Law Commons^™

Vol. 2, Issue 1 Table Of Contents

SAIPAR Case Review

No abstract provided.

Kilolo Ng’Ambi V Opa Kapijimpanga Appeal No. 210/2015 (Judgment Of 9th October 2018), O'Brien Kaaba

SAIPAR Case Review

This was an appeal against the High Court decision relating to succession disputes for the Kapijimpanga chieftaincy in North Western Zambia. The incumbent chief died on the throne in 2008. Duly following the traditional succession process, the traditional electoral college (composed of certain members of the royal family) gathered in September 2010 to choose the next chief. Six contenders emerged and were all considered eligible. The electoral college could not agree on which one of them should be chief and the process ended in a deadlock. In consequence, the electoral college executed a written agreement among themselves to enlist a …

Daniel Pule And Others V Attorney General And Others 2017/Ccz/004 Selected Judgment No. 60 Of 2018, Elias C. Chipimo

SAIPAR Case Review

In a case brought to determine the eligibility of President Edgar Lungu to stand as a presidential candidate in 2021, having served less than three years in his first term, the Constitutional Court determined that: ‘…the presidential tenure of office that ran from January 25, 2015 to September 13, 2016 and straddled two constitutional regimes, cannot be considered as a full term.’

In doing so, the Constitutional Court effectively backdated the application of the ‘New Clauses’ to a time when there was already a law governing: (a) the eligibility of a person to stand again as a presidential candidate who …

Raila Odinga And Others V Independent Electoral And Boundaries Commission And Others [2013] Klr-Sck Petition No.5 Of 2013 & No. 1 Of 2017, Teddy J.O. Musiga

SAIPAR Case Review

Since the establishment of the Supreme Court of Kenya in 2011, it has so far determined two disputes arising from presidential election petitions. From the outset, it is important to clarify that this commentary does not purport to review the decisions of the 2013 and 2017 presidential election petitions. It only seeks to review and critique one salient aspect that emerges from the Supreme Court of Kenya’s approach in the treatment of rejected votes in those presidential election disputes.

The case note criticises the Supreme Court of Kenya’s approach which seems to favour the exclusion of rejected votes in the …

Vol. 104, No. 4 Front Matter

Cornell Law Review

No abstract provided.

The Thirteenth Amendment: Modern Slavery, Capitalism, And Mass Incarceration, Michele Goodwin

Cornell Law Review

Slavery's preservation in the United State can-in part-be explained by its fluid transformations, which continuously exacted economic gains, preserved southern social order, and inured benefits to private parties as well as the state. These transformations did not outpace law. Rather, the rule of law in the south and lawlessness among local law enforcement frequently accommodated these transformations and innovations. Historically, efforts to stamp out the myriad forms of slavery-convict leasing, peonage, contract transfers, so-called "apprenticeships," and chain gangs-frequently fell short because of local collusion and complicity, weak federal interventions and protections, and violence. The specter of lynching, which included the …

Hertz So Good: Amazon, General Jurisdiction's Principal Place Of Business, And Contacts Plus As The Future Of The Exceptional Case, D. (Douglas) E. Wagner

Cornell Law Review

No abstract provided.

Local Evidence In Constitutional Interpretation, Brandon L. Garrett

Cornell Law Review

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look to local law. Although it has gone largely unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. Local evidence may inform the decision whether to recognize a constitutional right, it may inform the interpretation of the right, and it may inform the remedies for a constitutional violation. For example, the Supreme Court has examined local enforcement patterns to …

Toward A Horizontal Fiduciary Duty In Corporate Law, Asaf Eckstein, Gideon Parchomovsky

Cornell Law Review

Fiduciary duty is arguably the single most important aspect of our corporate law system. It consists of two distinct subduties-a duty of care and a duty of loyalty-and it applies to all directors and corporate officers. Yet, under extant law, the duty only applies vertically, in the relationship between directors and corporate officers and the firm. At present, there exists no horizontal fiduciary duty: directors and corporate officers owe no fiduciary duty to each other. Consequently, if one of them falls her peers, they cannot seek direct legal recourse against her even when they stand to suffer significant reputational and …

Vol. 2, Issue 1 Masthead

SAIPAR Case Review

No abstract provided.

