Cornell Law School Graduate Student Papers Copyright (c) 2013 Cornell Law Library All rights reserved. http://scholarship.law.cornell.edu/lps_papers Recent documents in Cornell Law School Graduate Student Papers en-us Sun, 27 Jan 2013 14:56:20 PST 3600 “In the Judge’s Heart:” Rethinking the Role of Empathy in the Supreme Court Nomination and Confirmation Process http://scholarship.law.cornell.edu/lps_papers/28 http://scholarship.law.cornell.edu/lps_papers/28 Wed, 02 May 2012 07:14:50 PDT This paper addresses President Obama’s standard of “empathy” as a qualification for potential nominees to the Supreme Court. The paper seeks to germinate answers to questions surrounding the meaning and purpose of empathy as a quality for Supreme Court Justices and ways empathy might be effectively promoted moving forward. Working within the narrow but recent line of scholarship on empathy this paper supports the position that empathy is both a desirable and necessary quality for nominees to the Court. However, the paper and research also suggests that empathy should not be the only major defining quality considered by the president in nominations to the Court.

The paper first establishes that the Obama administration’s conception of empathy is clear, reasonable, and workable, but reviews the political considerations that seem to have stymied overtly embracing empathy as a consideration. The paper then shows that the role empathy might play for a particular justice once on the Court is uncertain, suggesting that perhaps empathy should not be the leading consideration advanced by the president in choosing a nominee. Overall, this paper reveals the arguments for why empathy is a meaningful and admirable quality and should remain a consideration. The paper also shows that for both policy and pragmatic political reasons empathy should probably not occupy the central public role initially insinuated by President Obama in the nomination of Sonia Sotomayor. In order to structure the argument the paper culls the nomination and confirmation records and testimonies of four current Justices purportedly nominated and confirmed to the Court because of the unique perspective they would bring as Justices: Clarence Thomas, appointed by George H. W. Bush; Ruth Bader Ginsburg, appointed by Bill Clinton; and Sonia Sotomayor and Elena Kagan, both nominees of Barack Obama and by default arguably symbolic of his empathy standard.

This paper was initially written for the course “Congress, the Constitution, and the Supreme Court” at University of Pennsylvania Law School while the author was a visiting student at Penn. The course was taught by former U.S. Senator Arlen Specter and former General Counsel to Senator Specter, Matthew Wiener. The views in the paper are the author’s own.

]]> Louis H. Guard In Search of Parity: Child Custody/Visitation and Child Support for Lesbian Couples Under “Companion” Cases Debra H. and In Re H.M. http://scholarship.law.cornell.edu/lps_papers/27 http://scholarship.law.cornell.edu/lps_papers/27 Tue, 31 May 2011 12:49:33 PDT The United States is engaged in a national debate over whether to grant same-sex couples the rights and privileges of marriage. Supporters of marriage equality flood the media with images of jubilant same-sex couples simply wanting the chance to say their “I dos” and have the state formally recognize their shared love and commitment. The unfortunate reality is, however, that many homosexual relationships, like heterosexual relationships, dissolve. Marriage rights play as important a role at a relationship’s dissolution as they do at a relationship’s inception. This paper focuses on one such issue often left out of the public discourse over marriage equality: determining parentage for the purposes of child custody/visitation as well as child support in the context of a lesbian relationship that has broken down.

Looking at two recent cases from the New York Court of Appeals, Debra H. and H.M. together, one can clearly see an alarming development: eliminating the applicability of equitable principles to provide legal parental status for a non-biological, non-adoptive parent to contest custody/visitation, while at the same time relying on such principles to force child support payments on the same individuals. Child visitation jurisprudence and child support jurisprudence should stand in parity, making it so an individual would simply be adjudicated a parent, not a parent solely for contesting child custody/visitation or a parent solely for child support. Otherwise, not only is the best interest of the child lost, but so too is the principle of fundamental fairness on the part of the defendant partner. In addition to drawing attention to this alarming jurisprudential development, I also set for alternate, substantive solutions.

