Copyright (c) 2009 Cornell Law Library All rights reserved. http://scholarship.law.cornell.edu/clsops_papers Recent documents in Cornell Law Faculty Working Papers en-us Thu, 19 Nov 2009 09:05:04 PST 3600 http://scholarship.law.cornell.edu/clsops_papers/62 http://scholarship.law.cornell.edu/clsops_papers/62 Wed, 07 Oct 2009 10:13:42 PDT This paper is the first comprehensive examination of modern English-only laws as applied to voting materials. In short, I argue that these English-only policies are constitutionally suspect. After providing background about the English-only movement and the recent high-profile Iowa decision, the piece considers complex and uncertain areas of constitutional law, outlining how one might argue that English-only laws violate the U.S. Constitution and the federal Voting Rights Act. Michael A. Zuckerman http://scholarship.law.cornell.edu/clsops_papers/61 http://scholarship.law.cornell.edu/clsops_papers/61 Wed, 07 Oct 2009 07:53:05 PDT In 1994, Congress passed legislation stating that Presidents elected to office after January 1, 1997 would no longer receive lifetime Secret Service protection. Such legislation was unremarkable until the first Black President--Barack Obama--was elected. From the outset of his campaign until today, and likely beyond, President Obama has received unprecedented death threats. These threats, we argue, are at least in part tied to critics' and commentators' use of symbols, pictures, and words to characterize Obama as a primate in various forms. As a point of departure, we refer specifically to the racist humor in Sean Delonas' controversial New York Post cartoon of February 2009. Against this backdrop while looking to history, cultural studies, theories of humor, federal case law, as well as cognitive and social psychology, we explore how the use of seemingly harmless imagery may still be racially-laden and evoke violence against its object. By employing this rigorously interdisciplinary approach to the topic, we bridge the theoretical with the empirical in order to make a compelling case for the direct link between jokes--and cultural symbolism more broadly--and assassination threat to the United States' first Black President. Gregory S. Parks http://scholarship.law.cornell.edu/clsops_papers/60 http://scholarship.law.cornell.edu/clsops_papers/60 Wed, 07 Oct 2009 07:26:08 PDT This Note considers application of the constitutional law principle of "one person, one vote" to campus elections at public universities. Part I of the Note discusses the history, scope, and current application of the "one person, one vote" principle. Part II.A considers whether elected student governments at public universities might be sufficiently governmental to trigger "one person, one vote." Assuming they are, Part II.B uses the elected student governments at the University of Georgia and the University of Michigan as representative examples of how current methods of student government apportionment violate "one person, one vote." Finally, notwithstanding constitutional concerns, Part II.C argues that student governments should comply with "one person, one vote" as a matter of good policy. Michael A. Zuckerman http://scholarship.law.cornell.edu/clsops_papers/59 http://scholarship.law.cornell.edu/clsops_papers/59 Tue, 06 Oct 2009 05:40:13 PDT The Chinese state does not allow rural collectives to sell land, but takes land from them and makes it available on the urban property market. While rural land rights are thus easily obliterated, the newly created urban rights in what used to be rural land enjoy legal protection. The state justifies these land takings by the need for urbanization and economic growth. The takings have resulted in an impressive contribution of the construction and property sector to state revenue and GDP growth, but also in unfairness toward peasants evicted from their land and homes. The example discussed here shows that certain economic theories of property rights are consistent with discrimination and should therefore be rejected. A further conclusion is that we must reconsider the claim that property rights are desirable because they serve economic growth. The discussion here contributes to an understanding of property in terms of dignity, rather than wealth. Eva M. Pils http://scholarship.law.cornell.edu/clsops_papers/58 http://scholarship.law.cornell.edu/clsops_papers/58 Fri, 14 Aug 2009 05:15:01 PDT The U.S. Supreme Court has revolutionized the law on pleading, by its suggestive Bell Atlantic Corp. v. Twombly and definitive Ashcroft v. Iqbal. But these decisions do more than redefine the pleading rules: by inventing a test for the threshold stage of a lawsuit, they have destabilized the entire system of civil litigation. The destabilization should rekindle a wide conversation about fundamental choices in designing our legal system. Those choices are debatable. The bone picked with the Court is not that it has taken the wrong path for pleading, but that it blazed a new and unclear path alone and without adequate warning or thought. The point of this Article is that wherever you stand on pleading--even if you think the federal litigation system is wildly out of control with many frivolous suits, or instead if you think the role of pleading should be further purified to eliminate all of its screening function--you should find these recent decisions lamentable.The Article describes the Court's choice to shift from minimal notice pleading to a robust gatekeeping regime, and next gives some reasons for thinking the Court's course on this important matter may