2024-03-29T07:39:51Z
http://scholarship.law.cornell.edu/do/oai/
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
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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
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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-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
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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
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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: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
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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
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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-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
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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: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: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-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: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-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-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: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-1037
2010-03-02T19:12:46Z
publication:lsrp_papers
publication:facpub
publication:facsch
Institutional and Individual Justification in Legal Ethics: The Problem of Client Selection
Wendel, W. Bradley
Monroe Freedman is well known as a proponent of the "standard conception" of legal ethics - that is, that a lawyer cannot be criticized in moral terms for actions taken in a representative capacity. Surprisingly, however, Freedman has argued that client selection is a decision for which a lawyer may be required to provide a justification in ordinary moral terms. This apparent inconsistency reveals a conceptual distinction in normative ethical theory, which is often blurred, between justifying a practice (in this case, the legal system or some specialized practice such as criminal defense) and justifying an action falling within the practice (here, either actions of a lawyer while representing a client or the decision to accept or decline the representation of a client). A practice as a whole must be justified on the basis of moral concepts, such as consequences, rights, and other values. Once a practice exists, however, particular "moves" within the practice are justified on the basis of the constitutive rules which make up the practice, not on the basis of underlying moral concepts. This is the practice conception of rules, defended by John Rawls in an influential 1955 paper.
This paper makes two arguments - one metatheoretical and one a substantive argument within legal ethics. The methodological or metatheoretical argument is that professional ethics should proceed at one level of abstraction or another, but not equivocate back and forth between them. One can give systemic reasons why a lawyer ought to act on rules of a practice, and not on the basis of an all-things-considered moral evaluation of what she ought to do in the situation. Once committed to this style of reasoning, however, consistency demands that the frame of reference for the argument not suddenly be shifted to ordinary moral considerations. On the other hand, one might believe that clarity or some other consideration demands addressing questions of professional ethics exclusively in terms of first-order moral values. If one adopts that stance, however, it is impermissible to appeal to blanket permissions on the basis of the rules of the game. Every action must be justified on an all-things-considered basis. Subtle shifting between the two levels of justification creates unnecessary confusion, and may account for the occasionally frustrating nature of debates in legal ethics, where the participants seem to be talking past each other. Moreover, it is part of the general pattern of ethical justification in the public domain - including political and legal ethics - that the primary focus of evaluation is the institutional structure through which action occurs. This evaluative perspective, which is one rough distinction between political and moral philosophy, excludes from deliberation the full range of reasons that would ordinarily be relevant in practical reasoning. The client-selection debate, like any controversy within legal ethics, should therefore be resolved not as a matter of straightforwardly applying ordinary moral values, but in the way suggested by Rawls, with due attention given to the institutional setting of the action.
The substantive argument within legal ethics is that the concept of agency does not require that a practice build in significant opportunities for the exercise of judgment on the basis of ordinary moral values. Reflective self-consciousness, which is constitutive of moral agency, is consistent with opting into a practice at a relatively high level of generality, and considering onself bound by the rules of the game. At the very least, whatever one may say in terms of moral agency, in support of an argument that a lawyer has moral discretion in client selection, can be said in support of an argument that a lawyer ought not to follow the standard conception while acting in a representative capacity. Client selection and representation stand or fall together, from the point of view of their effect on agency.
2006-04-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/38
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1037/viewcontent/2006.03.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Legal ethics
Monroe Freedman
Legal Profession
Legal Ethics and Professional Responsibility
oai:scholarship.law.cornell.edu:lsrp_papers-1044
2010-01-18T18:09:20Z
publication:lsrp_papers
publication:facpub
publication:facsch
Xenophilia or Xenophobia in American Courts? Before and After 9/11
Clermont, Kevin M.
Eisenberg, Theodore
This article revisits the controversy regarding how foreigners fare in U.S. courts. The available data, if taken in a sufficiently big sample from numerous case categories and a range of years, indicate that foreigners have fared better in the federal courts than their domestic counterparts have fared. Thus, the data offer no support for the existence of xenophobic bias in U.S. courts. Nor do they establish xenophilia, of course. What the data do show is that case selection drives the outcomes for foreigners. Foreigners' aversion to U.S. forums can elevate the foreigners' success rates, when measured as a percentage of judgments rendered. Yet that aversion waxes and wanes over the years, having generally declined in the last twenty years but with an uptick subsequent to 9/11. Accordingly, that aversion has caused the foreigners' advantage to follow the same track.
2007-07-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/45
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1044/viewcontent/2007_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Courts
Courts
oai:scholarship.law.cornell.edu:lsrp_papers-1046
2010-03-03T20:56:08Z
publication:lsrp_papers
publication:facpub
publication:facsch
Legal Taxonomy
Sherwin, Emily
This essay examines the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge. The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making. The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview of the body of legal doctrine. The third possibility is a reason-based taxonomy that classifies legal rules and decisions according to the moral principles or “legal principles” thought to justify them. Reason-based taxonomy of this type offers courts a set of high-level decisional rules drawn from legal data. Its objective is to guide courts in deciding new cases and evaluating precedents. A predominantly formal taxonomy facilitates legal analysis and communication. A functional taxonomy can assist those who make and apply law by providing a purposive overview of the field. Reason-based taxonomy may be useful to lawmakers but is unhelpful when offered as a guide to adjudication of disputes.
2009-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/47
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1046/viewcontent/2009_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Legal taxonomy
Jurisprudence
Jurisprudence
Legal History
oai:scholarship.law.cornell.edu:lsrp_papers-1040
2007-01-29T15:36:54Z
publication:lsrp_papers
publication:facpub
publication:facsch
Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes
Eberhardt, Jennifer L.
Davies, P G
Purdie-Vaughns, Valerie J.
Johnson, Sheri Lynn
Researchers previously have investigated the role of race in capital sentencing, and in particular, whether the race of the defendant or victim influences the likelihood of a death sentence. In the present study, we examined whether the likelihood of being sentenced to death is influenced by the degree to which a Black defendant is perceived to have a stereotypically Black appearance. Controlling for a wide array of factors, we found that in cases involving a White victim, the more stereotypically Black a defendant is perceived to be, the more likely that person is to be sentenced to death.
2006-05-10T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/41
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1040/viewcontent/06_012.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Capital punishment
Race
Criminal Law and Procedure
Criminal Law
oai:scholarship.law.cornell.edu:lsrp_papers-1041
2010-03-02T20:46:54Z
publication:lsrp_papers
publication:facpub
publication:facsch
Forty Years of Codification of Estates and Trusts Law: Lessons for the Next Generation
Alexander, Gregory S.
Fellows, Mary L.
In this paper we develop two theses. First, we argue that uniform law proposals that ask courts and practitioners to abandon revered legal traditions and ways of thinking about estates and trusts, even when they are intent-furthering proposals, face resistance until in time the glories of the past and the risks of a new legal regime fade in importance in legal thought. Second, we argue that, especially within an environment in which states seek to gain competitive advantage over their counterparts in other states, the glories of the past and the risks of a new legal regime fade fastest when a uniform law proposal limits the effect of intent-defeating rules. Uniform laws tend to fall into three categories: (1) statutes that usurp older statutory-based laws; (2) statutes, typically remedial in nature, that reverse the common law; and (3) statutes that predominantly codify the common law. We look at examples of each to show how the interplay between revered legal traditions and donative freedom affects the reception of uniform law proposals. We also pay particular attention to intent-defeating common law doctrines and the risks that uniform law drafters face when they attempt to codify them in an environment where there is stiff jurisdictional competition for estate planning business.
2006-07-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/42
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1041/viewcontent/2006_03.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Uniform law
Law reform
Estate Planning and Probate
Trusts
Estates and Trusts
oai:scholarship.law.cornell.edu:lsrp_papers-1042
2010-03-02T20:53:26Z
publication:lsrp_papers
publication:facpub
publication:facsch
Beyond Interstate Recognition in the Same-Sex Marriage Debate
Simson, Gary J.
The national same-sex marriage debate has been dominated for the past decade by the interstate recognition issue. This article seeks to shift the focus of the debate to same-sex marriage prohibitions themselves and their incompatibility with several limitations of federal constitutional law.
After showing the legal irrelevance of the Defense of Marriage Act to the interstate recognition issue, the article addresses the proper resolution of that choice-of-law issue through the lens of a well-known New York Court of Appeals decision. In that case, despite New York's ban on uncle-niece marriage, the New York high court - one of the most respected state supreme courts over the years in choice-of-law matters - applied Rhode Island law to uphold the validity of an uncle-niece marriage in Rhode Island between two New Yorkers. On its face, the case appears to offer powerful support for recognizing an out-of-state same-sex marriage that is valid where formed, but as the article demonstrates, the court's choice of law is so difficult to defend that it actually militates against interstate recognition of same-sex marriage.
However, as the article's juxtaposition of the uncle-niece and same-sex marriage recognition issues highlights, same-sex marriage recognition is not simply a matter of choice of law. While the Constitution leaves states free to allow or ban uncle-niece marriage, states do not have such latitude in legislating about same-sex marriage. The article maintains that prohibitions on same-sex marriage violate the Due Process, Equal Protection, and Establishment Clauses.
2006-12-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/43
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1042/viewcontent/2006_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Same-sex marriage
Domestic Relations
Sexuality and the Law
Family Law
Sexuality and the Law
oai:scholarship.law.cornell.edu:lsrp_papers-1045
2010-03-02T21:17:55Z
publication:lsrp_papers
publication:facpub
publication:facsch
Constitutional Avoidance in the Executive Branch
Morrison, Trevor W
When executive actors interpret statutes, the prevailing assumption is that they can and should use the tools that courts use. Is that assumption sound? This Article takes up the question by considering a rule frequently invoked by the courts - the canon of constitutional avoidance.
Executive branch actors regularly use the avoidance canon. Indeed, some of the most hotly debated episodes of executive branch statutory interpretation in recent years - including the initial torture memorandum issued by the Justice Department's Office of Legal Counsel, the President's signing statement regarding the McCain Amendment's ban on the mistreatment of detainees, and the Justice Department's defense of the National Security Agency's warrantless wiretapping program - feature prominent reliance on the avoidance canon. Typically, such reliance is supported by citation to one or more Supreme Court cases. Yet those citations are rarely accompanied by any discussion of the values courts try to serve when they employ avoidance. Are those values specific to the federal judiciary - for example, facilitating judicial deference to legislative majorities - or do they reflect substantive commitments extending beyond the courts? Equally lacking is any sustained consideration of interpretive context: Does their particular institutional location and function enable executive actors to call upon sources of statutory meaning that are unavailable to courts, rendering rough tools like the avoidance canon unnecessary?
This Article explores executive use of the avoidance canon along both these dimensions. As to theoretical justification, I show that whether constitutional avoidance is appropriate in the executive branch turns on whether one accepts the conventional account of the canon, which sees it as serving values specific to the federal judiciary, or an alternative account, which views it as serving a set of broader norms not confined to the courts. As to interpretive context, I show that because executive officials often have better access to and knowledge of statutory purpose than do the courts, some facially ambiguous texts may in fact be entirely unambiguous to the executive interpreter. In those circumstances, the avoidance canon has no role to play.
Overall, although this Article focuses on executive uses of the avoidance canon in particular, the aim is to contribute to the development of a methodology for analyzing executive branch statutory interpretation in general.
2006-10-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/46
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1045/viewcontent/2006_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
executive branch
statutory interpretation
constitutional avoidance
separation of powers
war on terror
signing statements
Constitutional Law
Constitutional Law
oai:scholarship.law.cornell.edu:lsrp_papers-1052
2012-02-10T19:38:13Z
publication:lsrp_papers
publication:facpub
publication:facsch
What's Wrong with Involuntary Manslaughter?
Garvey, Stephen P.
Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor's inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor would have chosen to take the risk if he had been aware of it, even though he was not in fact aware of it. I argue that neither of these theories satisfactorily identifies when and why retributive punishment is warranted for inadvertent lethal risk-creation. Instead, I propose that an actor who creates a risk of causing death but who was unaware of that risk can fairly be subject to retributive punishment if he was either non-willfully ignorant or self-deceived, and if such ignorance or self-deception was due to the causal influence of a desire he should have controlled. The culpability of such an actor consists, not in any prior actual choice to do wrong, nor in any imagined hypothetical choice to do wrong, but in the culpable failure to exercise doxastic self-control: control over one's beliefs.