]]> Jason C. Beekman Slow But Sure, Africa's Path To Democracy: [Bridled] Globalization, Education, and the Middle Class http://scholarship.law.cornell.edu/lps_papers/26 http://scholarship.law.cornell.edu/lps_papers/26 Tue, 25 Jan 2011 13:15:01 PST Africa! The word has been associated with poverty, greed, brutality and gangsterism. Why is Africa, particularly sub-Saharan Africa, still wallowing in poverty while the great mass of nations are moving forward, some taking strides while others making gargantuan leaps? Is there any hope that African countries will in large part become democratic? How do they get there? In this paper, I give a short historical background of how Africa has evolved over the years into modern day Africa in order to understand how Africa has come to be what, and where it is today. I make the argument that the only way by which Africa can attain democracy is by first and foremost having in place Rule of Law, however imperfect it may be. I further argue that consequent upon that, it is only the synergy of globalization in its controlled form, an educated populace, and a strong middle class that can be the catalyst, the fuel that can cause the essential ingredients of democracy to manifest itself in the society and eventually democracy take root. Lastly, I make recommendations as to how these can be achieved.

]]> Thomas Kojo Stephens Developing the Final Frontier: Defining Private Property Rights on Celestial Bodies for the Benefit of All Mankind http://scholarship.law.cornell.edu/lps_papers/25 http://scholarship.law.cornell.edu/lps_papers/25 Mon, 11 Oct 2010 12:31:32 PDT Sustainable colonization and exploitation of the lunar surface, Mars, or near by asteroids is still decades away. However, NASA, the Obama Administration, and other agencies around the world have shown a growing interest in establishing a human presence on the moon, mars, and beyond.

Unfortunately, the legal regime concerning the use of the Moon and other celestial bodies, which is necessary to further development in outer space, is largely unsettled. One important unsettled area is the ownership status of celestial bodies and whether private property rights on those bodies are permissible and desirable.

This Paper takes the view that private property rights on celestial bodies is permissible and desirable if celestial bodies are considered terra nullius-incentivizing development-and private property rights be defined in terms of a social obligation norm. This coupling of concepts will satisfy the desires of both proponents of celestial development and proponents of outer space as the common heritage of all mankind.

]]> Taylor R. Dalton Counterfeit Conspiracy: The Misapplication of Conspiracy as a Substantive Crime in International Law http://scholarship.law.cornell.edu/lps_papers/24 http://scholarship.law.cornell.edu/lps_papers/24 Thu, 19 Aug 2010 12:43:47 PDT In the International Criminal Tribunal for Rwanda (ICTR) case Prosecutor v. Musema, the trial chamber held that an individual can be found guilty solely for the crime of conspiracy to commit genocide even if no genocide takes place. The trial chamber found its jurisdiction to punish the crime of conspiracy under its establishing statute, but looks almost exclusively at national legal traditions to determine its content. It cites no other international law supporting its decision to incorporate domestic concepts into the crime. In contrast, the Rome Statute of the International Criminal Court, which relatively recently entered into force, seems to have intentionally dropped the crime of conspiracy to commit genocide from its list of crimes under its jurisdiction. This legal and conceptual discord raises the question of whether conspiracy is actually a legitimate substantive international crime, and whether tribunals should continue to apply it.

]]> Taylor R. Dalton Max Weber on Property: An Effort in Interpretive Understanding http://scholarship.law.cornell.edu/lps_papers/23 http://scholarship.law.cornell.edu/lps_papers/23 Tue, 06 Apr 2010 07:40:00 PDT This article reviews Max Weber’s scholarly work pertaining to property, beginning with his first dissertation and ending with the compilation that is Economy and Society. Three phases of Weber’s work are described in detail: a legal phase, an economic-historical phase, and a sociological phase. It is argued that the sociological phase represents the culmination of the two prior phases, drawing on material and arguments from those earlier phases. In the sociological phase of his writing, it is argued that Weber developed a theory of property that is capable of accounting for that phenomenon in all of its dimensions: structural, material, and symbolic. The goal of the article is to show Weber’s relevance to contemporary theories of property: legal, sociological, and economic.