promise the worst of both worlds. Then, after some thoughts on the Court's possible motivation, it briefly offers some ways out of the bog. Kevin M. Clermont http://scholarship.law.cornell.edu/clsops_papers/57 http://scholarship.law.cornell.edu/clsops_papers/57 Wed, 12 Aug 2009 13:03:20 PDT One of the longest shadows cast by the Bush Administration's War on Terror involves the fate of the torture lawyers who authored or signed memoranda regarding torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by a general confusion in U.S. law over the necessity defense. Second, this Article therefore argues that necessity, when properly understood, constitutes two separate defenses, one a justification and the other an excuse, each with its own standard. The necessity justification does not apply to government agents who tortured detainees, though necessity as an excuse might apply under certain conditions. However, excused necessity like all excuses does not generate a corresponding exculpation for accomplices, like the torture lawyers, who might be said to have aided and abetted the principal perpetrators. Third, the Article questions the usual assumption of lawyers that they are only liable as accomplices if they supported their client's criminality through frivolous legal arguments, though even under this standard the torture lawyers might face accomplice liability for some of their arguments. Finally, commentators are wrong that such prosecutions would be unprecedented. The United States itself prosecuted Nazi officials at Nuremberg for their failure to properly advise the Reich that their conduct violated international law. Jens D. Ohlin http://scholarship.law.cornell.edu/clsops_papers/56 http://scholarship.law.cornell.edu/clsops_papers/56 Wed, 12 Aug 2009 12:51:28 PDT Financial regulation today is largely framed by traditional business categories. The financial markets, however, have begun to bypass those categories, principally over the last thirty years. Chief among the changes has been convergence in the products and services offered by traditional intermediaries and new market entrants, as well as a shift in capital-raising and risk-bearing from traditional intermediation to the capital markets. The result has been the reintroduction of old problems addressed by (but now beyond the reach of) current regulation, and the rise of new problems that reflect change in how capital and financial risk can now be managed and transferred.Consider the growth of the private credit markets. Risk management is a key function of intermediation and at the heart of financial regulation. Banks and insurance companies, however, can now rely on new capital markets instruments, including credit default swaps, to transfer risk to third parties - in effect, outsourcing risk management to new entrants, like hedge funds, which largely fall outside the current regulatory framework. Among old problems, hedge funds (like banks and other intermediaries) are likely to incur greater risk than is socially optimal, absent regulation or other restraint. New problems include the difficulty of managing risk among a diverse group of capital markets investors. Recent crises involving American International Group (AIG), Bear Stearns, and money market funds tell a similar story.In this Article, I begin to assess the current U.S. approach to financial regulation, in light of recent changes in the financial system, and offer a tentative way to address gaps in proposals for regulatory reform. Regulators must focus on the principal problems that financial regulation is intended to address - relating to financial stability and risk-taking - without regard to fixed categories, intermediaries, business models, or functions. Doing so, however, requires a prospective assessment of the markets, a different approach from the reactive process that characterizes much of financial regulation today. Charles K. Whitehead http://scholarship.law.cornell.edu/clsops_papers/55 http://scholarship.law.cornell.edu/clsops_papers/55 Thu, 06 Aug 2009 12:27:17 PDT Most employment laws give inalienable rights to workers. An individual worker cannot trade the right to $7.25 per hour for a greater pension, for example, nor trade a longer-than-five-year pension-vesting schedule for greater pay. Employees can waive some employee rights, but policymakers are hesitant to allow this for fear the individual employee's lack of bargaining power or inability to assess the value of rights will mean an alienable right is no right at all. This suggests a role for unions as a broker of rights. A union presumably has greater bargaining power, greater experience than individual employees, and greater ability to avoid cognitive biases, and thus can be expected to make bargains that more greatly benefit workers.This Article explores the role of union as broker of rights. It discusses current examples, including the Supreme Court's recent 14 Penn Plaza decision that upholds union waiver of workers' right to litigate discrimination claims, forcing the claims into arbitration. The Article argues that unions should not fear the brokering role while acknowledging the current hesitancy of unions to embrace it, and assesses when and when not policymakers should create employment rights that are inalienable to individual workers but can be brokered by a union representing workers. Stewart Schwab http://scholarship.law.cornell.edu/clsops_papers/54 http://scholarship.law.cornell.edu/clsops_papers/54 Fri, 24 Apr 2009 11:05:16 PDT The second wave of the women's movement, which started in the early 