2006-09-13T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/53
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1052/viewcontent/2006_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
voluntary manslaughter
negligent homicide
Criminal Law and Procedure
Criminal Law
oai:scholarship.law.cornell.edu:lsrp_papers-1055
2010-04-08T17:55:15Z
publication:lsrp_papers
publication:facpub
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 we have already employed to become an OS where homes and human capital (higher education) are concerned. Nor do they appear to have considered whether these same means - which amount to publicly enhanced private credit markets - might be employed to spread shares in business firms, with a view to completing our OS. This article, the third in a series, seeks tentatively to fill that gap. It does so first by demonstrating how the Employee Stock Ownership Plan, or ESOP, in effect replicates our home and education spreading programs in piecemeal fashion. But piecemeal replication, the article shows, is not sufficient; a completed OS requires complete replication. So the article, second, generalizes from the ESOP along two salient dimensions - what it labels the patronage and credit dimensions - in order both to complete SOP-financing's replication of our federal home- and higher-education finance programs, and with that our OS itself. Our OS is, in effect, a three-legged stool that awaits its third leg.
2007-07-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/56
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1055/viewcontent/2007_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Stock ownership plans
Economics
Economics
Law and Economics
oai:scholarship.law.cornell.edu:lsrp_papers-1056
2010-04-08T18:21:59Z
publication:lsrp_papers
publication:facpub
publication:facsch
A Jeffersonian Republic by Hamiltonian Means: Values, Constraints & Finance in an Authentic American Ownership Society
Hockett, Robert C.
This article, the second in a trilogy, interprets American ownership-spreading programs past and present under the aspect of a comprehensive theory of "the American ownership society" (OS) developed in its predecessor article, titled Whose Ownership? Which Society? It also identifies what appears to be a significant gap in our efforts to become a comprehensive OS thus far.
By early in the 20th century, we had developed and implemented a number of highly innovative and successful programs dedicated to the task of spreading human and nonhuman capital (in the form of arable land in particular) quite broadly. Since about the 1930s, however, small-parceled land has receded in importance as a form of nonhuman capital such as can underwrite productive autonomy; and we now lack the land to dole out in that fashion in any event. To complete our OS in the manner that we began to do seriously in the late 19th century, we must turn to the prospect of spreading the ownership of business firms. Our home-spreading and education-spreading programs have modernized over the course of the later 20th and early 21st centuries in tandem with the modernization of finance technologies. Our share-spreading programs have not.
The article accordingly surveys and preliminarily assesses some early proposals to spread shares in firms by means analogous to those employed to spread homes and educations. In doing so it also looks ahead to its sequel, which is devoted to updating those early proposals in a manner more sober than that of the earlier proposers.
2005-11-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/57
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1056/viewcontent/2005_01.pdf.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-1057
2010-04-08T19:03:40Z
publication:lsrp_papers
publication:facpub
publication:facsch
Review Essay: The Limits of Their World
Hockett, Robert C.
I take a recent monograph on international law, Jack Goldsmith & Eric Posner's "Limits of International Law," as case study in a more general inquiry into the limitations of rational choice and game theoretic accounts of international law. I argue that international law is irreducibly normative in character, and that the task before us is to ensure that it gives expression to the right norms, not to pretend that it gives expression to no norms at all.
2006-06-12T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/58
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1057/viewcontent/2006_01br.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Jack L. Goldsmith
Eric A. Posner
International Law
International Law
oai:scholarship.law.cornell.edu:lsrp_papers-1058
2010-03-02T21:29:15Z
publication:lsrp_papers
publication:facpub
publication:facsch
Three (Potential) Pillars of Transnational Economic Justice: The Bretton Woods Institutions as Guarantors of Global Equal Treatment and Market Completion
Hockett, Robert C.
This essay aims to bring two important lines of inquiry and criticism together. It first lays out an institutionally enriched account of what a just world economic order will look like. That account prescribes, via the requisites to that mechanism which most directly instantiate the account, three realms of equal treatment and market completion - the global products, services, and labor markets; the global investment/financial markets; and the global preparticipation opportunity allocation. The essay then suggests how, with minimal if any departure from familiar canons of traditional international legal mandate interpretation, each of the Bretton Woods institutions - particularly the GATT/WTO and the IMF - can be viewed at least in part as charged with the task of fostering equal treatment and ultimate market completion within one of those three realms. The piece then argues that one of the institutions in particular - the World Bank - has, for reasons of at best negligent and at worst willful injustice on the part of influential state actors in the world community, fallen farthest short in pursuit of what should be viewed as its proper mandate. The article accordingly concludes that a fuller empowerment of the Bank to effect its ideal mission will press the Bretton Woods system more nearly into ethical balance, and with it the world into justice; and that full empowerment of the GATT/WTO and IMF should be partly conditioned upon the fuller empowerment of the Bank.
2005-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/59
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1058/viewcontent/06_034.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Economics
Economics
oai:scholarship.law.cornell.edu:lsrp_papers-1060
2013-07-02T13:36:27Z
publication:lsrp_papers
publication:facpub
publication:facsch
Whose Ownership? Which Society?
Hockett, Robert C.
The idea of an "ownership society" (OS) is not new to American politics or law. It might be called the seventeen year cicada of American domestic policy - emerging once per generation onto the national agenda, generating just a bit of buzz, then receding once again to leave a mass of empty shells and buried eggs behind. Unlike the insects, however, OS proposals seldom have sounded the same notes to everyone's ears. They have been proffered to or on behalf of differing constituencies for differing reasons, and therefore have tended to mean different things to different people. It is tempting to blame precisely this fragmentation and polyvalence both for the general idea's recurrence and for its repeated receding. This Article seeks to bring theoretic and programmatic coherence to the idea of an American OS, in hopes of generating an enduring and endurable version of it. The Article first identifies three political traditions that amount to our self-understandings as a people. An enduring American OS must resonate with those traditions. The Article then synthesizes a unified self-understanding from the three traditions - a coherent set of constitutive ideals that contour what the Article calls an Efficient Equal-Opportunity Republic (EEOR). The EEOR is the template for an endurable American OS. The Article then fleshes out the bare bones of the EEOR. It does so first by detailing how "ownership" must be interpreted and promoted not only in keeping with the broad constraints posed by the EEOR's core values, but in keeping with the narrower constraints posed by ownership psychology and the path-dependence of American law. It does so second by deriving a "Method" of financially engineered ownership-spreading that gives full expression both to the aforementioned core values and to the psychological and legal constraints. The Article concludes with a preview of its sequel, which catalogues and critically examines past OS programs and proposals under the aspect of the theory worked out in the present Article, and elaborates a coherent set of forward-looking ownership-promoting programs informed by the lessons that emerge from that critical encounter.
2006-09-27T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/61
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1060/viewcontent/06_036.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Ownership society
Economics
Economics
oai:scholarship.law.cornell.edu:lsrp_papers-1062
2007-01-31T15:18:14Z
publication:lsrp_papers
publication:facpub
publication:facsch
Just Insurance Through Global Macro-Hedging: Information, Distributive Equity, Efficiency, and New Markets for Systemic-Income-Risk-Pricing and Systemic-Income-Risk-Trading in a New Economy
Hockett, Robert C.
This article considers the prospects for exploiting (a) several deep conceptual linkages between justice and insurance, (b) the rapid development of new hedging methods and technologies, and (c) an increasingly integrated global finance economy, in a manner that can render the global economy both more just and more prosperous.
It first derives an account of economic justice from the best known theories currently in the field – an account likely to enjoy broad appeal. The article then elaborates on a number of striking parallels between what it takes for the best account of justice on the one hand, the theory of insurance on the other. The upshot is that insurance markets bearing certain attributes would afford opportunity to spread risk occasioned by economic change much more justly than is currently managed. The problem is that markets bearing those attributes face well known obstacles, the best known among them those rooted in asymmetrically spread information.
The article next argues that insurance markets bearing the requisite attributes can be simulated by markets in derivative securities the values of which are tied to underlying macroeconomic aggregates not subject to manipulation by traders. That's to say that we can develop analogues to insurance markets not plagued by the best known asymmetric information problem, that popularly known as "moral hazard." What is more, however, derivatives markets of the sort here envisaged offer means of escaping the other principal asymmetric information problem – so-called "adverse selection" – as well. For these markets are classic Hayekian aggregators and publicizers of value-pertinent information.
The article finally turns to careful consideration of what currently stands in the way of development of the markets that it envisages, and to what might be done to surmount those obstacles. It happens that the latter obstacles are readily surmounted through collective action. The article accordingly concludes with a number of proposals for concerted action, not only by governments but by non-governmental organizations as well.
2006-09-29T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/63
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1062/viewcontent/06_040.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Insurance markets
Economics
Economics
oai:scholarship.law.cornell.edu:lsrp_papers-1059
2007-01-31T14:42:22Z
publication:lsrp_papers
publication:facpub
publication:facsch
From "Mission-Creep" to Gestalt Switch: Justice, Finance, the IFIS, and Globalization's Intended Beneficiaries
Hockett, Robert C.
This essay suggests means by which the international financial institutions (IFIs), the IBRD and the IMF in particular, and indeed "globalization" more generally might be rendered more friendly to humanity. The key, it suggests, lies in a subtle shift in perspective, a "gestalt-switch": It is to move from thinking in terms of political and macroeconomic aggregates - nations and gross national products - to thinking in terms of the individuals who constitute nations and produce national products - those the essay calls the "intended beneficiaries" of globalization.
Thinking in terms of those beneficiaries and their equal claims to our concern feeds immediately into consideration of what individuals bear equal rights to. And thinking about the latter, in turn, feeds directly into recognition that it is opportunity to participate in and contribute productively to the process of global economic growth that should be equitably spread.
But opportunity of this sort is a paradigmatically financial category, hence one that falls squarely within the IFIs' bailiwick. The essay accordingly discusses opportunity-spreading and risk-sharing policies and programs that would not only be consistent with the IFIs' treaty-created constitutive mandates, but also would push the world more fully toward justice and prosperity alike.
2006-09-27T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/60
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1059/viewcontent/06_035.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
International financial institutions
Economics
Economics
oai:scholarship.law.cornell.edu:lsrp_papers-1061
2007-01-31T15:07:07Z
publication:lsrp_papers
publication:facpub
publication:facsch
From Macro to Micro to “Mission-Creep”: Defending the IMF’s Emerging Concern with the Infrastructural Prerequisites to Global Financial Stability
Hockett, Robert C.
Charges that the IMF has been engaging in "mission creep," gradually taking on a growing number of activities that exceed its constitutive mandate, have grown both in vehemence and in frequency since the late 1990s. I argue that, what ever the substantive merits of its actions, the IMF's developing attention to the structural determinants of global financial stability is not ultra vires. The Fund's evolving role was both foreseen and constitutionally provided for, both at its founding and at the principal constitutive Articles-amending "moments" since.
2006-09-20T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/62
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1061/viewcontent/06_038.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
International Monetary Fund
Economics
Economics
oai:scholarship.law.cornell.edu:lsrp_papers-1064
2012-04-25T17:58:01Z
publication:lsrp_papers
publication:facpub
publication:facsch
Every Juror Wants a Story: Narrative Relevance, Third Party Guilt and the Right to Present a Defense
Blume, John H.
Johnson, Sheri L.
Paavola, Emily C.
On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence of third-party guilt if it is relevant under Federal Rule of Evidence 401, or its state equivalent, and not excluded by other rules of evidence, such as 403. While some scholars have lauded the 401/403 approach as the better test, in practice the two tests operate in much the same way and the evidentiary bottom line is that the defendant's evidence is frequently deemed inadmissible. Courts have offered two justifications for the strict restrictions on third-party guilt evidence: (1) to prevent juror confusion; and, (2) to guard against fabricated statements by third parties. We explain why these fears are unfounded, and then turn to the focus of this article: the importance of narrative relevance. Existing evidentiary restrictions fail to consider the role third party guilt evidence plays in shaping the narrative, or story, that the defendant will present to the jury in his defense. Empirical studies have shown that - more than legal standards, definitions or instructions - narrative plays a key role in the juror decision-making process. Without a thorough understanding and consideration of the narrative relevance of third party guilt evidence, restrictions on its use cannot be and are not being appropriately applied because they fail to account for the way in which jurors actually think and process information at trial. After discussing the importance of narrative relevance, we propose a new test which is more consistent with a defendant's constitutional rights to a fair trial and to present a complete defense. First, the threshold test for admissibility should be probable cause. If the evidence proffered by the defendant would permit the state to proceed with a criminal prosecution against the third party, then the defendant must be permitted to tell the story of third party guilt. A story for the goose is a story for the gander. Once, the threshold test is satisfied, we propose that, with one significant exception, a defendant should be permitted to admit third-party guilt evidence if that same evidence would be admissible against the third party were he the defendant. The exception is propensity evidence. There is no need to balance the probative value of the third-party guilt evidence against the danger of unfair prejudice because the third-party suffers no prejudice by the admission of the evidence at a trial in which he is not the accused. Thus, admission of propensity (or other character) evidence concerning a third party should not be precluded.