]]> Laura R. Ford Judicial Recusal & Expanding Notions of Due Process http://scholarship.law.cornell.edu/lps_papers/22 http://scholarship.law.cornell.edu/lps_papers/22 Thu, 11 Mar 2010 10:54:20 PST The merits of judicial elections have been litigated in journals around the country. In light of the recent Supreme Court decisions in White and Caperton, this debate will only intensify. Rather than revisit the arguments for and against electing judges, this Article argues that applying the Mathews v. Eldridge test in cases where a litigant’s due process is threatened by an elected judge—a possibility that the Court initially dismissed in White against Justice Ginsburg’s protests, and then took head on in Caperton—will balance First Amendment rights that judicial elections breed against the rights of the litigants that the Constitution protects. This test would also be mindful of the larger concern voiced by the Caperton dissent: that Caperton motions will undermine the integrity of the judiciary. In sum, the flexibility and elegance of the test in this context is also made timely in light of the uncertainty raised by the Court’s expansive rulings in the areas of judicial elections, due process protection, and First Amendment rights. Lower courts should be relieved that they would not need to break new ground to apply Mathews in this context. And Chief Justice’s prediction that the Court will have to revisit Caperton to measure the “extremeness” of the facts in future cases may not come true after all.

]]> Andrey Spektor et al. Down in the Valley of Elah http://scholarship.law.cornell.edu/lps_papers/21 http://scholarship.law.cornell.edu/lps_papers/21 Tue, 21 Jul 2009 12:27:48 PDT What is the potential for modern liberal constitutions in light of the current financial crunch? In strict compliance with the Hobbes-ian naturalist assumption of human equality, this paper discusses the establishment of a single and universal, public educational system as a sine qua non condition for democracy in a society founded upon the premise that “Virtue can be taught”.

]]> Platon Gatsinos The Definition and Jurisdiction of the Crime of Aggression and the International Criminal Court http://scholarship.law.cornell.edu/lps_papers/19 http://scholarship.law.cornell.edu/lps_papers/19 Thu, 21 Dec 2006 08:10:28 PST The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court that was held in Rome to establish the International Criminal Court in 1998 finally adopted the Rome Statute with the participation of 160 countries. The Rome Statute of the ICC entered into force on 1 July 2002 and has been ratified by 100 States. What was considered not so long ago merely a dream of a few people has become a reality after the strenuous efforts of the UN over 50 years. However, one central issue still remains unresolved in the Rome Status. It is the crime of aggression. Countries that participated in the Rome Conference agreed to that compromise just in order to secure the conclusion of the Statute after they had reached a deadlock over the crime of aggression. Adoption of the Rome statute without containing an applicable provision on the crime of aggression, once expressed as the “Supreme International Crime,” was a main defect in the Statute. Without the punishment of the crime of aggression, the ICC would not really have the ultimate, long-awaited international criminal jurisdiction.

The definition and jurisdiction of the crime of aggression has always been an extremely difficult issue to settle. The history of the search for an appropriate and effective definition and jurisdiction of the crime of aggression will be reviewed in this paper; it is not a purely legal issue, but it is intertwined with political elements. The research objective of this thesis is to clarify the terms of the ongoing debate over the crime of aggression, and to facilitate a better understanding about the crime of aggression, in an ad hoc working group open to all member states of the U.N. It is important to confirm the current controversial issues of the crime of aggression and present a desirable definition and jurisdiction of it. A credible, carefully discussed, precise definition and jurisdictions of the crime of aggression, one that reflects customary international law and respects the U.N. Charter’s integrity and the Security Council’s responsibility for the maintenance of international peace and security, would enhance the prospects to define the crime of aggression in the Rome Statute and the possibility of other U.N. member states’ ratifying it, including the U.S. Also, it would strengthen the prospects for the eventual successful prosecution of crimes of aggression.