1960s, revolutionized women's legal rights in the U.S. and reverberated in the rest of the world. Ms. Fuentes, a founder of NOW (National Organization for Women) and the first woman attorney in the Office of the General Counsel at the EEOC (Equal Employment Opportunity Commission), discusses the beginning of this movement, her role in it, the changes that have occurred since then, and the problems that remain in the US and throughout the world today. Sonia Pressman Fuentes Civil Rights Women http://scholarship.law.cornell.edu/clsops_papers/53 http://scholarship.law.cornell.edu/clsops_papers/53 Mon, 23 Mar 2009 09:07:27 PDT Three facts bear notice in connection with our current financial troubles. The first is that the First World War, before the Second began, was known as "the Great War." The second is that the global Depression that struck between those two wars, which for now we can still label "Great," commenced with the burst of a multiyear real estate price bubble prior to the 1929 stock market crash. The third is that the U.S. accordingly addressed that depression through mutually reinforcing new regimes not only of financial regulation, but also of home mortgage finance - the very reforms that brought us "securitization" and the familiar 30 year, fixed rate mortgage. Our present difficulties, moreover, stem directly from recent departures from that originally bipartisan package of mutually reinforcing mortgage and finance-regulatory innovations. Approaches to today's financial crisis have been strangely unmindful of the history, innovations, and bipartisanship just mentioned. They have also been inattentive to the well established historical linkage between protracted economic contractions on the one hand, and paired stock and real estate crashes on the other. That is surprising not only because these matters are so salient right now. It is surprising also because the reason for the historical link between real estate slumps and broader economic contractions is not hard to find: For the overwhelming majority of Americans, homes are by far the most valuable assets they own. When their values plummet, wealth, credit, consumer confidence, and spending soon follow. The lesson for today is quite clear: No approach to our present financial crisis that does not address the mortgage crisis at its core can succeed in the long run, or even the short run. This Article prescribes means of addressing our current financial crisis by addressing the mortgage crisis at its core. It targets both the short and the long term. In a manner that is sensitive both to the historical roots and to the still operative etiology of the current crisis, it develops a fully integrated, systematic protocol for treating our present financial ills. The Article first structurally characterizes the nature of credit-fueled asset price bubbles and the financial pathologies to which they give rise. It emphasizes that this structure is compatible both with long-term informational efficiency on the part of asset markets, and with individual rationality on the part of market participants. The challenge presented by asset bubbles, the Article argues, is not individual irrationality or informational inefficiency, but a classic coordination problem. Mistaken assumptions to the contrary account in large measure for our failure to have prevented, and for our ineffectiveness thus far in addressing, the present crisis. Coordination problems require coordinative responses. Absent such responses to credit cycles and financial systems conceived as wholes, piecemeal regulatory measures cannot properly discharge their functions. The Article next shows our current difficulties indeed to have stemmed from a classic credit-fueled asset price bubble first in the stock, then in the housing markets over the decade ending in 2006. This bubble was strikingly reminiscent both of that which preceded the 1928-29 American real estate and stock market crashes and ensuing deflation, and of more recent such stories in Asia. The Article then lays out responsive near-term solutions to the present crisis as thus characterized, followed by longer-term measures that will maintain health both in real estate finance and in the financial system more generally. The key to a short term solution lies in employing those institutions we first put into place to deal with our last great real estate bubble and burst, that of 1928. Those institutions are the Federal Housing Administration and its recently renationalized GSE siblings, Fannie Mae and Freddie Mac. The key to longer term maintenance, the Article then argues, is two-fold. Above all, we must restore the Federal Reserve's original role as bubble-preventive credit-regulator - what the Article calls "regulation as modulation." Complementary to this task will be the development of more effective bubble-detection methodologies, which can be developed but, as public goods, are currently underprovided. Likewise complementary to credit modulation will be the extension of familiar disclosure and firewall protections from those older fields of finance where they have been operative since the 1930s, to new fields of finance that have developed more recently in the shadows. Getting finance and the credit-debt cycle right, the Article concludes, will get the business cycle and stable growth right as well. Stop bubbles, and we will stop bursts and deflations alike. Robert C. Hockett Banking and Finance Commercial Law Corporations Economics Law Insurance Law Law and Economics Legislation Politics Public Law and Legal Theory Securities Law Social Welfare