2007-07-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/65
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1064/viewcontent/2007_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Third party guilt
Criminal defenses
Federal Rule of Evidence 401
Admissibility
Criminal Law and Procedure
Courts
Criminal Law
Criminal Procedure
Evidence
oai:scholarship.law.cornell.edu:lsrp_papers-1063
2010-03-03T19:23:09Z
publication:lsrp_papers
publication:facpub
publication:facsch
The Political Economy of Education Federalism
Heise, Michael
The No Child Left Behind Act represents the federal government's most significant foray into the nation's elementary and secondary public school policymaking terrain. Although the Act undertakes unassailable policy goals, its critics argue that it represents an unwarranted federal intrusion into education policymaking, generates unintended policy consequences, and amounts to an unfunded federal mandate. Constitutionalists dwell on the Act's threat to structural federalism as it plausibly strains Congress's conditional spending authority. The coercive force that federal education funds exert on local school districts and states attracts particular attention. The No Child Left Behind Act, however, safely navigates through an even more rigorous conception of the coercion prohibition as articulated by the Court in South Dakota v. Dole. The Act, while coercive, is not unconstitutionally coercive as it imposes only an opportunity cost on states willing to forego federal funding. Although the No Child Left Behind Act does not violate the conditional spending doctrine as presently understood, from a policy perspective the Act generates important coercive force. Such policy coercion arises due to the unusually close nexus among various education policies, including student achievement, curriculum, standards and assessments, and finance. Understanding this crucial subtlety about the political economy of education federalism is one key to understanding the full, ongoing debate surrounding intergovernmental squabbles over education policy among federal, state, and local officials.
2006-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/64
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1063/viewcontent/2006_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
No Child Left Behind Act
Constitutional Law
Education Law
Constitutional Law
Education Law
oai:scholarship.law.cornell.edu:lsrp_papers-1065
2010-03-03T19:39:46Z
publication:lsrp_papers
publication:facpub
publication:facsch
Commentaries: The Ambiguous Work of “Natural Property Rights”
Alexander, Gregory S.
The three fascinating papers by Dick Helmholz, Jim Ely, and Mark Tushnet prompt me to ask, why was there so much talk among late 18th and 19th century American lawyers about property as a "natural" right and why has the language persisted today? More specifically, what work is the rhetoric of "natural property rights" intended to do? This is not the proper occasion for developing anything like complete answers to those questions, but I do want to offer three lines of thought that might begin to approach a fuller explanation of the puzzling persistence of natural-property-rights talk.
2007-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/66
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1065/viewcontent/2006_04.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Helmholz
Ely
Tushnet
Natural property rights
Property-Personal and Real
Property Law and Real Estate
oai:scholarship.law.cornell.edu:lsrp_papers-1074
2009-11-19T18:42:05Z
publication:lsrp_papers
publication:facpub
publication:facsch
The Intent-to-Benefit: Individually Enforceable Rights Under International Treaties
Kalantry, Sital
Citizens of foreign countries are increasingly using international treaties to assert claims against Federal and state governments. As a result, U.S. courts are being asked to determine whether treaties provide litigants with individually enforceable rights. Although courts have no consistent approach to determining whether a treaty gives rise to individually enforceable rights, they often apply the textualist methodology derived from statutory interpretation. However, instead of using textual theories of statutory interpretation, I argue that courts should use intentionalist theories developed from contract interpretation in determining individually enforceable rights under treaties. Two positive arguments and one negative argument support my approach. First, the question of whether a non-party can enforce a treaty is structurally similar to the question of whether a non-party can enforce a contract, but structurally different from the issue of whether there is a private cause of action under a statute. Second, Supreme Court jurisprudence supports the view that treaties are contracts even though they have the effect of statutes. As such, it is appropriate to apply theories of contract interpretation to understanding treaties. Third, arguments used to justify using textualism for purposes of interpreting statutes are not relevant to interpreting treaties.
I suggest that courts use a modified version of the "intent-to-benefit" test derived from contract law in determining whether a treaty is enforceable by a non-party. Under the modified "intent-to-benefit" test, a non-party will have individually enforceable rights and remedies under the treaty if the treaty identifies a class of individuals who are intended beneficiaries of the treaty and if such non-party is within that class of individuals. Applying this test suggests that courts should privilege the drafting history over the ratification history of a treaty in interpreting it.
I apply the modified "intent-to-benefit " test to a case study-the Vienna Convention on Consular Relations. The Supreme Court recently decided in Sanchez-Llamas v. Oregon that the Vienna Convention on Consular Relations does not provide individuals with any remedies, but refused to decide whether the treaty provides individuals with rights. Since that decision, two Federal Courts of Appeals have come to differing conclusions on the question of whether that treaty creates individually enforceable rights. Under the modified "intent-to-benefit," the Vienna Convention on Consular Relations would be found to give rise to individually enforceable rights.
2008-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/75
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1074/viewcontent/07_002final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Individually enforceable rights
Treaties
International Law
International Law
oai:scholarship.law.cornell.edu:lsrp_papers-1076
2009-11-19T19:27:10Z
publication:lsrp_papers
publication:facpub
publication:facsch
Complete Preemption and the Separation of Powers
Morrison, Trevor W
This is a short response, published in Pennumbra (the online companion to the University of Pennsylvania Law Review), to Gil Seinfeld's recent article, "The Puzzle of Complete Preemption."
I first sound some notes of agreement with Professor Seinfeld's critique of the Supreme Court's complete preemption doctrine. I then turn to his proposed reshaping of the doctrine around the interest in federal legal uniformity. Although certainly more satisfying than the Court's account, Professor Seinfeld's refashioning of the doctrine raises a number of new difficulties. In particular, it invites the federal courts to engage in a range of line-drawing exercises to which they may not be especially well suited. I conclude by suggesting that the difficulties raised by Professor Seinfeld's refashioning support the view that complete preemption should depend on congressional intent, not judicial invention.
2007-03-05T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/77
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1076/viewcontent/07_003.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Preemption
Separation of powers
Courts
Jurisdiction
Courts
Jurisdiction
oai:scholarship.law.cornell.edu:lsrp_papers-1078
2009-11-17T14:44:20Z
publication:lsrp_papers
publication:facpub
publication:facsch
Plaintiphobia in State Courts? An Empirical Study of State Court Trials on Appeal
Eisenberg, Theodore
Heise, Michael
Prior federal civil appellate studies show that appeals courts overturn jury verdicts more than bench decisions and that defendants fare better than plaintiffs on appeal. Attitudinal and selection effect hypotheses may explain the appellate court tilt favoring defendants. This study presents the first statistical models of the appeals process for a comprehensive set of state court civil trials to test theories on appellate outcomes. Using data from 46 large counties on 8,038 trials and 549 concluded appeals, we find that appellate reversal rates for jury trials and defendant appeals exceed reversal rates for bench trials and plaintiff appeals. The reversal rate for plaintiff appeals is 21.5 percent, compared with 41.5 percent for defendant appeals. The reversal rate for jury trials is 33.7 percent, compared with 27.5 percent for bench trials. Descriptive analyses and more formal models suggest that appellate judges’ attitudes toward trial-level adjudicators help explain these asymmetric outcomes.
2009-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/79
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1078/viewcontent/07_006final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Appellate court decisions
Courts
Courts
oai:scholarship.law.cornell.edu:lsrp_papers-1077
2009-11-16T21:08:20Z
publication:lsrp_papers
publication:facpub
publication:facsch
Is Public Reason Counterproductive?
Peñalver, Eduardo M.
The debate over the proper role of religion in public life has raged on for decades and shows little signs of slowing down. Proponents of restrictive accounts of public reason have proceeded under the assumption that religious and deep moral disagreement constitutes a threat to social stability that must be tamed. In contrast to this "scary story" linking pluralism with the threat of instability, there exists within political theory a competing, "happy story" according to which pluralism affirmatively contributes to stability by creating incentives for groups to moderate their demands. Whether the scary story or happy story is a more accurate reflection of our reality is a difficult empirical question, but one that ought to matter a great deal to discussions of public reason. Acting as if the scary story were true when the happy story is in fact operating will lead proponents of public reason to stifle the healthful effects of robust pluralism, degrading the quality of public deliberation and ultimately undermining stability. In other words, if the happy story turns out to be the right one, restrictive accounts of public reason may turn out to be counterproductive, hastening the very deliberative and social harms they aim to forestall.
2008-02-11T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/78
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1077/viewcontent/07_004final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Public reason
Religion
Religion
oai:scholarship.law.cornell.edu:lsrp_papers-1079
2010-02-19T19:59:33Z
publication:lsrp_papers
publication:facpub
publication:facsch
CAFA Judicata: A Tale of Waste and Politics
Clermont, Kevin M.
Eisenberg, Theodore
The Class Action Fairness Act has taken on its real form through construction by the federal judges. That form emerges in this empirical study of judicial activity and receptivity to the Act. Our data comprise the opinions under the Act published during the two and a half years following its enactment in 2005.
CAFA has produced a lot of litigation in its short life. The cases were varied, of course, but most typically the resulting published federal opinion involved a removed contract case, with the dispute turning on the statute's effective date or on federal jurisdiction. Even though the opinions shed some light on issues such as jurisdictional burden and standard of proof, most of the judicial activity was socially wasteful litigation. It emphasized transitional efforts to interpret the sloppily drafted provisions on effective date and on federal jurisdiction.
More interesting, we saw wise but value-laden resistance by judges to CAFA, as they interpreted it in a way to dampen the early hopes of overly enthusiastic removers. Regression analysis confirms the suggestion of percentages of cases decided in favor of a narrow construction of the statute. With the exception of Republican male judges, the federal judiciary has not warmly embraced the statute.
2008-06-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/80
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1079/viewcontent/07_018final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Class Action Fairness Act
CAFA
Class actions
Jurisprudence
Jurisprudence
Litigation
oai:scholarship.law.cornell.edu:lsrp_papers-1080
2010-01-11T19:22:01Z
publication:lsrp_papers
publication:facpub
publication:facsch
Properties of Community
Alexander, Gregory S.
Peñalver, Eduardo M.
Theories of property presuppose conceptions of community, and of the individual's relationship to community. In contrast to the dominant theories of community at work within most Anglo-American property theorizing, which view community obligations as fundamentally instrumental and contractual, we propose in this paper a theory that views the relationship between the individual and community as constitutive and substantive. Human beings' dependence on others to flourish imposes on political communities and their individual members a shared obligation to foster and contribute to the creation and maintenance of those structures necessary for that flourishing. This obligation in turn qualifies individual rights of property, empowering, and, under the right circumstances, compelling the state to take from some in order to safeguard access to needed resources for others.
2009-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/81
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1080/viewcontent/2009_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Community
Property-Personal and Real
Property Law and Real Estate
oai:scholarship.law.cornell.edu:lsrp_papers-1082
2009-11-16T20:42:13Z
publication:lsrp_papers
publication:facpub
publication:facsch
The Dilemma of the Criminal Defendant with a Prior Record - Lessons from the Wrongfully Convicted
Blume, John H.
This article examines challenges the conventional wisdom that an innocent defendants will testify on their own behalf at trial. Data gathered from the cases of persons subsequently exonerated due to DNA evidence demonstrates that factually innocent defendants do not testify on their own behalf at substantially higher rates than criminal defendants generally. Why? The primary reason is that many of these individuals had been previously convicted of a crime, and they did not testify at trial because of the risk that their credibility would be impeached with evidence of the prior record and, despite any limiting instruction the court might give, the jury would infer that they were guilty based on their prior misdeeds. Because the current legal regime discourages defendants, even factually innocent defendants from telling their story at trial, the law should be changed. Only prior convictions for perjury should be potentially available for impeachment purposes.
2008-09-01T07:00:00Z
text
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https://scholarship.law.cornell.edu/lsrp_papers/83
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1082/viewcontent/07_017final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Wrongful conviction
Jury testimony
Criminal Law and Procedure
Criminal Law
oai:scholarship.law.cornell.edu:lsrp_papers-1084
2009-11-16T20:53:22Z
publication:lsrp_papers
publication:facpub
publication:facsch
"Why Can't a Woman Be More Like a Man?" American and Australian Approaches to Exclusionary Conduct
Hay, George
Smith, Rhonda L.
Much of antitrust law (in the U.S.) or trade practices law (in Australia) is about “exclusionary conduct,” things that large firms do to acquire an even larger share of the market or to preserve their large market share from being eroded by smaller rivals or new entrants. In the U.S., the main vehicle for policing inappropriate exclusionary conduct by large firms against smaller competitors is Section 2 of the Sherman Act, which prohibits monopolization or attempted monopolization. In Australia, the main vehicle is Section 46 which, generally speaking, prohibits the misuse of market power. The main purpose of this paper is to discuss, in broad terms, how Section 2 deals with exclusionary conduct and to compare that with the Section 46 approach. Those who are dissatisfied with the outcome of certain individual cases in Australia, or those interested in reform generally, are occasionally heard to muse about whether Section 46 should be “fixed” in some way, and one possible way that is sometimes discussed is to make it resemble Section 2 more closely. One of the issues that this paper will explore is whether there are deficiencies in the Section 46 approach that can (and should) be “cured” by making it more closely resemble Section 2.
