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Articles 1 - 30 of 80
Full-Text Articles in Law
A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko
A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko
Cornell Law Review
This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine- learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate (1) that constitutional discourse has grown increasingly polarized over the past four decades; (2) that polarization has grown faster in constitutional discourse than in nonconstitutlonal discourse; (3) that conservative-leaning speakers have driven …
Reflections On Emerging Practices And Developments In The Field Of Law Reporting: Lessons From Kenya, Teddy J.O. Musiga
Reflections On Emerging Practices And Developments In The Field Of Law Reporting: Lessons From Kenya, Teddy J.O. Musiga
Southern African Journal of Policy and Development
Many users and/or consumers of law reports grapple with two major questions. The first question revolves around the issue why some judicial decisions are referred to as reported decisions, while others are referred to as unreported decisions. This question therefore deals with the dichotomy between reported judicial decisions and unreported judicial decisions. The second question flows from the first and relates to which categories of decisions appear in law reports (and therefore are classified as ‘reported’) and which ones do not (and therefore are classified as ‘unreported’). Put the other way around, that second question becomes: what are the criteria …
The Audiences Of Statutes, David S. Louk
The Audiences Of Statutes, David S. Louk
Cornell Law Review
Although a maxim of statutory drafting is to identify the relevant audience and draft so that the audience can "get the message," conventional theories of statutory interpretation often overlook important considerations about how statutes communicate and delegate to a diverse range of intended audiences. Statutes exist to change the conduct and behavior of many kinds of intended audiences, including administrative agencies, state and local governments, law enforcement officers, corporations, interest groups, lawyers, and laypeople. Influenced by lessons from the philosophies of law and language, this Article contends that Judicial statutory interpretation serves an important yet underappreciated role in providing a …
Volume 105, Number 1 Table Of Contents And Front Matter
Volume 105, Number 1 Table Of Contents And Front Matter
Cornell Law Review
No abstract provided.
Affordable Renewables - Unjust And Unreasonable?, Grace Brosofsky
Affordable Renewables - Unjust And Unreasonable?, Grace Brosofsky
Cornell Law Review
The Federal Energy Regulatory Commission (FERC)-an independent agency tasked with ensuring 'just and reasonable" energy rates-has begun to use energy market payment systems to prop up fossil fuels. FERC has issued orders that prevent renewables from competing with fossil fuels by forcing renewables to bid into energy markets at artificially high rates. FERC has argued that state clean energy subsidies distort energy markets by "suppressing prices" and pushing "needed" fossil fuel generators out of the market. According to FERC, a federal intervention is necessary to protect "market integrity" and ensure that consumers can access reliable electricity.
This Note argues that …
Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen
Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen
Cornell Law Review
The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today's Supreme Court arguments are developed online: they are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent the parties or have even filed a brief in the case at all. This "virtual briefing" (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case …
Extending United States V. Mendoza: Why Defensive Nonmutual Issue Preclusion Is Unavailable Against The Federal Government, Jake E. Goodman
Extending United States V. Mendoza: Why Defensive Nonmutual Issue Preclusion Is Unavailable Against The Federal Government, Jake E. Goodman
Cornell Law Review
Imagine a situation where the U.S. Securities and Exchange Commission (SEC) is Looking to enforce the antifraud provision of the Securities Exchange Act of 1934 against two different companies, arising out of the same transaction. Now suppose the SEC sues Company A ftrst. However, the court finds no violation based on the factual determinations of the transaction and renders a judgment refusing to impose liability against Company A. Unsatisfied, the SEC decides to sue Company B under the same provision. Company B, however, believes the factual issues were already litigated and determined against Company A and wants to preclude relitigation …
Challenging H-1b Denials In Federal Courts: Trends And Strategies, Hun Lee, Stephen W. Yale-Loehr
Challenging H-1b Denials In Federal Courts: Trends And Strategies, Hun Lee, Stephen W. Yale-Loehr
Cornell Law Faculty Publications
The denial rate for H-1B petitions has quadrupled over the past few years, increasing from six percent in fiscal year (FY) 2015 to twenty-four percent in FY 2018. After President Trump issued his ‘‘Buy American and Hire American’’ executive order in April 2017, U.S. Citizenship and Immigration Services (USCIS) has effectively raised the standard of proof on H-1B petitions.
