Cornell Law Library Prize for Exemplary Student Research Papers

Annexation of the Jury's Role in Res Judicata Disputes: The Silent Migration from Question of Fact to Question of Law

Steven J. Madrid — Mon, 11 Feb 2013 11:39:23 PST

When the application of res judicata involves factual disputes, the jury must be the judicial actor to resolve these discrepancies. The fact-law distinction, which gives questions of fact to the jury and questions of law to the judge, has guided American courts for hundreds of years. From the time of the adoption of the Seventh Amendment until the end of the nineteenth century, courts have viewed res judicata disputes as factual determinations within the province of the jury.The migration from question of fact to question of law in the twentieth century lacked any proffered legal justification, and even as the courts proclaimed res judicata as distinctively within the judge’s dominion, they still acknowledged the factual nature of the res judicata inquiry. Even the judicial screening doctrine and modern Seventh Amendment jurisprudence cannot justify holding res judicata as a question of law. Thus, although state and federal courts hold res judicata as a question of law, there is no legal justification for doing so. By trying the preclusion claim separately in a bifurcated trial, courts protect litigants’ constitutional right to a jury trial.

Targeted Killing and Just War: Reconciling Kill-Capture Missions, International Law, and the Combatant Civilian Framework

Louis H. Guard — Tue, 15 May 2012 08:13:00 PDT

This paper addresses how kill-capture missions can be reconciled with the underlying principles of just war theory. Part I of this paper outlines the traditional just war combatant-civilian framework and the basic legal doctrines currently thought to apply to targeted killing. Part II advances a new conception of the traditional combatant-civilian framework that incorporates the third category of alternative belligerents by showing how groups such as al Qaeda are neither combatants nor non-combatants in the just war sense and thus compel the creation of a third conceptual category. Part III of the paper applies the new framework to the kill-capture mission scenario and its core tension between the duty to capture or kill while addressing concerns and weaknesses of the new framework before concluding.

Improving Drinking Water Distribution under Increasing Global and Regional Economic Integration

William Garthwaite — Tue, 07 Jun 2011 09:21:08 PDT

This paper addresses the issue of whether increasing global and regional economic integration can bring direct benefits for improving drinking water provision for the poorest population segments in urban and peri-urban areas in developing countries. The “sector” that encapsulates drinking water distribution in developing urban areas is a very complex mixture of distribution modes and different public and private actors, each with different capabilities and characteristics. Experience and academic studies have provided a set of current best management practices for focus areas and objectives to improve drinking water distribution for the poorest segments of the population in these areas. Drinking water distribution is at its heart a service that could potentially fall under the GATS umbrella, but direct results from GATS on this sector in developing countries are likely to be negligible. However, slight positive benefits are promised by the general trend that GATS both represents and fosters, and thus this analysis provides support for the position that much of the hype that GATS will undermine services to the poor is misdirected.

Law on the Books vs. Law in Action: Under-Enforcement of Morocco's Reformed 2004 Family Law, the Moudawana

Ann Marie Eisenberg — Mon, 23 May 2011 05:48:15 PDT

This Note focuses on women’s family law rights in Morocco, a country located in northwestern Africa, and often regarded as the western boundary of the Muslim-Arab world. Significantly, despite Morocco’s shared roots with nations such as Saudi Arabia in culture, religion, and language, the Moroccan government has interpreted similar traditions to yield a starkly different stance: gender equality is desirable. Morocco’s new Moudawana, the 2004 legislation on family law with provisions largely derived from Islamic sources, confers unprecedented rights on Moroccan women.

Part I of this Note evaluates the Moudawana in light of its break with traditional Shari’a, alongside its fidelity to other Islamic law principles in giving Moroccan women unprecedented rights. While the new Moudawana has provisions addressing inheritance, children’s rights, and assets within a marriage, this Note focuses on the provisions concerning marriage and divorce because they provide the simplest and most accessible illustrations of the law’s practical efficacy. Part II, with the aid of qualitative evidence gathered in rural Morocco, posits that the Moudawana is not enforced universally, and that under-enforcement likely results from deeply entrenched societal factors, as well as more immediate influences. Last, Part III proposes additional reforms to the Moudawana and implementation mechanisms. These proposed reforms would better account for the complex realities of rural life in Morocco, as well as the fact that the Moudawana affronts many people’s value systems, undermining its efficacy. A basis for the proposed reforms is one human rights NGO’s experimental paralegal program in Sierra Leone, which works to reconcile rights-based law with rural cultural norms.