2007-11-12T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/85
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1084/viewcontent/07_022final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Exclusionary conduct
Australia
Antitrust
Antitrust and Trade Regulation
oai:scholarship.law.cornell.edu:lsrp_papers-1085
2007-11-13T15:36:40Z
publication:lsrp_papers
publication:facpub
publication:facsch
The Quiet Revolution in U.S. Antitrust Law
Hay, George
In this paper, I report on a series of recent decisions in antitrust cases by the U.S. Supreme Court. While each decision, read separately, may be only of moderate interest (even to a U.S. audience), the slate of decisions, looked at in its entirety, conveys a significant message, and one that may have meaning for scholars and practitioners in Australia and other jurisdictions outside the U.S. I would suggest that a quiet revolution is occurring in which the arguments economists have been making for nearly fifty years have suddenly been embraced by both the left and the right on the Court. The revolution is not yet complete; there is still substantial tidying up to do. But it will not take long before the entire corpus of antitrust has been transformed to fit the consumer welfare model with the added feature that it has been tailored to a world in which general purpose federal judges and lay juries (unless put on a very tight leash) can make mistakes which not merely can result in an injustice in the particular matter under litigation, but also can have significant dampening effects on the willingness of large, efficient firms to use their efficiency to compete vigorously. The fact that the law is catching up to a body of defendant-friendly economic theory that is fifty years old at about the same time that economic theory has begun to move in a direction that is more plaintiff-friendly is an ironic footnote to the story.
2007-11-12T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/86
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1085/viewcontent/07_023.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Antitrust
Antitrust and Trade Regulation
oai:scholarship.law.cornell.edu:lsrp_papers-1087
2010-02-02T20:19:09Z
publication:lsrp_papers
publication:facpub
publication:facsch
Suspension and the Extrajudicial Constitution
Morrison, Trevor W
What happens when Congress suspends the writ of habeas corpus? Everyone agrees that suspending habeas makes that particular - and particularly important - judicial remedy unavailable for those detained by the government. But does suspension also affect the underlying legality of the detention? That is, in addition to making the habeas remedy unavailable, does suspension convert an otherwise unlawful detention into a lawful one? Some, including Justice Scalia in the 2004 case Hamdi v. Rumsfeld and Professor David Shapiro in an important recent article, answer yes.
This Article answers no. I previously offered that same answer in a symposium essay; this Article develops the position more fully. Drawing on previously unexamined historical evidence, the first half of the article shows that treating suspension of the writ as legalizing detention is at odds with the dominant historical understanding in both England and the United States. According to that understanding, suspension affects neither the legality of detention nor the availability of post detention remedies (like money damages) for unlawful detention. Suspension of the writ, post detention liability, and legality are distinct questions.
My aims go beyond providing a positive account of suspension, however. In the second half of the Article, I examine a set of broader issues that my account of suspension raises but that the current literature almost entirely overlooks. The core question here is this: If suspension does not equal legalization, what are the roles and obligations of the legislative and executive branches when the writ is validly suspended? I suggest ways to think about those branches' independent obligation to uphold and enforce the Constitution during periods of suspension, especially with regard to constitutional norms that might seem to be associated exclusively with the courts. In that respect, the article uses suspension as a window into larger issues regarding the theory and mechanics of constitutional interpretation and implementation outside the courts.
2007-11-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/88
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1087/viewcontent/lsrp88final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Habeas corpus
Detention of persons
Civil Rights
Constitutional Law
Criminal Law and Procedure
Civil Rights and Discrimination
Constitutional Law
Criminal Law
oai:scholarship.law.cornell.edu:lsrp_papers-1088
2015-03-03T13:07:49Z
publication:lsrp_papers
publication:facpub
publication:facsch
Reconfiguring Law Reports and the Concept of Precedent for a Digital Age
Martin, Peter W.
Adherence to the “rule of law” entails a strong commitment to consistency - a belief that throughout a jurisdiction and across time judges should treat like cases alike. For over a century, the U.S. judiciary's pursuit of this aim has relied principally upon print law reports. With unsettling rapidity, digital technology has dislodged that system, in practical fact, if not yet in the way lawyers and judges talk and think about case law. This article explores gains one might hope for from a “judicial consistency” system liberated from the constraints of print, likely effects on concepts of precedent, as well as challenges and forces of resistance standing in the way of change.
2008-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/89
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1088/viewcontent/07_013final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
neutral citation
precedent
appellate courts
stare decisis
official reports
digital technology
Westlaw
Lexis
West Publishing
Courts
Courts
oai:scholarship.law.cornell.edu:lsrp_papers-1089
2009-11-17T15:05:56Z
publication:lsrp_papers
publication:facpub
publication:facsch
Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and On Trial Outcomes
Eisenberg, Theodore
Hans, Valerie P.
This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for evidentiary strength and other factors, statistically significant associations exist (1) between the existence of a criminal record and the decision to testify at trial, (2) between the defendant testifying at trial and the jury learning about the defendant's prior record, and (3) in cases with weak evidence, between the jury learning of a criminal record and conviction. For cases with strong evidence against defendants, learning of criminal records is not strongly associated with conviction rates. Juries appear to rely on criminal records to convict when other evidence in the case normally would not support conviction. Use of prior record evidence may therefore lead to erroneous convictions. Prosecutors and judges should consider the increased likelihood of erroneous conviction based on use of prior convictions in decisions to prosecute and in evidentiary rulings.
2009-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/90
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1089/viewcontent/07_012final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Juries
Criminal Record
Criminal Law and Procedure
Evidence
Criminal Law
Evidence
oai:scholarship.law.cornell.edu:lsrp_papers-1091
2010-01-11T18:57:11Z
publication:lsrp_papers
publication:facpub
publication:facsch
The Social-Obligation Norm in American Property Law
Alexander, Gregory S
This article seeks to provide in property legal theory an alternative to law-and-economics theory, the dominant mode of theorizing about property in contemporary legal scholarship. I call this alternative the social obligation theory.
I argue that American property law, both on the private and public sides, includes a social-obligation norm but that this norm has never been explicitly recognized as such nor systemically developed. I argue that a proper understanding of the social obligation explains a remarkably wide array of existing legal doctrine in American property law, ranging from the power of eminent domain to the modern public trust doctrine. In some cases social obligation reaches the same result as law-and-economics, but in other cases it will not. Even where it reaches the same result as law and economics, social obligation theory provides a superior explanation.
At a normative level I argue that the version of the social-obligation norm that I develop here is morally superior to other candidates for the social-obligation norm. It is so because it best promotes human flourishing, i.e., enabling individuals to live lives worthy of human dignity.
Drawing on Martha Nussbaum's capabilities approach (which itself is based on the Aristotelian notion that the human being is a social and political animal, not self-sufficient alone), the social obligation theory holds that all individuals have an obligation to others in their respective communities to promote the capabilities that are essential to human flourishing (e.g., freedom, practical reasoning). For property owners this has important consequences. if we accept the existence of an obligation to foster the capabilities necessary for human flourishing, and if we understand that obligation as extending to an obligation to share property, at least in surplus resources, in order to enhance the abilities of others to flourish, then it follows that, in the predictable absence of adequate voluntary transfers, the state should be empowered and may even be obligated to step in to compel the wealthy to share their surplus with the poor so that the latter can develop the necessary capabilities. None of this is meant to suggest that the state's power, even as it touches on the facilitation of the capabilities we are discussing, is unbounded. But the limits to the state's proper domain are supplied by the same principles that justify its action: the demands generated by the capabilities that facilitate human flourishing - freedom, practical rationality, and sociality, among others.
2009-05-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/92
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1091/viewcontent/lsrp_papers92final.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-1092
2015-03-03T13:12:01Z
publication:lsrp_papers
publication:facpub
publication:facsch
Online Access to Court Records - from Documents to Data, Particulars to Patterns
Martin, Peter W.
For over a decade the public has had remote access to federal court records held in electronic format, including documents filed by litigants and judicial rulings. First available via dial-up connections, access migrated to the Web in 1998. That and a succession of other improvements to the federal "Public Access to Court Electronic Records" system or PACER prompted the Administrative Office of the United States Courts to proclaim in 2001 that "the advancement of technology has brought the citizen ever closer to the courthouse." Unquestionably, what the Administrative Office of the U.S. Courts and Judicial Conference of the United States have built offers citizens, businesses, journalists, and scholars unprecedented access to the details of individual court proceedings. But to hold PACER in that frame is to miss much of its impact. Moreover, some of the gains one might hope or expect to flow from enhanced judicial transparency remain largely untouched by this system. The article explores PACER's evolution, larger impact, and unrealized possibilities. It then proceeds to examine why state courts are, in general, approaching online access to court records so differently.
2008-03-14T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/93
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1092/viewcontent/08_003.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
PACER
Electronic court records
Courts
Courts
oai:scholarship.law.cornell.edu:lsrp_papers-1093
2010-01-11T20:39:57Z
publication:lsrp_papers
publication:facpub
publication:facsch
Litigation Realities Redux
Clermont, Kevin M.
Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study of the adjudicatory system's operation.
2009-07-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/94
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1093/viewcontent/2009_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Empirical
Torts
Practice and Procedure
Litigation
Torts
oai:scholarship.law.cornell.edu:lsrp_papers-1097
2010-03-19T18:27:39Z
publication:lsrp_papers
publication:facpub
publication:facsch
Lawyers, Citizens, and the Internal Point of View
Wendel, W. Bradley
Imagine two citizens, one of whom obeys the law only in order to avoid being sanctioned for noncompliance, the other of whom looks to the law for guidance, and regards legal directives as legitimate reasons for action in themselves. These two hypothetical citizens represent Oliver Wendell Holmes' metaphorical bad man and H.L.A. Hart's puzzled man, respectively. Both citizens take the law into account in their practical reasoning, but they are concerned with very different kinds of reasons created by law. Hart argues that the bad citizen's point of view is inadequate to capture the law's distinctive normativity. In response, some of his critics, including most prominently Stephen Perry, have pointed out that Hart purports to give a morally neutral account of law so he cannot smuggle normativity into his theory of law under the guise of the puzzled citizens point of view. The bad man is engaged in practical reasoning, but responds to legal norms in a distinctive way, by being concerned only with sanctions. Arguably, however, citizens are obligated to consider the law from the internal point of view to the extent they are concerned with the lawfulness of their activities, as opposed to simply being interested in getting away with something. This is a kind of ethical expressionist claim, that a citizen who represents that she is interested in the lawfulness of action is thereby committed to a particular stance toward law and legality.
If one does not accept this conceptual argument that one must relate to the law as a puzzled citizen and treat it as a reason for action as such, there still may be frankly normative reasons (not smuggled in through the back door, but argued explicitly) for taking the puzzled citizen's internal perspective on the law. These reasons derive from the shared interest of all citizens in establishing a stable framework for coordinated activity, notwithstanding deep and persistent first-order moral disagreement in a pluralistic society. This interest supports the law's claim to legitimate authority, which in turn creates norms that must be regarded as obligations as such, not merely prices that may be paid in order to engage in unlawful conduct. This normative argument supplies the ought in the expressionist argument above. The expressionist argument is that if one wishes to take advantage of a particular justificatory discourse (law and lawfulness) then one is committed to the internal point of view. Further, one ought to care about law and lawfulness to the extent one has an interest in living in an ordered, stable society that is characterized by disagreement about comprehensive doctrines of the good.
2006-12-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/98
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1097/viewcontent/08_011.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Legal philosophy
Public Law and Legal Theory
Public Law and Legal Theory
oai:scholarship.law.cornell.edu:lsrp_papers-1099
2010-01-20T19:26:11Z
publication:lsrp_papers
publication:facpub
publication:facsch
The Limits of Group Rights: Religious Institutions and Religious Minorities in International Law
Meyler, Bernadette A.
Scholars and advocates of religious liberty within the United States are beginning to suggest that our constitutional discourse has focused too intently on individual rights and that our attention should now turn to the interests of religious institutions and the notion of church autonomy. The reoriented jurisprudence encouraged by such proposals is not without parallel in other national contexts, including those of Europe. Heeding calls to attend to church autonomy could thus bring the United States into closer harmony with its European counterparts. Placing priority on church autonomy might, however, generate unforeseen obstacles to the exercise of religious liberty. In particular, emphasizing religious institutions may lead to the unequal treatment of individuals and entities of minority religious persuasions. As this Symposium Article's analysis of pertinent cases from the jurisprudence of international tribunals demonstrates, the monolithic conception of religious associations that has emerged from an institutionally oriented approach to religious liberty has resulted in the neglect of the equality of free exercise on the individual level and, concomitantly, disregard for the freedom of religious dissent and sub-group formation. The piece concludes with a suggestion about how to avoid the pitfalls of both the individually and institutionally based approaches.