USCIS has used several reasons to deny H-1B petitions, including claims that the employer failed to show that a position qualifies as a ‘‘specialty occupation,’’ impermissibly assigned employees to third-party worksites, or failed to pay the required wage.
Under USCIS’s recent …
Editor's Note, Tinenenji Banda
The People V The Patents And Companies Registration Agency Ex-Partes Finsbury Investment Limited And Zambezi Portland Cement Limited 2017/Ccz/R003 Selected Judgment No. 28 Of 2018, Chanda Chungu
SAIPAR Case Review
The dispute related to how to commence judicial review proceedings in Zambia. The applicant in this matter commenced judicial review proceedings in the High Court of Zambia by way of applying for leave. In between the period after the High Court granted leave to hear the merits of the judicial review and the hearing date, the Patents and Companies Registration Agency (PACRA), the Respondent filed an application to discharge the leave granted. It was at this point that the Applicants filed summons, to have the matter referred to the Constitutional Court to determine whether or not the requirement for leave …
Oversight Failure In Securities Markets, Yesha Yadav
Oversight Failure In Securities Markets, Yesha Yadav
Cornell Law Review
According to statute, securities exchanges play an essential role in ensuring compliance with applicable laws and industry standards. Long imagined as unique in their institutional capacity to bring traders together, collect information and exclude problem participants from the marketplace, exchanges have offered an efficient source of private discipline for public regulators. The classic conception of the exchange, however, no longer holds true in today's markets. Rather than concentrate activity within a handful of exchanges, equity markets are fragmented across a network of thirteen exchanges and around forty lightly regulated, off-exchange alternative venues (colloquially, "dark pools"). This Article shows that the …
Does The Clear And Present Danger Test Survive Cost-Benefit Analysis?, Cass R. Sunstein
Does The Clear And Present Danger Test Survive Cost-Benefit Analysis?, Cass R. Sunstein
Cornell Law Review
Under American regulatory law, the dominant contemporary test involves cost-benefit analysis. The benefits of regulation must justify the costs; if they do, regulation is permissible and even mandatory. Under American free speech law, in sharp contrast, an important contemporary test for the regulation of speech involves "clear and present danger." In general, officials cannot censor or regulate political speech on the ground that the benefits of regulation justify the costs. They may proceed only if the speech is likely to produce imminent lawless action. In principle, it is not simple to explain why the free speech test does not involve …
Incarceration Or E-Incarceration: California's Sb 10 Bail Reform And The Potential Pitfalls For Pretrial Detainees, Ashley Mullen
Incarceration Or E-Incarceration: California's Sb 10 Bail Reform And The Potential Pitfalls For Pretrial Detainees, Ashley Mullen
Cornell Law Review
No abstract provided.
Privacy As Pretext, Susan Hazeldean
Privacy As Pretext, Susan Hazeldean
Cornell Law Review
The terms of the debate over LGBT rights have shifted in recent years, particularly since the Supreme Court made marriage equality the law of the land in Obergefell v. Hodges. Today, people against LGBT equality argue that curtailing LGBT rights is necessary to protect the rights of others. One potent rhetorical weapon used to oppose LGBT rights is the claim that antidiscrimination protections for LGBT people undermine privacy because they permit transgender people to use facilities that accord with their gender identity. This Article uses legal privacy theory to show that allowing transgender people into gendered facilities does not undermine …
Vol. 104, Number 7 Table Of Contents And Front Matter
Vol. 104, Number 7 Table Of Contents And Front Matter
Cornell Law Review
No abstract provided.
