Copyright (c) 2009 Cornell Law Library All rights reserved. http://scholarship.law.cornell.edu Recent documents in Scholarship@Cornell Law en-us Sat, 21 Nov 2009 06:03:08 PST 3600 http://scholarship.law.cornell.edu/facpub/2 http://scholarship.law.cornell.edu/facpub/2 Thu, 19 Nov 2009 12:28:32 PST 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. W. Bradley Wendel http://scholarship.law.cornell.edu/facpub/1 http://scholarship.law.cornell.edu/facpub/1 Thu, 19 Nov 2009 11:50:45 PST 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. Emily Sherwin http://scholarship.law.cornell.edu/lsrp_papers/126 http://scholarship.law.cornell.edu/lsrp_papers/126 Mon, 16 Nov 2009 12:34:10 PST 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. Oskar Liivak http://scholarship.law.cornell.edu/lsrp_papers/125 http://scholarship.law.cornell.edu/lsrp_papers/125 Mon, 16 Nov 2009 12:23:24 PST 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. Valerie P. Hans 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/ijli/vol36/iss3/10 http://scholarship.law.cornell.edu/ijli/vol36/iss3/10 Mon, 28 Sep 2009 08:04:58 PDT Aslihan A. Bulut http://scholarship.law.cornell.edu/ijli/vol36/iss3/9 http://scholarship.law.cornell.edu/ijli/vol36/iss3/9 Mon, 28 Sep 2009 08:04:57 PDT Thomas W. Mills