2007-10-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/100
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1099/viewcontent/08_013.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Group rights
Religious minorities
International Law
Religion
International Law
Religion
oai:scholarship.law.cornell.edu:lsrp_papers-1098
2010-01-20T19:19:32Z
publication:lsrp_papers
publication:facpub
publication:facsch
Lawyers as Quasi-Public Actors
Wendel, W. Bradley
This paper was written for a panel on access to justice at the 100th anniversary conference of the Law Society of Alberta, Canada. In it I argue that the debate over access to justice, which in the United States generally means pro bono representation provided by individual lawyers, cannot be divorced from broader theoretical debates about the lawyer's role. My claim is that lawyers are quasi-public actors, in the sense that they have some responsibility to aim directly at justice in their representation of clients, and cannot rely only on indirect strategies to ensure that justice is served. The argument has a descriptive component, relying on the uneasy hybrid of direct and indirect strategies for serving justice that characterizes the American law governing lawyers. Assuming the accuracy of this description, the theoretical question is how one can argue from that description to a conclusion that legal ethics is fundamentally about some end, such as protecting client rights or individual autonomy. Relying on a Dworkin-style constructive interpretation, I conclude that it would be an unjustified distortion of the lawyer's role to impose requirements that lawyers ensure access to justice.
2008-06-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/99
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1098/viewcontent/08_012.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Legal ethics
Access to justice
Legal Profession
Legal Ethics and Professional Responsibility
Public Law and Legal Theory
oai:scholarship.law.cornell.edu:lsrp_papers-1103
2010-01-20T20:02:58Z
publication:lsrp_papers
publication:facpub
publication:facsch
Land Virtues
Peñalver, Eduardo M.
This article has two goals. First, I explore some of the descriptive and normative shortcomings of traditional law and economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other "commodities." The complexity of land - its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it - undermines the notion that owners will focus on a single value, such as wealth, in making decisions about their land. Adding to the equation land's "memory," by which I mean the combined impact of the durability of land uses and the finite quantity of land, calls into question the normative assessment that owners whose behavior is guided by a unitary measure like market value are using their land wisely, or at least more wisely than other modes of decision-making might hope to accomplish. The shortcomings of traditional law and economics theories of land use point toward the benefits of a pluralist theory of property based on the Aristotelian tradition of virtue ethics. Setting forth the broad outlines of such a theory as it applies to the law of land use is the second goal of this article. Virtue theory, I will argue, is capable of incorporating the valuable insights that have made economic analysis so appealing to land use theorists without distorting our moral vision or treating economic consequences as the only considerations that ought to matter.
2009-05-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/104
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1103/viewcontent/08_018.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Land use
Environment
Law and Economics
Property-Personal and Real
Law and Economics
Property Law and Real Estate
oai:scholarship.law.cornell.edu:lsrp_papers-1102
2010-01-20T19:41:51Z
publication:lsrp_papers
publication:facpub
publication:facsch
Cultural Conflicts
Riles, Annelise
This article builds upon insights from contemporary anthropology to rethink the field of conflicts as a matter of cultural conflict. This approach shifts the analysis away from the dominant approaches in the discipline, which take as their primary metric either questions of state power or of individual rights. Drawing on a case of conflict between Native American legal norms and U.S. state and federal law, this article argues for a conflicts methodology that takes seriously the role of cultural description in the process of cultural adjudication. To do so, in turn will require us to adopt a more sophisticated, flexible, and complex understanding of culture. It will also require that conflicts as a discipline acknowledge, in a more reflexive way, that acts of conflicts adjudication, from finding foreign law to applying doctrinal tests, constitute the communities and problems they claim only to adjudicate between.
2008-07-01T07:00:00Z
text
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https://scholarship.law.cornell.edu/lsrp_papers/103
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1102/viewcontent/08_016.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Cultural anthropology
Dispute Resolution
Dispute Resolution and Arbitration
oai:scholarship.law.cornell.edu:lsrp_papers-1104
2010-01-20T20:13:07Z
publication:lsrp_papers
publication:facpub
publication:facsch
The Jurisprudence of Pleading: Rights, Rules, and Conley v. Gibson
Sherwin, Emily
In 1957, in the case of Conley v. Gibson, the Supreme Court announced a minimal standard for the contents of a complaint under the Federal Rules of Civil Procedure and endorsed what has come to be known as 'notice' pleading. This article, prepared for a symposium on Conley, reviews the debate over pleading requirements that preceded the case. Unlike modern discussions of pleading, which focus on the level of factual specificity required in complaints, the pre-Conley debate was about the legal content of complaints - an question largely forgotten in the years following Conley.
The early twentieth century debate over pleading was at least in part a jurisprudential debate, waged between legal formalists and Legal Realists. The different interpretations the two camps gave to the pleading rules under the Field Code and, later, the Federal Rules, reflected their differing views of the role of positive law in adjudication. Formalists believed that a viable complaint must set out a theory of recovery, or 'cause of action,' based on existing rules of law. Legal Realists believed that the rules governing complaints should allow plaintiffs to present their stories to the courts and courts to do justice according to the facts that evolved at trial. The formalist view made legal claims dependent on supporting rules of substantive law, and so increased the chances that the course of litigation, and the resolution of litigated disputes, would be governed by articulable legal rules. The Legal Realist view loosened the grip of substantive law on trials, favoring instead a mode of adjudication in which judges aimed for just outcomes, case-by-case.
The article sets out my interpretation of the pre-Conley pleading debate, then describes the rather haphazard way in which the debate was resolved. It concludes with some brief comments on the implications the early debate for civil rights litigation.
2008-10-01T07:00:00Z
text
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https://scholarship.law.cornell.edu/lsrp_papers/105
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1104/viewcontent/08_019.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Conley v. Gibson
Jurisprudence
Civil Procedure
Jurisprudence
oai:scholarship.law.cornell.edu:lsrp_papers-1105
2010-01-20T19:49:55Z
publication:lsrp_papers
publication:facpub
publication:facsch
Arbitration's Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts
Eisenberg, Theodore
Miller, Geoffrey P
Sherwin, Emily
We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared arbitration clause use in consumer contracts with their use in the same firms' nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% of the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in nearly all material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers. The frequent use of arbitration clauses in the same firms' consumer contracts appears to be an effort to preclude aggregate consumer action rather than, as often claimed, an effort to promote fair and efficient dispute resolution. Other common features of civil litigation reform discussion, avoidance of juries and loser-pays attorney fee rules, find little support in the pattern of contractual terms we observe.
2008-07-01T07:00:00Z
text
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https://scholarship.law.cornell.edu/lsrp_papers/106
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1105/viewcontent/08_017.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Arbitration
Consumer contracts
Contracts
Contracts
oai:scholarship.law.cornell.edu:lsrp_papers-1106
2010-01-22T16:23:01Z
publication:lsrp_papers
publication:facpub
publication:facsch
Like A Nation State
Kysar, Douglas
Meyler, Bernadette A.
Using California's self-consciously internationalist approach to climate change regulation as a primary example, this Article examines constitutional limitations on state foreign affairs activities. In particular, by focusing on the prospect of California's establishment of a greenhouse gas (GHG) emissions trading system and its eventual linkage with comparable systems in Europe and elsewhere, this Article demonstrates that certain constitutional objections to extrajurisdictional linkage of state GHG emissions trading systems and the response that these objections necessitate may be more complicated than previously anticipated. First, successfully combatting the Bush Administration's potential claim that state-level climate change activities interfere with a federal executive position of withholding binding domestic GHG reductions in advance of a multilateral agreement including key developing nations, will require demonstrating that the executive branch is not acting with congressional support and has, furthermore, declared its position too informally to constitute an exercise of any of the president's independent constitutional powers. Second, state efforts to link GHG emissions trading systems with those of other nations may well take them into territory abutting that which is constitutionally impermissible under the foreign affairs and Foreign Commerce Clause doctrines. Finally, state efforts to integrate with other trading schemes or to otherwise protect the integrity of their own trading schemes must be carefully constructed lest they invite challenge as being discriminatory or overreaching, in light of more conventional dormant Commerce Clause constraints on state regulation.
2008-08-05T07:00:00Z
text
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https://scholarship.law.cornell.edu/lsrp_papers/107
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1106/viewcontent/08_021.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Federalism
Greenhouse gas emissions
Executive power
Commerce clause
Foreign affairs power
Environmental Law
Environmental Law
oai:scholarship.law.cornell.edu:lsrp_papers-1108
2010-01-12T19:01:09Z
publication:lsrp_papers
publication:facpub
publication:facsch
Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?
Clermont, Kevin M.
Schwab, Stewart J
This Article utilizes the Administrative Office's data to convey the realities of federal employment discrimination litigation. Litigants in these "jobs" cases appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs. These troublesome facts help explain why today fewer plaintiffs are undertaking the frustrating route into federal district court, where plaintiffs must pursue their claims relatively often all the way through trial and where at both pretrial and trial these plaintiffs lose unusually often.
2009-01-01T08:00:00Z
text
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https://scholarship.law.cornell.edu/lsrp_papers/109
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1108/viewcontent/2009_03.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Employment discrimination
Empirical
Employment Practice
Civil Procedure
Labor and Employment Law
Litigation
oai:scholarship.law.cornell.edu:lsrp_papers-1111
2010-04-07T17:51:16Z
publication:lsrp_papers
publication:facpub
publication:facsch
Reflective Intensions: Two Foundational Decision-Points in Mathematics, Law, and Economics
Hockett, Robert C.
This Article, transcribed from a symposium talk given by the author, examines two critical junctures at which foundational decisions must be made in three areas of theoretical inquiry - mathematics, law, and economics. The first such juncture is that which the Article labels the "arbitrary versus criterial choice" juncture. This is the decision point at which one must select between what is typically called an "algorithmic," "principled," "law-like," or "intensionalist" understanding of those concepts which figure foundationally in the discipline in question on the one hand, and a "randomized," "combinatorial," or "extensionalist" such understanding on the other hand.
The second decision point concerns how to respond to certain paradoxes and/or indeterminacies that typically attend recursive, reflexive, or self-referential capacities in the discipline in question. Many practitioners attempt to circumvent or head-off such difficulties merely by fiat: They impose, in the form of axioms, ad hoc restrictions that simply rule out self-reference itself. Other practitioners, by contrast, face the difficulties occasioned by self-reference head-on. They then endeavor to ascertain what these tell us about the underlying structures of the subjects treated of in the disciplines in question.
The Article argues that the most important lesson that has emerged in foundational mathematics since the time of Cantor is that neither a fully intensionalist nor a fully extensionalist understanding of the foundational concepts upon which the discipline is built - whether these be categories, classes, or sets - is sustainable. What the author calls a "thin" form of intensionalism has proved to be the most graceful and intuitively plausible means of accommodating the puzzles raised at the full intensionalist and extensionalist extremes. These means have been discovered, moreover, precisely by reflecting with care upon what the puzzles occasioned by self-reference reveal about cognition as engaged in by self-conscious, freely creative yet norm-observant creatures such as ourselves.
The Article shows that we find the "thin intensionalist" accommodation that it advocates at work in both of the best known nonclassical logics upon which workable, non-paradox-ducking foundational mathematics programs have come to be based: Those are so-called "epistemic," or "intuitionist," logics in the one case, and one or another of the best known "paraconsistent" logics in the other. In effect, the Article shows, these logics compensate for the fully extensional treatments of classes or cognate foundational objects necessary to found Peano arithmetic, by reintensionalizing certain erstwhile extensional, truth-functional logical operators. The latter include negation in the intuitionist case, and either or both of negation and the material conditional in the most attractive paraconsistent cases.
It is no accident, the Article argues, that its thin intensionalist accommodation, within foundational mathematics, of the puzzles arising at the intensional versus extensional choice divide, is discovered precisely upon confronting the puzzles that arise at the self-reference decision-point. For reflection upon our forms of cognition.
2008-04-01T07:00:00Z
text
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https://scholarship.law.cornell.edu/lsrp_papers/112
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1111/viewcontent/2008_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Mathematics
Economics
Economics
Law and Economics
oai:scholarship.law.cornell.edu:lsrp_papers-1112
2010-01-22T18:24:35Z
publication:lsrp_papers
publication:facpub
publication:facsch
Bailouts, Buy-Ins, and Ballyhoo
Hockett, Robert C.