Editor's Note, Tinenenji Banda

SAIPAR Case Review

No abstract provided.

Nelson Chamisa V Emmerson Dambudzo Mnangagwa And Others Ccz 42/18 (August 2018), O'Brien Kaaba

SAIPAR Case Review

Zimbabwe held its first post-Mugabe general elections on 30th July 2018. On 3rd August 2018, the Zimbabwe Electoral Commission (ZEC) declared Emmerson Dambudzo Mnangagwa as the candidate who received the requisite ‘more than half the number of votes cast’ and declared duly elected President of Zimbabwe. Aggrieved by this development, Nelson Chamisa, the main opposition contender, challenged the validity of the election of Mnangagwa in the Constitutional Court. After hearing the case, the Constitutional Court unanimously: 1) Dismissed the application with costs; and 2) Declared Emmerson Dambudzo Mnangagwa as duly elected President of Zimbabwe.

Property, Dignity, And Human Flourishing, Gregory S. Alexander

Cornell Law Review

Human flourishing and human dignity are not empty phrases. They have real content, and they matter in real lives. The facts are that we want to live flourishing lives and we want to live lives of dignity. We cannot live such lives, however, unless certain conditions are fulfilled. Among these conditions, flourishing is personal autonomy, understood in the sense of self-authorship. Autonomy in that sense itself requires certain conditions. Property is among the conditions intimately connected with self-authorship. A person who lacks basic forms of property such as food and adequate shelter is denied self-authorship, without which she cannot experience …

Rethinking "Just" Compensation: Dignity Restoration As A Basis For Supplementing Existing Takings Remedies With Government-Supported Community Building Initiatives, Alyssa M. Hasbrouck

Cornell Law Review

Longstanding calls for the Supreme Court to revisit the Takings Clause's just compensation requirement are especially relevant in light of urban renewal's destructive history. However, the just compensation requirement should be viewed as a floor, not as a ceiling. Even in the absence of formal action by courts, legislatures and local governments can act to fulfill the government's constitutional obligation of "full and perfect" compensation. By taking preemptive action to support community-based initiatives, financially as well as politically, the same legislatures that seized and destroyed urban neighborhoods can begin to set things right. Court-ordered investments in the longterm well-being of …

The Fair Labor Standards Act At 80: Everything Old Is New Again, Kati L. Griffith

Cornell Law Review

On the eightieth anniversary of the federal wage and hour statute, the Fair Labor Standards Act of 1938 (FLSA), critics warn that it cannot keep pace with shifting business trends. More and more individuals engage in "contract work," some of which takes place in the much publicized "gig economy." These work arrangements raise questions about whether these workers are "employees," covered by U.S. labor and employment law, or "independent contractors." Subcontracting arrangements, or what some call domestic outsourcing, are also expanding. Indeed, more and more workers in the U.S. economy engage with multiple businesses, raising questions of which of these …

Suicide And Euthanasia: The International Perspective On The Right To Die, Zachary A. Feldman

Cornell Law Review

Several countries across the globe have weighed their interests in preserving life, in preventing suicide, and in allowing terminally ill patients to end their lives at their own discretion with, or without, the help of a physician. This Note will highlight the inconsistencies in jurisdictions that treat suicidal ideations both criminally and medically, and ultimately argues for a uniform system of laws that govern mental illness internationally.

