Law Commons^™

Incentive Awards To Class Action Plaintiffs: An Empirical Study, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Incentive awards to representative plaintiffs in class actions have been the focus of recent law reform efforts and have generated inconsistent case law. But little is known about such awards. This study of 374 opinions from 1993 to 2002 finds that awards were granted in about 28 percent of settled class actions. The rate of awards varied by case category as follows: consumer credit actions 59 percent, employment discrimination cases 46 percent, antitrust cases 35 percent, securities cases 24 percent (before the Private Securities Litigation Reform Act of 1995 limited awards), and corporate and mass tort actions less than 10 …

Jurisdictional Fact, Kevin M. Clermont

Cornell Law Faculty Publications

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 …

Judges, Juries, And Punitive Damages: Empirical Analyses Using The Civil Justice Survey Of State Courts 1992, 1996, And 2001 Data, Theodore Eisenberg, Paula L. Hannaford, Michael Heise, Neil Lafountain, Brian Ostrom, Martin T. Wells, G. Thomas Munsterman

Cornell Law Faculty Publications

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.

Max Weber, Talcott Parsons And The Sociology Of Legal Reform: A Reassessment With Implications For Law And Development, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Forty Years Of Codification Of Estates And Trusts Law: Lessons For The Next Generation, Gregory S. Alexander, Mary L. Fellows

Cornell Law Faculty Publications

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 …

Judges As Rulemakers, Emily Sherwin

Cornell Law Faculty Publications

In Do Cases Make Bad Law?, Frederick Schauer raises some serious questions about the process of judicial lawmaking. Schauer takes issue with the widely held assumption that judge-made law benefits from the court's focus on a particular real-world dispute. Writing with characteristic eloquence, Schauer argues that the need to resolve a concrete dispute does not enhance the ability of judges to craft sound rules, but instead generates cognitive biases that distort judicial development of legal rules.

Schauer's observations about the risks of rulemaking in an adjudicatory setting are very persuasive. Yet his overall assessment of the common law process …

Wishing Petitioners To Death: Factual Misrepresentations In Fourth Circuit Capital Cases, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.

Bottom-Up Versus Top-Down Lawmaking, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Democratic legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (from the bottom up); or by declaring general principles through a centralized authority that are to be applied in individual cases (from the top down). These two processes are, respectively, adjudication and legislation. Each process highlights and hides different aspects of a legal problem. The single-case perspective of adjudication can seem narrow, and hence 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 …

Review Essay: The Limits Of Their World, Robert C. Hockett

Cornell Law Faculty Publications

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.

Exciting Education Summit News, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

Looking Deathworthy: Perceived Stereotypicality Of Black Defendants Predicts Capital-Sentencing Outcomes, Jennifer L. Eberhardt, P G. Davies, Valerie J. Purdie-Vaughns, Sheri Lynn Johnson

Cornell Law Faculty Publications

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.

The Costs Of Wrongful-Discharge Laws, Stewart J. Schwab, David H. Autor, James J. Donohue Iii

Cornell Law Faculty Publications

We estimate the effects on employment and wages of wrongful discharge protections adopted by U.S. state courts during the last three decades. We find robust evidence that one wrongful-discharge doctrine, the implied-contract exception, reduced state employment rates by 0.8% to 1.7%. The initial impact is largest for female and less-educated workers (those who change jobs frequently), while the longer-term effect is greater for older and more-educated workers (those most likely to litigate). By contrast, we find no robust employment or wage effects of two other widely recognized wrongful-discharge laws: the public-policy and good-faith exceptions.

Visit To Puerto Rico, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

Rehabilitating Rehab Through State Building Codes, Sara C. Bronin

Cornell Law Faculty Publications

Building codes are not neutral documents. Traditional codes have the effect of deterring the rehabilitation of older structures. But rehabilitation - which can have many positive effects, especially on cities - should be encouraged, not deterred. One promising method of encouraging rehabilitation has been the adoption of rehabilitation codes: building codes that establish flexible but clear requirements for renovators. After analyzing traditional building codes and three different rehabilitation codes, this Note concludes that more states should adopt rehabilitation codes on a mandatory basis.

Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver

Cornell Law Faculty Publications

First National Maintenance Corp. V. National Labor Relations Board: Eliminating Bargaining For Low-Wage Service Workers, Alan Hyde

Cornell Law Faculty Publications

The Supreme Court decision finds an employer privileged not to bargain with the union over a decision to eliminate a portion of operations (by not renewing a contract with a particular customer), undertaken entirely for economic reasons turning not at all on labor costs, and without animus to the union. No such case has ever been presented to the National Labor Relations Board, and interviews with the principals reveals that these were not the facts of First National Maintenance either. The case was a carefully-constructed hypothetical that omitted key facts, such as the employer's history of illegal conduct to avoid …

Counseling Organizational Clients "Within The Bounds Of The Law", Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Exorbitant Jurisdiction, Kevin M. Clermont, John R.B. Palmer

Cornell Law Faculty Publications

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 …

The Court's Purpose: Secular Or Anti-Strife?, Bernadette Meyler

Cornell Law Faculty Publications

No abstract provided.