First, this paper will review and analyze the general characteristics of the crime of aggression and the historical background of the crime of aggression (from the Nuremberg Military Tribunal to the Rome Statute) in part II. Part III covers the definition of the crime of aggression in light of proposals in the Preparatory Commission (from 1st to 10th) and discussions in the ad hoc working group (from 1st to 4th) and elements of this crime. Part IV discusses the relationship between the ICC and the Security Council from the various points of view concerning the competence of ICC and Security Council, under the U.N. Charter. Finally, through these procedures, this paper will confirm and inquire the current moot issues and suggests desirable a definition and conditions of the crime of aggression in part V.

Based on the research outlined above, this paper concludes that concerning the definition of the crime of aggression, first the definition of this crime should follow the “generic approach.” Second, the crime of aggression and the act of aggression should be separately stipulated in the definition. That is, the crime of aggression should contain the provisions included in the Nuremberg Charter and also reflect the general recognition on it developed up the point of current circumstances. The act of aggression should follow the provisions of precedents such as resolution 3314(XXIX) of 1974 and the ILC Draft Code of Crimes against the Peace and Security of Mankind 1996. Third, the definition of the crime of aggression should comply with the principle of legality. Thus essential material and mental elements of crime should be included in it.

Concerning the jurisdiction of the Crime of aggression, this paper concludes that first the Security Council’s primary responsibility for determining the existence of the state aggression should be confirmed. Second, the Security Council’s exclusive right to make such determinations should be denied and there should be a provision which make legally possible for the General Assembly of the UN or the ICJ to make such determinations in case of absence of the determination from the Security Council. Third, to decide whether to give such secondary right to the General Assembly of the UN or the ICJ should be settled by a political compromise through a structured and clear debate and the room for such debate should be opened not only to the state party to the Rome Statute, but also to all UN members.

]]> Buhm-Suk Baek International Law Jurisdiction Defense of Superior Orders in International Criminal Law as Portrayed in Three Trials: Eichmann, Calley and England http://scholarship.law.cornell.edu/lps_papers/18 http://scholarship.law.cornell.edu/lps_papers/18 Mon, 18 Sep 2006 13:09:28 PDT The paper is dedicated to the defense of superior orders in international law. The author discusses attempts to use this defense in three trials, - Adolf Eichmann's, William Calley's and Lynndie England's. The paper juxtaposes the trials and provides conclusions on the success of this defense in each case.

]]> Natalia M. Restivo Military Law A Reflection on the Chinese Green Card System http://scholarship.law.cornell.edu/lps_papers/17 http://scholarship.law.cornell.edu/lps_papers/17 Wed, 30 Aug 2006 05:22:20 PDT The issuance of Regulations on Examination and Approval of Permanent Residence of Aliens in China marks the establishment of the green card system in China. It aims to attract world talents as well as foreign investment. It is a very important step concerning China’s open-up policy, but we still have a long way to improve the newly-established system.

]]> Jia Xu Immigration Law A Battle Between Geography Indication and Trademark http://scholarship.law.cornell.edu/lps_papers/16 http://scholarship.law.cornell.edu/lps_papers/16 Wed, 30 Aug 2006 05:14:00 PDT In 2005, Administration for Quality, Supervision, Inspection and Quarantine (AQSIQ) issued “Administrative Regulation on Indications of Original Source and Regulation on Protection of Products from Original Sources,” but “Implementing Rules of the Trademark Law of the People's Republic of China” has included the protection of Geography Indication into the trademark law. The two separate tracks of protection of GI have caused much confusion to the intellectual property right holders regarding their property rights. This thesis introduces and compares the concept of trademark and geography indications, analyzes the current protection mode both in China and abroad and discusses how to eliminate the conflict.