The bailout strategy now being pursued by Treasury under the recently authorized Troubled Asset Relief Plan, if “strategy” it can be called, remains obscure and erratic at best. All the while markets remain jittery and credit remains tight, as the underlying source of our present financial jitters—continued decline in the housing market and still mounting foreclosures—goes unaddressed. This piece proposes an interesting and novel approach to solving the financial problem. If it works out, it would eventually minimize the cost to the government.
2009-04-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/113
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1112/viewcontent/08_029.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Financial bailouts
Economics
Law and Economics
Economics
Law and Economics
oai:scholarship.law.cornell.edu:lsrp_papers-1113
2010-01-22T18:43:29Z
publication:lsrp_papers
publication:facpub
publication:facsch
A Jury of One: Opinion Formation, Conformity, and Dissent on Juries
Waters, Nicole L.
Hans, Valerie P.
Approximately 6 percent of criminal juries hang. But, how many dissenters carry the jury, hang the jury, or conform to the majority’s wishes? This article examines the formation of individual verdict preferences, the impact of deliberation, and the role of the dissenter using data from nearly 3,500 jurors who decided felony cases. Jurors were asked: “If it were entirely up to you as a one-person jury, what would your verdict have been in this case?” Over one-third of jurors, privately, would have voted against their jury’s decision. Analyses identify the characteristics of jurors who dissent, and distinguish dissenters who hang the jury from dissenters who acquiesce. Deliberation procedures, juror role expectations, their evidentiary views, and their sense of fairness affected the likelihood of dissent. Contrary to previous research, deliberations play a vital role in generating juror consensus and shed new light on the debate over the requirement that juries be unanimous in their verdict.
2009-09-01T07:00:00Z
text
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https://scholarship.law.cornell.edu/lsrp_papers/114
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1113/viewcontent/08_030.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
jury
decision making
criminal
deliberations
verdict
Criminal Law and Procedure
Criminal Law
oai:scholarship.law.cornell.edu:lsrp_papers-1115
2010-01-22T19:28:10Z
publication:lsrp_papers
publication:facpub
publication:facsch
Institutional Fixes versus Fixed Institutions
Hockett, Robert C.
A number of philosophers, policy thinkers and activists have despaired over the prospect that global institutions can bring progressive change to the international order. They advocate that those who would change things should place their hopes in global social movements rather than global institutions. This essay humbly suggests that we ought to do both. Global institutions require an active global civil society that includes social movements if they would not lose their senses of mission and purpose. Global social movements for their part require global institutions to serve as focal points for their efforts, which are otherwise threatened with diffusion and dissipation. Indeed, most global institutions are themselves the products of, and in that sense the consummations of, global movements. The relation has always been, and always will be, one of symbiosis.
2006-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/116
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1115/viewcontent/08_032.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Global institutions
global social movements
Social Welfare
Law and Society
oai:scholarship.law.cornell.edu:lsrp_papers-1116
2010-02-02T16:14:04Z
publication:lsrp_papers
publication:facpub
publication:facsch
Valuing the Waiver: The Real Beauty of Ex Ante over Ex Post
Hockett, Robert C.
Irony abounds in connection with demands and proposals made, in the wake of the Enron, Worldcom, and other corporate scandals, that firms be required or encouraged to waive attorney-client privilege. Justice Department officials speak to the importance of "getting at the truth" as trumping firms' interest in confidential internal communications as a prerequisite to compliance with law. They do so notwithstanding their own contrary arguments made on behalf of the secretive Bush administration that employs them. Corporate officers, for their part, speak as though Ralph Nader were the Attorney General when they denounce waiver proposals. They do so notwithstanding the business-friendly nature of the Bush administration. In this essay I suggest that, since what is actually at stake in these waiver debates is value for shareholders, the securities markets, if informationally efficient, are the most apt evaluators of particular firms' waivers of privilege. Provided that the semi-strong form of the efficient capital markets hypothesis is indeed well supported as the literature suggests, share-price response to voluntary ex ante waiver will be the optimal indicator of whether, and how much, waivers of privilege inure to the good or the ill of particular firms.
2007-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/117
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1116/viewcontent/08_033.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
attorney-client privilege
work product doctrine
Legal Profession
Professional Ethics
Legal Ethics and Professional Responsibility
oai:scholarship.law.cornell.edu:lsrp_papers-1118
2010-01-11T16:23:48Z
publication:lsrp_papers
publication:facpub
publication:facsch
Burden of Proof, Prima Facie Case and Presumption in WTO Dispute Settlement
Barceló III, John J.
The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie case, presumption, and burden shifting-are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, and then shift the full burden of proof to the respondent. Neither of these results would be justified. An important task of future AB decisions should be to clarify the existing ambiguity and to develop a more conceptually sound use of burden of proof terminology. The essay argues that the AB should abandon its current terminology (prima facie case, presumption, and burden shifting) and should simply state that the complaining Member bears the burden of proof on its basic claim and that this burden-meaning essentially the burden of persuasion-does not shift during the course of the proceeding. The reverse would hold for the responding Member's defenses.
2009-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/119
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1118/viewcontent/08_035.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
World Trade Organization. Appellate Body
Burden of proof
Prima facie case
Dispute Resolution
Evidence
Dispute Resolution and Arbitration
Evidence
oai:scholarship.law.cornell.edu:lsrp_papers-1120
2009-02-18T16:03:54Z
publication:libpub
publication:lsrp_papers
publication:facpub
publication:facsch
Not Just Key Numbers and Keywords Anymore: How User Interface Design Affects Legal Research
Jones, Julie M.
Legal research is one of the foundational skills for the practice of law. Yet law school graduates are frequently admitted to the bar without adequate competence in this area. Applying both information-foraging theory and current standards for optimal web design, Ms. Jones considers, through a heuristic analysis, whether the user interfaces of Westlaw and LexisNexis help or hinder the process of legal research and the development of effective research skills.
2009-02-07T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/121
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1120/viewcontent/Jones_article.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
legal research
information-foraging
user interfaces
Lexis
LexisNexis
Westlaw
research skills
law school graduates
lawyer competence
Legal Education
Legal Profession
Legal Research and Bibliography
Legal Education
Legal Ethics and Professional Responsibility
Legal Writing and Research
oai:scholarship.law.cornell.edu:lsrp_papers-1122
2010-02-02T18:16:33Z
publication:lsrp_papers
publication:facpub
publication:facsch
Justice in Time
Hockett, Robert C.
Challenges raised by the subject of intergenerational justice seem often to be thought almost uniquely intractable. In particular, apparent conflicts between the core values of impartiality and efficiency raised by a large and still growing number of intertemporal impossibility results derived by Koopmans, Diamond, Basu & Mitra, and others have been taken to foreclose fruitful policy assessment done with a view to the distant future.
This Essay aims to dispel the sense of bewilderment, pessimism and attendant paralysis that afflicts intertemporal justice assessment. It works toward that end by demonstrating that the most vexing puzzles raised by questions of intergenerational justice afflict only one family of justice theories, a family whose members never were coherent to begin with. By contrast, it argues, the correct approach to justice is no more challenged by transtemporal puzzles than is any other exercise in future planning.
The Essay proceeds first by showing that puzzles concerning intergenerational - or what it also calls "intertemporal," "transtemporal," or "diachronic" - justice can be helpfully divided into two classes. One such class the Essay calls "epistemic." The other it calls "analytic." The epistemic puzzles are those occasioned by uncertainties endemic to all contemplation of future contingencies, not simply our justice assessments thereof.
The analytic puzzles, by contrast, afflict only one family of justice conceptions -those that erroneously take maximizing ("efficiency") imperatives to be logically independent of distributive imperatives. The analytic puzzles afflict these conceptions, moreover, irrespective of whether the latter be applied synchronically or diachronically. The supposed intractability of intergenerational justice, that is to say, is in fact nothing more than an incoherence afflicting that mistaken understanding of justice which currently predominates in intertemporal distributive-ethical inquiry.
The Essay next shows that all of the notorious intertemporal impossibility results from Koopmans' on down afflict only the erroneous justice conceptions just mentioned. Indeed, like all of the other best known impossibility results from Arrow's on down, the intertemporal results are no more than instances of a more general incoherence - an incoherence the Author has shown elsewhere to afflict all putatively independent maximizing imperatives mistaken for justice conceptions.
The Essay concludes by showing that the correct, analytically coherent take on justice faces little more challenge from the diachronic than from the synchronic case. In both cases, it demonstrates, the correct account of justice offers straightforward guidance to all who would act in a pragmatic spirit to work justice among persons across space and through time.
2009-09-01T07:00:00Z
text
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https://scholarship.law.cornell.edu/lsrp_papers/123
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1122/viewcontent/lsrp_papers123final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
intergenerational justice
Jurisprudence
Jurisprudence
oai:scholarship.law.cornell.edu:lsrp_papers-1121
2010-01-11T15:12:56Z
publication:lsrp_papers
publication:facpub
publication:facsch
Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases
Blume, John H.
Johnson, Sheri
Seeds, Christopher W.
Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions. But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical definitions. These state deviations have the effect of excluding from Atkins's reach some individuals who plainly fall within the class it protects. This article focuses on the cases of Roger Cherry, Jeffrey Williams, Michael Stallings and others, who represent an ever-growing number of individuals inappropriately excluded from Atkins. Left unaddressed, the state deviations discussed herein permit what Atkins does not: the death-sentencing and execution of some capital defendants who have mental retardation.
2009-07-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/122
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1121/viewcontent/2009_03.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Atkins v. Virginia
Eighth Amendment
Death penalty
Capital punishment
mental retardation
Criminal Law and Procedure
Criminal Law
oai:scholarship.law.cornell.edu:lsrp_papers-1124
2009-11-16T20:23:06Z
publication:lsrp_papers
publication:facpub
publication:facsch
The Twenty-First Century Jury: Worst of Times or Best of Times?
Hans, Valerie P.
In thinking about legal developments, new research findings, and the continuing swirl of controversy over this venerable American institution, I observe the same paradoxical condition that Charles Dickens found in 18th Century London: "It was the best of times; it was the worst of times." There is evidence of both the expansion of jury trial rights, yet contraction of jury trials. Research evidence indicates that juries perform well, yet the 21st Century jury confronts more complex decision making tasks and continuing doubts about its fairness and competence.
2007-06-10T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/125
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1124/viewcontent/07_009final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Juries
Trials
Criminal Law
oai:scholarship.law.cornell.edu:lsrp_papers-1125
2009-11-16T20:33:47Z
publication:lsrp_papers
publication:facpub
publication:facsch
Maintaining Competition in Copying: Narrowing the Scope of Gene Patents
Liivak, Oskar
In supporting gene patents, the patent office, the courts and other supporters have assumed that gene discoveries are identical to traditional inventions and therefore the patent system should treat them as identical. In other words, they have assumed that the relatively broad claims that are used for traditional inventions are also appropriate for encouraging gene discovery. This article examines this assumption and finds that gene discoveries are critically different from traditional inventions and concludes that the patent system cannot treat them as identical.
As a doctrinal matter, this article applies the generally overlooked constitutional requirements of inventorship and originality and concludes that broad claims to gene discoveries cannot be supported because gene discoveries are essentially copied from nature and thus relatively unoriginal. As a policy matter, the article finds that broad gene patents are also a demonstrably worse bargain for society. Broad gene patents run contrary to patent law's own drive to encourage desirable forms of competition.
Having addressed the policy and doctrinal problems with broad gene patents, the article proposes not invalidating gene patents per se but rather narrowing their claim scope. The article proposes a narrower model claim to realign gene patenting with patent law's doctrinal and policy foundations. Following copyright's treatment of low authorship works like maps and charts, the model claim narrows claims in low inventorship works like gene discovery. The model claim protects the initial gene discovery against outright piracy but it is narrow enough to allow for independent creation, and thus competition, from later arriving discoverers.
2007-06-27T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/lsrp_papers/126
https://scholarship.law.cornell.edu/context/lsrp_papers/article/1125/viewcontent/07_010final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
patent law
originality
gene patents
DNA
genes
biotechnology
copyright
Intellectual Property Law
Science and Technology Law
oai:scholarship.law.cornell.edu:facpub-1000
2009-11-19T19:50:16Z
publication:facpub
publication:facsch
Unjust Enrichment and Creditors
Sherwin, Emily
The constructive trust remedy plays an important role in bankruptcy because it places restitution claimants in a position of priority over creditors. According to traditional rules governing constructive trusts, restitution claimants who can identify particular assets in the debtor's hands as products of an unjust enrichment recover in full, to the exclusion of other unsecured creditors. The draft Restatement (Third) of Restitution and Unjust Enrichment endorses this outcome with only minor qualifications.