On The Basis Of Sex(Ual Orientation Or Gender Identity): Bringing Queer Equity To School With Title Ix, Chan Tov Mcnamarah

Cornell Law Review

A transgender fourth-grader's teacher refuses to address her by her preferred name and gender. A lesbian high-school student's sexual education class does not teach her about topics relevant to her experience as a queer woman. A gay male college student's campus does not have LGBT-specific post-sexual assault care. Under aformal equality approach to Title IX, can any of these discriminations be remedied? Unfortunately not. And yet, recent victories for the LGBT community have been won on formal equality arguments-that LGBT persons should be treated the same as heterosexual, cisgender persons. In the shadow of marriage equality, the LGBT community has …

How Essential Are Standard-Essential Patents?, Mark A. Lemley, Timothy Simcoe

Cornell Law Review

In this study, we explore what happens when Standard-Essential Patents (SEPs) go to court. What we found surprised us. We expected that proving infringement of SEPs would be easy-they are, after all, supposed to be essential-but that the breadth of the patents might make them invalid. In fact, the evidence shows the opposite. SEPs are more likely to be held valid than a matched set of litigated non-SEP patents, but they are significantly less likely to be infringed. SEPs, then, don't seem to be all that essential, at least when they make it to court.

Energy Exactions, Jim Rossi, Christopher Serkin

Cornell Law Review

Exactions are demands levied on residential or commercial developers to force them, rather than a municipality, to bear the costs of new infrastructure. Local governments commonly use them to address the burdens that growth places on schools, transportation, water, and sewers. But exactions almost never address energy needs, even though local land use decisions can create signficant externalities for the power grid and for energy resources. This Article proposes a novel reform to land use and energy law: "energy exactions"-understood as local fees or timing limits aimed at addressing the energy impacts of new residential or commercial development. Energy exactions …

Oil, Gas, And Rhesus Monkeys: A New Framework For Natural Resources Under The Commercial Activity Exception, Madelaine J. Horn

Cornell International Law Journal

The Foreign Sovereign Immunities Act of 1976 (FSIA) constitutes an exception for sovereign states to the normal jurisdictional rules that govern when parties are subject to suit in US courts. The commercial activity provision is a carveout within that broad exception-it deprives sovereign states of their exceptional immunity when they engage in commercial conduct. Within this framework, courts have used the natural resource rule to circumvent the commercial activity carveout and restore immunity to sovereign states. This Note argues that the rule should be abandoned in favor of a much more limited test, thereby increasing the number of sovereign states …

Gender Parity: The Increasing Success And Subsequent Effect Of Anti-Male Bias Claims In Campus Sexual Assault Proceedings, Weiru Fang

Cornell Law Review

Part I of this Note briefly discusses sexual assault and the legislative and legal history of Title IX. Part II of this Note provides an overview of "male bias" gender-discrimination suits and focuses in particular on the recent decisions by the Second Circuit and Sixth Circuit. In Part III, this Note explains the discrepancy behind the circuit split and illustrates the ramifications of applying one standard over another by pointing to similar arguments made within the Title VII employment context. This Note contends, further, that for the sake of maintaining consistency across jurisprudence and vindicating the goals of discrimination laws …

The Puzzle Of The Dignitary Torts, Kenneth S. Abraham, Edward White

Cornell Law Review

In recent years, there has been much greater legal attention paid to aspects of dignity that have previously been ignored or treated with actual hostility, especially in constitutional law and public law generally. But private law also plays an important role. In particular, certain forms of tort liability are imposed in order to protect individual dignity of various sorts and compensate for invasions of individual dignity. Defamation, invasion of privacy, intentional infliction of emotional distress, and even false imprisonment fall into this category. Despite the growing importance of dignity, this value has received very little self-conscious or express attention in …

Can Soft Regulation Prevent Financial Crises?: The Dutch Central Bank's Supervision Of Behavior And Culture, John M. Conley, Cynthia A. Williams, Lodewijk Smeehuijzen, Deborah E. Rupp

Cornell International Law Journal

Financial regulation has traditionally been "hard": national legislatures and regulators (and sometimes international bodies) require certain kinds of behavior and forbid others, on pain of business sanctions, fines, or even criminal penalties. When a financial crisis happens, the usual after-the-fact response is more hard regulation-new laws, stricter regulations, and often entirely new regulatory agencies.That pattern goes back at least to the 1929 market crash that precipitated the Great Depression.