]]> Jia Xu Intellectual Property Law Protection of Endangered Species: Sturgeon: Struggle for Survival Has Become Critical http://scholarship.law.cornell.edu/lps_papers/15 http://scholarship.law.cornell.edu/lps_papers/15 Wed, 05 Jul 2006 06:52:13 PDT This research is dedicated to the current situation and problems of sturgeon species in Russia, mainly in the Caspian Sea region. In particular, the paper elaborates on the endangered beluga sturgeon. The work describes characteristic features of sturgeon, points out the current problems and proposes some suggestions on preservation efforts in order to improve the critical situation. The research carried out by the author includes a brief consumer survey which exhibits the level of awareness and indicates willingness of the society to maintain the stability and provide sustainable development of the sturgeon species. The author favors and encourages intrinsic value approach to biodiversity and environment, therefore building her analysis around this notion.

]]> Natalia M. Restivo Bollywood is coming! Copyright and Film Industry Issues Regarding International Film Co-Productions Involving India http://scholarship.law.cornell.edu/lps_papers/14 http://scholarship.law.cornell.edu/lps_papers/14 Thu, 18 May 2006 06:00:15 PDT The Indian film industry produces more movies than any other and is characterized as being on the threshold of emerging as a big market internationally with an expected growth rate of close to 20% per year. Its regulatory and legal mechanisms are developing rapidly to keep pace. This article is dedicated to the Indian film industry and its international potential. It analyzes the copyright aspects of film co-productions involving India and compares the characteristics of the national film industries of Germany, the U.S. and especially India (Bollywood) from a legal perspective. It points to key copyright issues in the field that will become relevant for potential co-producers. It also looks at the basic relevant copyright provisions regarding motion pictures in India, the U.S. and Germany. Also, it points to contractual provisions that should be included in international co-production contracts. Finally, it concludes with the pros and cons of international co-productions with Indian producers from the perspective of U.S. and German production companies.

]]> Timm Neu Intellectual Property Law International Law Saddam Hussein's Trial in Iraq: Fairness, Legitimacy & Alternatives, a Legal Analysis http://scholarship.law.cornell.edu/lps_papers/13 http://scholarship.law.cornell.edu/lps_papers/13 Tue, 02 May 2006 07:02:47 PDT The paper focuses on Saddam Hussein’s trial in front of the Iraqi High Criminal Court in Baghdad. After providing an overview of the facts surrounding the court’s installation, the applicable international law is identified and the fairness and legitimacy of the current proceedings are analyzed. The paper finishes by considering whether the trial should be relocated and addresses alternative venues that could have been chosen to prosecute Iraq’s ex-dictator.

]]> Christian Eckart Courts Criminal Law and Procedure Human Rights Law International Law Jurisdiction Reform Suggestions on Sample Labor Contracts in China http://scholarship.law.cornell.edu/lps_papers/12 http://scholarship.law.cornell.edu/lps_papers/12 Fri, 14 Apr 2006 06:05:10 PDT The labor relationship is the predominant and fundamental relationship in human society. The regulation of this relationship is the most important to human being’s development.

The regulation of the labor relationship is closely linked to personal basic rights and individual destiny.

To regulate the labor relationship, that is, to establish labor rights and duties, depends on labor laws and labor contracts. But in the long history of China, there has been no labor law and labor contract. Since the open door policy was implemented, labor law and the system of labor contract began slowly. However the situation is still far from satisfactory.

Now, in China, there is a desperate need for appropriate regulation of labor rights and duties.

Thus given the unsound nature of the labor laws and the interrelated systems, it is necessary for labor administration departments to draw up and implement some relatively detailed, scientific, and sound sample labor contracts.

This article presents a draft of a sample labor contract. It is composed by the following parts: 1. The preface. 2. The content of the work. 3. Reward and welfare. 4. Employee’s personal safety. 5. The honest duty of the employee. 6. The termination of the Contract. 7. Labor discipline and labor dispute. 8. The remainder. 9. The ending. 10. Appendixes.

