracted here) addresses common law reasoning, when prior judicial decisions determine the law. Part III addresses interpretation of texts. We conclude that, in both areas, the popular view that legal decisionmakers practice special forms of reasoning are false.
In Chapter 2, we propose that there are two plausible models of common law reasoning, and only two. One is the natural model, in which courts resolve disputes by deciding what outcome is best, all things considered. The other is the rule model, in which courts treat rules announced by prior courts as serious rules of decision, then revert to natural decisonmaking when rules provide no answers. Despite the inescapable flaws of serious judicial rules, the rule model of common-law decisionmaking has advantages that we believe justify courts in adopting it.
In Chapter 3, we explain why other supposed methods of legal reasoning are spurious. Analogical decisionmaking based on factual similarity between cases is either intuitive or deductive. If the process of identifying important similarities is intuitive, the precedent case does not constrain the outcome of the new case in any predictable or even detectable way. If the process is deductive, it is the rules or principles that govern similarity, rather than the outcome of the precedent.
We also reject the possibility of reasoning from legal principles. As a matter of logic, legal principles cannot operate in the way their proponents suggest, as a medium by which past decisions constrain the outcome of natural reasoning in current cases. The notion of weight is too elusive, and the criterion of fit with prior decisions is too malleable, to sustain the argument that legal principles guide judges in reaching decisions. Moreover, if legal principles could in fact effectively constrain decisionmaking, their effects would be pernicious: legal principles entrench past errors without securing the benefits associated with legal rules.
In Chapter 4, we address both the problems judges face as rulemakers and the descriptive gap between the rule model of decisionmaking we have proposed and prevailing judicial practice. Practices that appear to contradict the rule model of decisionmaking may have developed in response to the special problems that arise when a single authority must both resolve a particular dispute and also announce rules for a broader class of future cases.
2006-01-12T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/34
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1033/viewcontent/06_002.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Legal reasoning
Jurisprudence
Jurisprudence
oai:scholarship.law.cornell.edu:lsrp_papers-1035
2010-03-02T19:19:35Z
publication:lsrp_papers
publication:clsops_papers
publication:facsch
The Status of WTO Rules in U.S. Law
Barceló III, John J.
Under U.S. implementing legislation and recent court decisions the WTO agreements and rulings have neither direct nor even indirect effect within the U.S. legal system. Political-economic theory can explain this result and the paradox of Congressional support (even mandate) for the more legally binding WTO dispute settlement regime that emerged from the Uruguay Round appearing side-by-side with Congressional insistence on a firewall of separation between WTO law and the U.S. legal system. It can also explain the few exceptional cases - for example, the TRIPS and Government Procurement Agreements - in which the parties adopted a form of quasi-direct effect. The non-direct-effect result for the WTO as a whole (in both the U.S. and the EU) contrasts sharply with court-mandated direct effect for the EC Treaty in the EU - a result that transformed the EU into a law-based quasi-federation. But whereas the EU is an integral, constitutive regime, premised on member-state commitment to community-level welfare - a regime hospitable to direct effect - the WTO remains a bargained-for, reciprocal, largely non-constitutive regime, in which the absence of direct effect operates as a kind of safety value allowing parties to undertake more ambitious liberalization. For integrated, thickly interdependent communities like the EU the rule of hard law (direct effect) is appropriate. But for less integrated, more loosely interdependent communities, such as the global trading system - a soft law regime more reliant on executive branch commitment and good will for its effectiveness seems inevitable, at least for the near term and from a U.S. perspective. These themes are developed in the paper in three parts: the first addresses the U.S. law concerning direct and indirect effect for WTO agreements and rulings. The second develops a political-economic explanation for the absence of WTO direct and indirect effect in U.S. law. The third discusses the prospects for including direct or indirect effect for WTO agreements and rulings in a future multilateral agreement.
2006-01-06T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/36
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1035/viewcontent/06_004.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
World Trade Organization
Trade Regulation
Antitrust and Trade Regulation
oai:scholarship.law.cornell.edu:lsrp_papers-1038
2007-01-26T14:04:07Z
publication:lsrp_papers
Substitute Chancellors: The Role of the Jury in the Contest between Common Law and Equity
Meyler, Bernadette A.
The common law - thought to provide an ancient constitution securing the liberties of the people from monarchical tyranny - and opposition against it, played an acknowledged part in the debates among Royalists, Parliamentarians, and Puritans during seventeenth-century England. Very little attention has, however, been devoted to the status of the jury within these arguments either for the supremacy of the common law or for the King's prerogative, institutionally embodied most prominently in the Star Chamber and the Court of Chancery. As this Article argues, the procedural virtues and the philosophical goals of the jury and of the Chancellor as expressed by their advocates were very similar, but the disparities in the origins of their authority - the jury a body designed to represent local men of the community and the Chancellor considered almost a cipher for the King - led opponents in the English Revolution and its aftermath to resist one institution or the other. Fluctuations in the relative strength and weakness of the common law jury and judges in equity thus came to depend on political struggles rather than disagreement about methods of adjudication. As a result, by the time of the Founding, opponents of the proposed Supreme Court expressed their reservations about its elevated status and its jurisdiction over fact and law by raising the specter of Chancery and its association with monarchical power.
2006-02-10T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/39
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1038/viewcontent/06_007.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Jury
Equity
England
Legal History
Legal History
730518/oai_dc/100//