Vol. 2, Issue 2 Table Of Contents
Konkola Copper Mines Plc V Nyasulu And 2000 Others Appeal No. 1/2012, Pamela Towela Sambo
Konkola Copper Mines Plc V Nyasulu And 2000 Others Appeal No. 1/2012, Pamela Towela Sambo
SAIPAR Case Review
No abstract provided.
Vedanta Resources Plc And Konkola Copper Mines Plc V Lungowe And Others 2019 Uksc 20, Pamela Towela Sambo
Vedanta Resources Plc And Konkola Copper Mines Plc V Lungowe And Others 2019 Uksc 20, Pamela Towela Sambo
SAIPAR Case Review
This case was initiated in the court of first instance, the England and Wales Technology and Construction Court (hereinafter referred to as the UK High Court Division) on 31 July 2015, by 1, 826 Zambian citizens who are resident in Chingola, Zambia. The claimants sought damages for personal injury, wide ranging environmental harm, damage to property, loss of income and amenity and enjoyment of land arising out of alleged pollution and environmental damage caused by the second appellant, Konkola Copper Mines (hereinafter referred to as ‘KCM’) at its Nchanga copper mine from about 2005 to date.
The first appellant, Vedanta …
The People V The Patents And Companies Registration Agency Ex-Partes Finsbury Investment Limited And Zambezi Portland Cement Limited 2017/Ccz/R003 Selected Judgment No. 28 Of 2018, O'Brien Kaaba
SAIPAR Case Review
The matter came to the Constitutional Court by referral from the High Court. The Applicant applied for leave to issue judicial review process and leave was granted by the High Court. While the main application for judicial review was still pending, the Respondent filed an application to discharge the leave granted to the Applicant. The Applicant opposed this motion and then applied to have the matter referred to the Constitutional Court.
Post-Denial Strategies: How To Get From "No" To "Yes", Diane M. Butler, Leslie K. Dellon, David Isaacson, Stephen W. Yale-Loehr
Post-Denial Strategies: How To Get From "No" To "Yes", Diane M. Butler, Leslie K. Dellon, David Isaacson, Stephen W. Yale-Loehr
Cornell Law Faculty Publications
U.S. Citizenship and Immigration Services (USCIS) seems to be denying more petitions than ever these days. Cases that were solid approvals a few years ago now are receiving denials, even though the law and regulations have not changed. But don’t give up hope. Opportunities exist to overcome denials.
This practice advisory focuses on post-denial strategies for petitions filed with USCIS, not strategies in immigration court. The article discusses motions to reopen, motions for reconsideration, appeals to the USCIS Administrative Appeals Office (AAO), and litigation. This practice advisory also discusses when filing a new petition may be a better option, and …
Misdemeanor Appeals, Nancy J. King, Michael Heise
Misdemeanor Appeals, Nancy J. King, Michael Heise
Cornell Law Faculty Publications
Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one. Yet little empirical information exists on many aspects of misdemeanor prosecutions. This Article provides the first quantitative look at appellate review in misdemeanor cases nationwide. It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.