This sample labor contract has wide adaptability, and is not a short-term solution. It should be noted that a good labor contract on paper alone is not the solution. The on-site investigation and statistics implemented in this article show that there are serious problems in the process of implementing labor contracts in China. Therefore some reform suggestions concerning how to properly implement labor contracts are also proposed in this article.

]]> Lin Li Labor Law Disappearing Acts – Toward a Global Civil Liability Regime for Pollution Damage Resulting from Offshore Oil and Gas Exploration http://scholarship.law.cornell.edu/lps_papers/11 http://scholarship.law.cornell.edu/lps_papers/11 Mon, 20 Feb 2006 06:13:02 PST Civil liability for pollution damage is recognized and firmly established under international law. However, there is no global international treaty that addresses this issue with respect to offshore oil and gas exploration. This may be due partly to the infrequency of the occurrence of offshore oil well blowouts. However, offshore operations represent a constant threat to the marine environment since the risk of a blowout leading to an ecological disaster is ever present. The trend has been the adoption of regional agreements to tackle the issue. However, most of the regional arrangements deal with the issue in a sidelong manner and they lack worldwide application. The case is made that a global treaty on the subject is long overdue.

]]> Kissi Agyebeng Environmental Law The Prophecies of the Prophetic Jurist – A Review of Selected Works of Oliver Wendell Holmes, Jr. http://scholarship.law.cornell.edu/lps_papers/10 http://scholarship.law.cornell.edu/lps_papers/10 Wed, 11 Jan 2006 05:12:57 PST This is a review of the methodology and style of legal research of Oliver Wendell Holmes, Jr., focusing on the ideological and philosophical leanings that informed his scholarship. The review spans selected works of his undergraduate days through his mid-career writings and his representative opinions on the Supreme Judicial Court of the State of Massachusetts and the Supreme Court of the United States.

]]> Kissi Agyebeng Judges Jurisprudence Legal Analysis and Writing Legal Research and Bibliography Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea http://scholarship.law.cornell.edu/lps_papers/9 http://scholarship.law.cornell.edu/lps_papers/9 Mon, 31 Oct 2005 08:10:48 PST The evolution of the law of the sea has been shaped largely by two notions, namely, freedom of navigation on the one hand, and restricted access on the other hand. The interaction between these two opposing notions has led to the acceptance of two compromise concepts, namely, the territorial sea and the right of innocent passage. These concepts have now been codified in the 1982 United Nations Convention on the Law of the Sea. This paper examines the right of innocent passage in the territorial sea under the Law of the Sea Convention regime as matched against contemporary state practice. It would appear that many coastal states prefer the restriction of this right – seemingly infringing what the Convention stands for. It is submitted that states should restructure their policies and regulations to conform to their assumed obligations under the Convention.

]]> Kissi Agyebeng Law of the Sea International Antisuit Injunctions: Enjoining Foreign Litigations and Arbitrations - Beholding the System from Outside http://scholarship.law.cornell.edu/lps_papers/8 http://scholarship.law.cornell.edu/lps_papers/8 Mon, 22 Aug 2005 06:55:08 PDT Antisuit injunctions are issued by a court to prevent a party from bringing suit in another forum. They are a powerful tool available to American courts to implement their decision on jurisdiction. It goes without saying that granting such an injunction de facto affects the capability of the other forum to hear the dispute, which conflicts with the principle of comity. American courts therefore only enjoin a party from proceeding in another forum if certain criteria are satisfied. This paper discusses these criteria in the context of international litigations and arbitrations. It analyzes the case law on this issue and proposes an alternative approach, which approach tries to bring antisuit injunctions into line with other forms of injunctions and suggests, based on the New York Convention, that they should only be granted with reticence in the context of international commercial arbitrations.

]]> Marco Stacher Commercial Law International Law Jurisdiction