But the fact that financial crises still occur is leading many observers to wonder if more hard regulation is the best way to prevent the next one. However elaborate the regulatory …

Dam(N) Displacement: Compensation, Resettlement, And Indigeneity, Stephen R. Munzer

Cornell International Law Journal

Hydroelectric dams produce electricity, provide flood control, and improve agricultural irrigation. But the building and operation of these dams frequently involve forced displacement of local communities. Displacement often has an outsized impact on indigenous persons, who are disproportionately poor, repressed, and politically marginalized. One can limit these adverse effects in various ways: (1) taking seriously the ethics of dam-induced development, (2) rooting out corruption, (3) paying compensation at or near the beginning of dam projects, (4) using land-for-land exchanges, (5) disbursing resettlement funds as needed until displaced persons are firmly established in their new locations, and (6) having entities that …

Out Of The Legal Wilderness: Peacetime Espionage, International Law And The Existence Of Customary Exceptions, Inaki Navarrete Mr, Russell Buchan

Cornell International Law Journal

This Article demonstrates that peacetime espionage does not benefit from permissive customary international law exceptions. The mainstream view contends that, though peacetime espionage may contravene international law, developments in customary international law (CIL) nevertheless undercut State responsibility for such conduct. The gist of this view is that acts of espionage benefit from permissive CIL exceptions because its practice is widespread and accepted within the international society. However, the mainstream literature has rarely-if ever-meaningfully engaged with the practice of espionage in an effort to tease out the objective and subjective elements supportive of customary espionage exceptions. This Article closes this gap …

Vol. 51, No. 4 Table Of Contents

Cornell International Law Journal

No abstract provided.

Impersonal Personhood: Crafting A Coherent Theory Of The Corporate Entity, Bryan P. Magee

Cornell Law Review

Corporate legal personhood is a baffling and elusive concept. Are corporations persons and, if so, what does this mean? Ascribing the moniker of "person" to a corporation can conjure up the idea that a corporate entity is entitled to all the natural and legal rights that natural "personhood" entails. This, however, ignores that there are different kinds of "legal person" and that the scope of their respective rights differs based on the purpose of the personhood they are given. This Note posits that the law grants corporations entity-hood primarily to centralize contractual rights and obligations. This purpose, this Note contends, …

Activist Directors And Agency Costs: What Happens When An Activist Director Goes On The Board, John C. Coffee Jr., Robert J. Jackson Jr., Joshua R. Mitts, Robert E. Bishop

Cornell Law Review

We develop and apply a new and more rigorous methodology by which to measure and understand both informed trading and the agency costs of hedge fund activism. We use quantitative data to show a systematic relationship between the appointment of a hedge fund-nominated director to a corporate board and an increase in informed trading in that corporation's stock (with the relationship being most pronounced when the fund's slate of directors includes a hedge fund employee). This finding is important from two different perspectives. First, from a governance perspective, activist hedge funds represent a new and potent force in corporate governance. …

Vol. 104, No. 2 Front Matter

Cornell Law Review

No abstract provided.

Regulatory Takings And The Constitutionality Of Commercial Rent Regulation In New York City, Henry Topper

Cornell Law Review

This Note surveys the current status of small businesses and commercial tenant law in New York City and discusses whether or not the Small Business Jobs Survival Act (SBJSA) and commercial rent control are constitutional in light of current regulatory takings jurisprudence. Part I surveys the history of land use regulations in the city, the introduction of residential rent control, and the city's brief flirtation with commercial rent control in the mid-20th century. Part II explains the decline and current state of small businesses and the commercial law regime in the city, including the SBJSA proposal. Part III describes the …