Institutional And Individual Justification In Legal Ethics: The Problem Of Client Selection, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

What's Your Sign? -- International Norms, Signals, And Compliance, Charles K. Whitehead

Cornell Law Faculty Publications

This Article proposes a new approach to analyzing state compliance with international obligations, positing that increased interaction among the world's regulators has reinforced norms within cross-border regulatory networks, influencing the actions of senior regulators who are network members and, in turn, affecting levels of state compliance.

Network norms help define what state actions constitute signals and the meanings of those signals. Certain actions, such as implementing a substantive network standard, may be considered a concrete expression of an abstract network norm. States that fail to implement that standard risk failing to send the right signal, potentially incurring significant network sanctions. …

Institutional And Individual Justification In Legal Ethics: The Problem Of Client Selection, W. Bradley Wendel

Cornell Law Faculty Publications

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 …

Specific Investment: Explaining Anomalies In Corporate Law, Margaret M. Blair, Lynn A. Stout

Cornell Law Faculty Publications

This Article has two goals: to praise Professor Robert Clark as a remarkable corporate scholar, and to explore how his work has helped to advance our understanding of corporations and corporate law. Clark wrote his classic treatise at a time when corporate scholarship was dominated by a principal-agent paradigm that viewed shareholders as the principals or sole residual claimants in public corporations and treated directors as shareholders' agents. This view naturally led contemporary scholars to believe that the chief economic problem of interest in corporate law was the "agency cost" problem of getting corporate directors to do what shareholders wanted …

What's Wrong With Being Creative And Aggressive?, W. Bradley Wendel

Cornell Law Faculty Publications

When I tell people that I am a law professor specializing in legal ethics, they usually have one of two reactions: “Legal ethics—that’s an oxymoron!” or “I bet you always have a lot to do.” The second reaction is the more interesting of the two, because it rightly implies that legal ethics is a fascinating field, in part because lawyers are always thinking of new ways to get into trouble. Many run-of-the-mill lawyer disciplinary cases involve simple wrongdoing, such as stealing from client funds, which does not present conceptually interesting issues. Contemporary high-profile legal ethics scandals, by contrast, are made …

Treating Religion As Speech: Justice Stevens's Religion Clause Jurisprudence, Eduardo M. Peñalver

Cornell Law Faculty Publications

Justice Stevens has sometimes been caricatured as the U.S. Supreme Court Justice who hates religion. Whether considering questions under the Establishment Clause or the Free Exercise Clause, questions about the funding or regulation of religious groups, or the permissibility of religious speech in public places, in case after case he has voted against religion. Like most caricatures, this view of Justice Stevens is based on a kernel of truth. He does appear to be more likely to vote against religious groups than any other Justice. But an exploration of the cases in which Justice Stevens has voted in favor of …

Significant Association Between Punitive And Compensatory Damages In Blockbuster Cases: A Methodological Primer, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

This article assesses the relation between punitive and compensatory damages in a data set, gathered by Hersch and Viscusi (H-V), consisting of all known punitive damages awards in excess of $100 million from 1985 through 2003. It shows that a strong, statistically significant relation exists between punitive and compensatory awards, a relation that replicates similar findings in nearly all other analyses of punitive and compensatory damages. H-V's claim that no significant relation exists between punitive and compensatory awards in these data appears to be an artifact of questionable regression methodology.

Anthropology, Human Rights, And Legal Knowledge: Culture In The Iron Cage, Annelise Riles

Cornell Law Faculty Publications

In this article, I draw on ethnography in the particular zone of engagement between anthropologists, on the one hand, and human rights lawyers who are skeptical of the human rights regime, on the other hand. I argue that many of the problems anthropologists encounter with the appropriation and marginalization of anthropology's analytical tools can be understood in terms of the legal character of human rights. In particular, discursive engagement between anthropology and human rights is animated by the pervasive instrumentalism of legal knowledge. I contend that both anthropologists who seek to describe the culture of human rights and lawyers who …

Partnering With Decision Makers In Your Institution, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

The Equal Protection Of Free Exercise: Two Approaches And Their History, Bernadette Meyler

Cornell Law Faculty Publications

Contrary to critics of the Supreme Court's current equal protection approach to religious liberty, this Article contends that, from the very first federal free exercise cases, the Equal Protection and Free Exercise Clauses have been mutually intertwined. The seeds of an equal protection analysis of free exercise were, indeed, planted even before the Fourteenth Amendment within the constitutional jurisprudence of the several states. Furthermore, this Article argues, equal protection approaches should not be uniformly disparaged. Rather, the drawbacks that commentators have observed result largely from the Supreme Court's application of an inadequate version of equal protection. By ignoring the lessons …

Online Boilerplate: Would Mandatory Website Disclosure Of E-Standard Terms Backfire?, Robert A. Hillman

Cornell Law Faculty Publications

No abstract provided.