We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts …
Staying Faithful To The Standards Of Proof, Kevin M. Clermont
Staying Faithful To The Standards Of Proof, Kevin M. Clermont
Cornell Law Review
Academics have never quite understood the standards of proof or, indeed, much about the theory of proof Their formulations beget probabilistic musings, which beget all sorts of paradoxes, which in turn beget radical reconceptions and proposals for reform. The theoretical radicals argue that the law needs some basic reconception such as recognizing the aim of legal proof as not at all a search for truth but rather the production of an acceptable result, or that the law needs some shattering reform such as greatly heightening the civil standard of proof on each part of the case to ensure a more-likely …
Aiding And Abetting In International Criminal Law, Oona A. Hathaway, Alexandra Francis, Aaron Haviland, Srinath Reddy Kethireddy, Alyssa T. Yamamoto
Aiding And Abetting In International Criminal Law, Oona A. Hathaway, Alexandra Francis, Aaron Haviland, Srinath Reddy Kethireddy, Alyssa T. Yamamoto
Cornell Law Review
To achieve justice for violations of international law such as genocide, torture, crimes against humanity, and war crimes, it is essential to address complicity for international crimes. Beginning in the 1990s, there was a proliferation of international and hybrid criminal tribunals, which sought to hold perpetrators of these crimes accountable and, in turn, generated an explosion of international criminal law jurisprudence. Nonetheless, the contours of aiding and abetting liability in international criminal law remain contested. Courts-both domestic and international-have long struggled to identify the proper legal standard for holding actors liable for aiding and abetting even the most serious violations …
Locked Up, Then Locked Out: The Case For Legislative - Rather Than Executive - Felon Disenfranchisement Reform, Amanda J. Wong
Locked Up, Then Locked Out: The Case For Legislative - Rather Than Executive - Felon Disenfranchisement Reform, Amanda J. Wong
Cornell Law Review
A cohesive anti-felon disenfranchisement perspective has gained traction over the last two decades in America. Scholars have harshly criticized disenfranchisement provisions for their insulation and perpetuation of nonwhite marginalization d la Jim Crow. Other critics have also decried felon disenfranchisement for barring prior felons from full social integration. Still more critics point to how disenfranchisement provisions inequitably affect election outcomes. State leaders, recognizing the prevalent attitude against felon disenfranchisement, have taken significant measures to mitigate disenfranchisement laws-for example, some state governors have issued executive orders categorically re-enfranchising ex-felons. These types of actions are the focus on this Note. Certainly, unilateral …
Vol. 104, Number 6 Table Of Contents And Front Matter
Vol. 104, Number 6 Table Of Contents And Front Matter
Cornell Law Review
No abstract provided.
Incorporating The Fresh Start Into Sovereign Debt Restructuring Through Odious Debt, Matthew B. Masaro
Incorporating The Fresh Start Into Sovereign Debt Restructuring Through Odious Debt, Matthew B. Masaro
Cornell Law Review
No abstract provided.
Politics And Authority In The U.S. Supreme Court, Joshua Fischman
Politics And Authority In The U.S. Supreme Court, Joshua Fischman
Cornell Law Review
Public discourse on the Supreme Court often focuses on the divide between the liberal and conservative Justices. There has been a second persistent divide in the Court, however, which has been largely overlooked by scholars, the media, and the public. This second divide has arisen most often in cases involving the jury trial right, the Confrontation Clause, the Fourth Amendment, punitive damages, and the interpretation of criminal statutes. This Article argues that this divide represents disagreements among the Justices over how to determine the limits of the authority of legal actors, particularly juries, executive officials, and trial judges. On one …
Traveling While Hispanic: Border Patrol Immigration Investigatory Stops At Tsa Checkpoints And Hispanic Appearance, Pablo Chapablanco
Traveling While Hispanic: Border Patrol Immigration Investigatory Stops At Tsa Checkpoints And Hispanic Appearance, Pablo Chapablanco
Cornell Law Review
No abstract provided.
New Tech V. New Deal: Fintech As A Systemic Phenomenon, Saule T. Omarova
New Tech V. New Deal: Fintech As A Systemic Phenomenon, Saule T. Omarova
Cornell Law Faculty Publications
Fintech is the hottest topic in finance today. Recent advances in cryptography, data analytics, and machine learning are visibly "disrupting" traditional methods of delivering financial services and conducting financial transactions. Less visibly, fintech is also changing the way we think about finance: it is gradually recasting our collective understanding of the financial system in normatively neutral terms of applied information science. By making financial transactions easier, faster, and cheaper, fintech seems to promise a micro-level "win-win" solution to the financial system's many ills.
This Article challenges such narratives and presents an alternative account of fintech as a systemic, macro-level phenomenon. …