The supposed basis for a constructive trust is unjust enrichment: courts grant the remedy to prevent the defendant from profiting at the claimant's expense. In bankruptcy, the parties who bear the burden of the remedy are the defendant's creditors. Therefore, at least in theory, the relevant question is whether creditors will be enriched by sharing in the assets subject to the claimant's restitution claim.
The draft Restatement recognizes this point, but maintains that in almost all circumstances, creditors will be unjustly enriched if allowed to share in assets subject to a constructive trust claim because the constructive trust claimant is the "equitable" owner of those assets. The debtor's obligations to general creditors should not be paid from someone else's assets.
In this article, I examine the notion of equitable title and conclude that it does not support the conclusion that priority for constructive trust claimants is necessary to prevent unjust enrichment of creditors. The traditional rule of automatic, or near-automatic, priority may nevertheless be sound, but its justifications lie in administrative simplicity and tradition rather than unjust enrichment.
2007-10-01T07:00:00Z
text
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https://scholarship.law.cornell.edu/facpub/1
https://scholarship.law.cornell.edu/context/facpub/article/1000/viewcontent/07_008final.pdf
Cornell Law Faculty Publications
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Unjust enrichment
constructive trusts
Bankruptcy Law
oai:scholarship.law.cornell.edu:facpub-1001
2009-11-19T20:28:13Z
publication:facpub
publication:facsch
Government Lawyers, Democracy, and the Rule of Law
Wendel, W. Bradley
Criticism of the “politicization” of the role of federal government lawyers has been intense in recent years, with the scandals over the hiring practices at the Department of Justice, and the advice given to the administration by lawyers at the Office of Legal Counsel, concerning various aspects of the post-9/11 national security environment. Unfortunately, many of these critiques do not hold up very well under scrutiny. We lack a coherent account of what it means to “politicize” the practice of interpreting and applying the law. This paper argues that our evaluative discourse about the ethics of government lawyers is inadequately theorized. In particular, terms that are popularly used as epithets, such as “partisan,” “politicized,” and “biased” lawyering, as well as terms of praise such as “independence” and “impartiality,” need to be given a philosophically robust foundation. This is more difficult than it seems, however, because we expect government lawyers to respect two very different democratic ideals - majoritarian self-rule and the rule of law. The most sophisticated attempts to elaborate a theory of government lawyers’ ethics have tended to overemphasize one of these ideals at the expense of the other. The aim of this paper, therefore, is to hold on to the distinction between faithful interpretation of the law, on the one hand, and improper politicization of the role of government lawyer, on the other, while acknowledging that considerations of democratic legitimacy require that lawyers respect the substantive content of the President’s non-neutral policy agenda.
2009-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/2
https://scholarship.law.cornell.edu/context/facpub/article/1001/viewcontent/clsops_papers_29.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Government lawyers
Legal profession
Professional ethics
Jurisprudence
oai:scholarship.law.cornell.edu:facpub-1002
2009-12-07T18:17:02Z
publication:facpub
publication:facsch
Exorbitant Jurisdiction
Clermont, Kevin M.
Palmer, John R.B.
Exorbitant territorial jurisdiction in civil cases comprises those classes of jurisdiction, although exercised validly under a country's rules, that nonetheless are unfair to the defendant because of a lack of significant connection between the sovereign and either the parties or the dispute. The United States, France, and most of the rest of the world exercise a good deal of exorbitant jurisdiction so defined. In the United States, an emphasis on power derived from territoriality has led to jurisdictional restraint in some respects, but has also allowed general jurisdiction based solely on transient physical presence, the attachment of property, or extensive business activities unrelated to the cause of action. In contrast, the civil law's emphasis on fairness has kept France from developing these exorbitant bases of jurisdiction, but has failed to restrain it from asserting general jurisdiction based solely on the plaintiff's nationality. A number of other countries have added some wrinkles to their own brands of exorbitant jurisdiction. We conclude (1) that although the extent, details, and phrasing of the world's exorbitant bases of jurisdiction differ among nations, there appears to be a common core in the nations' urge to disregard defendants' interests in order to give their own people a way to sue at home, when the forum country will be able to enforce the resulting judgment locally, and (2) that even though exorbitant jurisdiction is thus understandable, the ultimate goal should remain its elimination by international agreement.
2006-04-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/3
https://scholarship.law.cornell.edu/context/facpub/article/1002/viewcontent/05_024final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Exorbitant jurisdiction
Civil Procedure
Jurisdiction
oai:scholarship.law.cornell.edu:facpub-1003
2009-12-07T19:27:09Z
publication:facpub
publication:facsch
Legal Ethics and the Separation of Law and Morals
Wendel, W. Bradley
This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling in the context of an analysis of the so-called torture memos prepared by lawyers in the Office of Legal Counsel in 2002. The principal claim of the paper is that the torture memos are morally bankrupt because they are legally bankrupt. The lawyers' actions were wrong from a moral point of view because the lawyers failed with respect to their obligation to treat the law with respect, not simply as an inconvenient obstacle to be planned around. The morality of torture plays no direct role in this analysis. Although it is easy to say at a high level of generality that torture is immoral, it is possible for reasonable people to disagree in good faith over application questions, such as whether a particular interrogation technique should be deemed torture, or whether there may be some moral justification for torture in a particular case. In order for citizens and law enforcement officials to cooperate in the project of defending national security while also respecting human rights, it is necessary to reach some provisional settlement of these normative debates. Because the law enables social action in the face of disagreement, it is entitled to respect by affected individuals and also lawyers acting in a representative capacity.
The position defended in this paper contrasts with two widely accepted views. The first, which I call the standard lawyers' defense of the torture memos, maintains that moral values are excluded from legal reasoning. This position rests on a misunderstanding of legal positivism or, in its more sophisticated versions, on an argument for the exclusive or hard strand of positivism. The more plausible version of inclusive positivism permits moral values to become incorporated into conventional practices of legal reasoning. The second view, which is more common within the academic legal ethics literature than among practicing lawyers, holds that the role of lawyer is directly moralized, in the sense that a lawyer acting in a professional capacity is bound by the same moral principles as an ordinary moral agent would be in the same situation. In order to defend this position, it is necessary to briefly set out the argument for the authority of law that I have defended at length elsewhere. This paper further fleshes out that argument by providing a hypothetical narrative suggesting how law derives its authority from its capacity to enable coordinated social activity in the face of persistent moral disagreement, specifically regarding the morality of torture.
2005-11-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/4
https://scholarship.law.cornell.edu/context/facpub/article/1003/viewcontent/05_011final.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Torture memos
Legal ethics
International Law
Legal Ethics and Professional Responsibility
oai:scholarship.law.cornell.edu:facpub-1005
2010-01-11T14:59:33Z
publication:facpub
publication:facsch
Crime Labs and Prison Guards: a Comment on Melendez-Diaz and its Potential Impact on Capital Sentencing Proceedings
Blume, John H.
Paavola, Emily C.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right "to be confronted with the witnesses against him." Four years ago, in Crawford v. Washington, the United States Supreme Court held that this right bars the admission of testimonial hearsay statements against criminal defendants, regardless of whether or not the statements fall within an evidentiary hearsay exception. It was a decision that other courts later described as a "bombshell," a "renaissance," and "a newly shaped lens" through which to view the Confrontation Clause. The case generated an extensive amount of discussion among legal commentators.
Since its decision in Crawford, the Court has had to grapple regularly with questions that Crawford left unanswered. This term, the Court is poised to determine yet another unanswered Crawford question in Melendez-Diaz v. Massachusetts: "[w]hether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is 'testimonial' evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)."
The outcome in Melendez-Diaz will have a significant impact on America's criminal justice system in general. Moreover, the case could raise important implications in capital sentencing proceedings.
Parts I and II of this comment provide a brief overview of Crawford and its progeny. Part III discusses the issue raised in Melendez-Diaz and its potential impact. Part IV explains how Melendez-Diaz could affect capital sentencing and uses the case of State v. Owens as an example.
2009-01-01T08:00:00Z
text
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https://scholarship.law.cornell.edu/facpub/6
https://scholarship.law.cornell.edu/context/facpub/article/1005/viewcontent/2009_04.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Confrontation Clause
Crawford v. Washington
Melendez-Diaz v. Massachusetts
Capital punishment
Death penalty
Criminal Law
oai:scholarship.law.cornell.edu:facpub-1004
2012-03-02T13:12:56Z
publication:facpub
publication:facsch
Back to a Future: Reversing Keith Simpson's Death Sentence and Making Peace with the Victim's Family through Post-conviction Investigation
Blume, John H.
Johnson, Sheri Lynn
In 1993, Keith Simpson was arrested for the murder of Joe Harrison; in 2006, he was sentenced to life with the possibility of parole in 2022. Between those two events, Simpson was sentenced to death, had his death sentence vacated by the post-conviction relief court, reached a plea agreement with the victim's family and the new Solicitor, saw the agreement invalidated when the Attorney General's office overrode the family and the Solicitor by appealing the post-conviction court's decision, lost the lower court's decision to an appellate reversal, and won a cross-appeal for a new trial. You just never know. You don't know how a capital case will end, of course, but more importantly, you don't know what facts will determine how it ends. Even now, we-the authors, and post-conviction counsel for Simpson, would be hard pressed to say which facts mattered the most. One reason for this difficulty is that different facts seem to have mattered to the two different courts that reviewed this case. The one thing we do know about Simpson v. State is that investigation mattered. This is a lesson that most of the life stories in this volume repeat, in one form or another, and it's a lesson that bears repetition. Indeed, in the post-conviction setting, the likelihood of review by more than one court along with the possibility that different facts will matter to different courts increases the need for a truly comprehensive investigation, one that covers the range of what might matter. We think, moreover, there may be a second lesson in this case and our belief in the importance of that lesson is the reason we chose Keith Simpson's story. Here is the more speculative and subtle lesson: To be persuasive, postconviction mitigation stories often need a retelling of the client's life and a retelling of the crime itself. Put differently, as much as possible, "life stories" need to be both consistent and complete.
2009-07-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/5
https://scholarship.law.cornell.edu/context/facpub/article/1004/viewcontent/x2009_02.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Post-conviction investigation
Keith Simpson
Capital punishment
Death penalty
Criminal Law
oai:scholarship.law.cornell.edu:facpub-1006
2012-03-01T21:58:44Z
publication:facpub
publication:facsch
An Empirical Look at Atkins v. Virginia and its Application in Capital Cases
Blume, John H.
Johnson, Sheri Lynn
Seeds, Christopher
In Atkins vs. Virginia, the Supreme Court declared that evolving standards of decency and the Eighth Amendment prohibit the death penalty for individuals with intellectual disability (formerly, "mental retardation"). Both supporters and opponents of the categorical exemption, however, have criticized the Atkins opinion. The Atkins dissent, for example, urged that the decision would open the gates of litigation to a flood of frivolous claims. Another prominent criticism, heard from those more supportive of the Court's ruling, has been that the language the Court used communicating that states must "generally conform" to the clinical definitions of mental retardation is ambiguous enough to permit states to stray from the clinical definitions and, consequently, for death eligibility to vary depending upon the jurisdiction in which a defendant is charged. This Article presents preliminary data responsive to these issues, and reports three basic findings. First, Atkins has not opened floodgates of non-meritorious litigation. Second, the success rates for Atkins claims vary dramatically between states and state deviations from the clinical definitions appear to have a palpable impact. Third, as compared to their representation on death row, African-American defendants both file and win a disproportionately high number of Atkins claims.
2009-04-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/7
https://scholarship.law.cornell.edu/context/facpub/article/1006/viewcontent/2009_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Atkins v. Virginia
Death penalty
Capital punishment
Intellectual disability
Criminal Law
oai:scholarship.law.cornell.edu:facpub-1007
2010-01-11T16:30:20Z
publication:facpub
publication:facsch
Developing Countries and the WTO
Barceló III, John J.
When the World Trade Organization (WTO) was founded ten years ago on January 1, 1995, commentators hailed it as a major transformation of the world trading system. The new, more juristic and permanent World Trade Organization replaced the previous, more pragmatic and ad hoc General Agreement on Tariffs and Trade (GATT). The industrial countries, led by the United States, the EU, and Japan, brought about this change to consolidate and deepen their own and the world’s commitment to an open trading system. Their support for the change was crucial because they dominated the GATT, and they continue to dominate the WTO.
The world of trade is changing, however, in another way. Developing countries, led by China, India, and Brazil, are playing an increasingly important role and are having a dramatic impact on the WTO’s agenda. The earliest signs of this second transformation were visible in the Uruguay Round negotiations that led up to the WTO’s founding. In another context I have referred to this shift as a transition from a “Trade as Aid” to a “Trade as Trade” regime for developing countries—a transition that is still unfolding.
2005-07-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/8
https://scholarship.law.cornell.edu/context/facpub/article/1007/viewcontent/2005_01.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
World Trade Organization
Developing countries
International Trade Law
oai:scholarship.law.cornell.edu:facpub-1008
2010-01-11T16:49:20Z
publication:facpub
publication:facsch
The Paradox of Excluding WTO Direct and Indirect Effect in U.S. Law
Barceló III, John J.
2006-01-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/9
https://scholarship.law.cornell.edu/context/facpub/article/1008/viewcontent/2006_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
World Trade Organization
International and municipal law
International Law
International Trade Law
oai:scholarship.law.cornell.edu:facpub-1010
2010-03-04T18:54:20Z
publication:facpub
publication:facsch
A Statement of Progressive Property
Alexander, Gregory S.
Peñalver, Eduardo M.
Singer, Joseph W.
Underkuffler, Laura S.
What would a progressive theory of property look like? Although such a theory might take root within any number of specific normative frameworks, this Statement of Progressive Property outlines several features progressive theories of property should have in common. The Statement argues that we should understand property as both an idea and an institution, that property confers power and shapes community, both in its legal and social dimensions, and that property should be understood as serving plural and incommensurable values whose accommodation is possible through reasoned deliberation and practical judgment.
2009-05-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/11
https://scholarship.law.cornell.edu/context/facpub/article/1010/viewcontent/2009_04.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Property Law and Real Estate
oai:scholarship.law.cornell.edu:facpub-1009
2010-01-11T19:37:27Z
publication:facpub
publication:facsch
Reply: The Complex Core of Property
Alexander, Gregory S.
2009-05-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/10
https://scholarship.law.cornell.edu/context/facpub/article/1009/viewcontent/2009_02.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Property Law and Real Estate
oai:scholarship.law.cornell.edu:facpub-1011
2010-01-11T20:21:08Z
publication:facpub
publication:facsch
Women in the Legal Profession from the 1920s to the 1970s: What Can We Learn From Their Experience About Law and Social Change?
Bowman, Cynthia Grant
2009-01-01T08:00:00Z
text
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https://scholarship.law.cornell.edu/facpub/12
https://scholarship.law.cornell.edu/context/facpub/article/1011/viewcontent/2009_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Law and Gender
Legal History
oai:scholarship.law.cornell.edu:facpub-1013
2010-01-12T19:28:37Z
publication:facpub
publication:facsch
To Whom Do We Refer When We Speak of Obligations to "Future Generations"? Reproductive Rights and the Intergenerational Community
Colb, Sherry F.
This Article argues that an analysis of reproductive rights in the context of future generations yields three insights. First, potential people (who may or may not come into being) do not-by any prevailing approach to morality-have a right to be created by us. They may therefore be ethically "prevented" from coming into existence with what I call the "Offspring Selection Interest" ("OSI"). Second, the OSI is often conflated with the distinct reproductive rights interest in protecting one's body against unwanted intrusion, the "Bodily Integrity Interest" ("BII"), with resulting confusion for reproductive rights discourse. And third, once we distinguish the OSI from the BII, we find a surprising amount of agreement, even among present-day abortion opponents, with the premise of abortion rights: that the BII is both weighty and directly implicated in the abortion decision.
To find evidence of consensus regarding the OSI, this Article turns to western religious traditions as well as to modern legal rules. To find consensus on the BII, this Article relies on accounts of abortion that animate the pro-choice and pro-life communities within the United States. The goal of the Article is largely descriptive rather than normative: it aims to identify two interests that underlie modern reproductive rights and to demonstrate that both interests are widely accepted by groups that otherwise appear to fall on opposite ends of the reproductive rights spectrum.
2009-09-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/14
https://scholarship.law.cornell.edu/context/facpub/article/1013/viewcontent/2009_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Reproductive rights
Law and Gender
oai:scholarship.law.cornell.edu:facpub-1014
2010-01-12T19:52:34Z
publication:facpub
publication:facsch
Why is Torture Different and How Different Is It?
Colb, Sherry F.
Almost every serious commentator to address the moral and legal question of torture has taken for granted the proposition that the infliction of torture is a sufficiently grave evil to require a distinctly demanding moral scrutiny, one that categorically sets torture apart from other terrible things (including killing) that human beings do to one another. To borrow from the Supreme Court's death penalty jurisprudence, most people agree that torture is "different. "
Under the Eighth Amendment, the fact that death is different does not rule out its application; it simply alters the relevant procedural and substantive standards. By contrast, many scholars believe torture should be entirely out of the question, and positive law gives effect to this view. This Article asks why. Why does torture merit its own moral category when killing does not?
The Article asks first whether torture is in fact "different" at all. To this end, the Article sets out a novel hypothetical case in which a torturer acts in true self-defense. It thereby demonstrates that when circumstances are truly identical, and the "self-defense" characterization is accurate, the use of torture becomes no more troubling than the use of lethal force.
The Article then turns to the "ticking bomb" scenario and asks what makes this case different enough from genuine self-defense to engender such division among those who support the right to justifiable homicide. Having demonstrated that the difference between torture and killing fails to account for the distinction, the Article develops a series of hypothetical examples that produce three criteria that will justify the use of torture and/or lethal force: First, torture or killing must be used against a wrongdoer; second, the force must be an effective means of saving innocents; and third, the status of the person to be killed or tortured as a wrongdoer must be closely tied to the utility of selecting him. It cannot, in other words, be a coincidence that the person whose torture will save lives also happens to be a wrongdoer.
Unlike other work on the subject of torture, this Article does not attempt to persuade the reader of the legality, illegality, morality, or immorality of torture under particular circumstances. Instead, it attempts to explain the nature of the debate and shed light on its evident intractability. The Article concludes that disagreements over the morality of torture are likely to persist because one can make a reasonably persuasive case both for and against the satisfaction of the third criterion I unearth-the tightness of fit between a subject's wrongdoing and the utility of torturing him-in the case of the "ticking bomb" case.
2009-03-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/15
https://scholarship.law.cornell.edu/context/facpub/article/1014/viewcontent/2009_02.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Torture
Self defense
Criminal Law
oai:scholarship.law.cornell.edu:facpub-1012
2010-01-12T18:46:39Z
publication:facpub
publication:facsch
Standards of Proof Revisited
Clermont, Kevin M.
This Essay focuses not on how fact-finders process evidence but on how they apply the specified standard of proof to their finding. The oddity that prompts speculation is that, in noncriminal cases, the common law asks only that the fact appear more likely than not, while the Civil Law seems to apply the same high standard in these cases as it does in criminal cases. As a psychological explanation of the cognitive processes involved, some theorists posit that the bulk of fact-finding is an unconscious process, powerful but dangerous, which generates a level of confidence against which the fact-finder could apply the standard of proof. But this foggy confidence-based theory fails because standards of proof should, and factfinders arguably do, concern themselves with probability rather than confidence. Psychology also cannot explain the divide between the common law and the Civil Law because the real explanation likely lies in the different goals that the two procedural systems pursue through their standards of proof.
2009-04-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/13
https://scholarship.law.cornell.edu/context/facpub/article/1012/viewcontent/2009_02.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Proof
Common law
Civil Law
Evidence
oai:scholarship.law.cornell.edu:facpub-1015
2010-01-12T20:16:34Z
publication:facpub
publication:facsch
Judicial Independence in Excess: Reviving the Judicial Duty of the Supreme Court
Carrington, Paul D.
Cramton, Roger C.
Independence from extrinsic influence is, we know, indispensable to public trust in the integrity of professional judges who share the duty to decide cases according to preexisting law. But such independence is less appropriate for those expected to make new law to govern future events. Indeed, in a democratic government those who make new law are expected to be accountable to their constituents, not independent of their interests and unresponsive to their desires. The Supreme Court of the United States has in the last century largely forsaken responsibility for the homely task of deciding cases in accord with preexisting law and has settled into the role of a superlegislature devoted to making new law to govern future events. Citizens who see our judges as primarily engaged in this political role are understandably less tolerant of their claim to independence and are more intent on holding them to account for unwelcome decisions. Such popular dissatisfaction, or even unrest, with our judiciay is a source of prudent concern expressed by Justices, among others. This Article responds to that shared concern with a proposal to restore the Supreme Court to a more purely judicial role by reviving the duty of Justices to decide cases. It would require the Court to decide numerous cases certified by a group of experienced lower federal court judges as the cases most in need of their judicial attention. This proposal is intended not only to strengthen the claim to independence of the Supreme Court, but also that of other courts subject to its leadership.
2009-03-01T08:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/16
https://scholarship.law.cornell.edu/context/facpub/article/1015/viewcontent/2009_01.pdf.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Judicial independence
United States Supreme Court
Courts
Jurisprudence
Legal History
oai:scholarship.law.cornell.edu:facpub-1016
2010-02-11T21:15:15Z
publication:facpub
publication:facsch
Insource the Shareholding of Outsourced Employees: A Global Stock Ownership Plan
Hockett, Robert C.
With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear to be up for grabs.
It isn’t clear, on reflection, how to regard these developments from a normative point of view. On the one hand, there seems no gainsaying that the gradual removal of transnational trade and investment barriers have resulted in more rapid economic growth worldwide. And that growth appears to be lifting many once desperately poor persons out of their erstwhile penury. Yet on the other hand, there also is no denying that global trade and investment liberalization are wreaking losses at least as conspicuous as the gains. For many if not most of the victims of globalization are those who till recently occupied positions much like those now coming to be occupied by globalization’s more sympathetic beneficiaries, and who climbed out of them via precisely those legislated standards that offshoring firms now evade. Might we pay Peter without robbing Paul?
This Article proposes an ethically and intuitively attractive answer to that question rooted in financial engineering. The key is to channel a portion of the globalization-wrought gains reaped by outsourcing firms to the outsourced employees themselves. That way the latter are directly benefited by the very processes that currently are harming them. The method proposed is to adapt the already familiar Employee Stock Ownership Plan, or “ESOP,” to spread shares not simply to current labor, but now to “shadow” labor as well. The Article also proposes means of diversifying the portfolio risk that will face “OutsourceSOP” participants, and sketches a supporting role for such international financial institutions as the IMF and the World Bank. In the long run, the Article concludes, we have here the makings of a future “Global Shareholder Society.”
2008-10-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/17
https://scholarship.law.cornell.edu/context/facpub/article/1016/viewcontent/08_005.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Antitrust and Trade Regulation
Banking and Finance Law
Business Organizations Law
Commercial Law
International Law
International Trade Law
Law and Economics
Law and Politics
Law and Society
Legislation
Public Law and Legal Theory
Social Welfare Law
oai:scholarship.law.cornell.edu:facpub-1017
2010-01-19T21:08:19Z
publication:facpub
publication:facsch
Daniel Defoe and the Written Constitution
Meyler, Bernadette
Today, as constitutionalism spreads around the globe, it is embodied de rigueur in written documents. Even places that sustained polities for centuries without a written constitution have begun to succumb to the lure of writtenness. America, we think, spawned this worldwide force, inaugurating a radically new form of political organization when it adopted the U.S. Constitution as its foundational text. Yet the notion of the written constitution had, in fact, received an earlier imprimatur from the pen of Daniel Defoe, English novelist, political pamphleteer, and secret agent. Plying his trades in the early eighteenth century, Defoe, now known largely as the author of Robinson Crusoe, in a number of disparate literary and political guises advocated the development of written documents setting forth the basic principles of a governmental order and restraining the power of legislative majorities. Just as the individualist ethos of Robinson Crusoe grabbed the American imaginary from the mid-eighteenth-century onwards, a conception of written constitutionalism similar to the one promulgated by Crusoe’s author took root on American soil.
My article elaborates the contours of written constitutionalism that Defoe outlined and demonstrates the close alignment of some of Defoe’s arguments with the scholarship of today, an alignment that suggests the persistence of a number of the mythic ideals of written constitutionalism that Defoe constructed in the early eighteenth century. Methodologically, the article illuminates the importance of looking to the emerging genre of the novel as well as other widely read forms -- rather than focusing exclusively on more traditional historical sources -- to discern the construction of a popular imaginary at the time of the Founding. At the same time, however, the article argues that the differences between the account of written constitutionalism that emerges out of Defoe’s works and the claims made for written constitutionalism by Chief Justice Marshall in Marbury v. Madison and legal academics today illuminate the contingency of what writing may mean for constitutionalism and demonstrate the ways in which the mythic entailments of writing are sometimes precisely that -- myths.
2008-11-01T07:00:00Z
text
application/pdf
https://scholarship.law.cornell.edu/facpub/18
https://scholarship.law.cornell.edu/context/facpub/article/1017/viewcontent/08_008.pdf
Cornell Law Faculty Publications
Scholarship@Cornell Law: A Digital Repository
Daniel Defoe
Constitutionalism
Constitutional Law
Legal History
1065794/oai_dc/100//