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Articles 1 - 30 of 89
Full-Text Articles in Law
Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme
Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme
Cornell Law Review
Why do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, like enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue, the two scenarios are not symmetrical.
The Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods LLC illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to empirically …
Remote Control: Treaty Requirements For Regulatory Procedures, Paul Mertenskotter, Richard B. Stewart
Remote Control: Treaty Requirements For Regulatory Procedures, Paul Mertenskotter, Richard B. Stewart
Cornell Law Review
Modern trade agreements have come to include many and varied obligations for domestic regulation and administration. These treaty-based commitments aim primarily to improve the freedom of firms to operate in the global economy by aligning the ways in which governments regulate markets and private actors engage governments through administrative law. They therefore strike at the core of how economies are ordered and entail important distributional questions. An increasingly prevalent and diverse—but hitherto largely neglected—type of treaty obligation prescribes specific procedures for domestic administrative decision-making. This Article frames such requirements as tools of powerful states to control regulatory decision-making by government …
Wrongful Termi(Gay)Tion: A Comparative Analysis Of Employment Non-Discrimination Laws And The Lgbtq+ Workplace Protections In South Africa And The United States, Jared Ham
Cornell Law Review
Although the United States has made great strides toward equality for its LGBTQ+ citizens in recent years, South Africa has demonstrated far greater progress concerning equal protection and employment non-discrimination of its LGBTQ+ citizens. The South African Constitution, South African Constitutional Court cases, and laws passed by the South African Parliament all mandate that LGBTQ+ South Africans be treated equally to their heterosexual counterparts. Discrimination against LGBTQ+ South Africans is expressly forbidden— including in the employment context. The United States still lacks comprehensive federal employment non-discrimination laws or workplace protections for LGBTQ+ individuals. Extending Title VII—either via court decision or …
Vol. 104, No. 1 Table Of Contents
You Are Not Cordially Invited: How Universities Maintain First Amendment Rights And Safety In The Midst Of Controversial On-Campus Speakers, Alyson R. Hamby
You Are Not Cordially Invited: How Universities Maintain First Amendment Rights And Safety In The Midst Of Controversial On-Campus Speakers, Alyson R. Hamby
Cornell Law Review
Against a backdrop of national political turmoil, universities have experienced volatile reactions from their student bodies and outsiders in protest of the inflammatory speakers that schools host on their campuses. This Note discusses the tension between First Amendment protections and tort liability in the context of higher education. Specifically, it focuses on the interplay between controversial, on-campus speakers and the violent protests that arise in reaction to them. While examining this interaction, this Note emphasizes the legal duties of academic institutions in facilitating these on-campus speakers while also protecting their students’ constitutional rights and safety. In examining these conflicts, the …
Making State Civil Procedure, Zachary D. Clopton
Making State Civil Procedure, Zachary D. Clopton
Cornell Law Review
State courts matter. Not only do state courts handle more than sixty times the number of civil cases as federal courts, but they also represent an important bulwark against the effects of federal procedural retrenchment. Yet state courts and state procedure are notably absent from the scholarly discourse.
In order to evaluate state procedure—and in order to understand the states’ relationship to federal procedural retrenchment— this Article presents the first comprehensive study of who makes state civil procedure. This project begins with a systematic review of the formal processes by which states make their rules of procedure. Many of the …
Lying About God (And Love?) To Get Laid: The Case Study Of Criminalizing Sex Under Religious False Pretense In Hong Kong, Jianlin Chen
Lying About God (And Love?) To Get Laid: The Case Study Of Criminalizing Sex Under Religious False Pretense In Hong Kong, Jianlin Chen
Cornell International Law Journal
Section 120 of the Hong Kong Crimes Ordinances— which traces its origin to the U.K. and which is replicated in several other English common law jurisdictions— criminalizes procurement of sexual acts through false representation. Recently, prosecutors used this provision to indict individuals who procured sexual acts on the pretext of performing luck-improving religious rituals. Beyond presenting the first-ever systematic examination of these intriguing fraudulent sex court cases, this Article makes two arguments. First, this Article explains how the strong skepticism, and at times, instinctive rejection by the judges of the purported religious proclamations not only confirm the scholarly concerns over …
Against Populist Isolationism: New Asian Regionalism And Global South Powers In International Economic Law, Pasha L. Hsieh
Against Populist Isolationism: New Asian Regionalism And Global South Powers In International Economic Law, Pasha L. Hsieh
Cornell International Law Journal
This Article provides the most up-to-date examination of the Regional Comprehensive Economic Partnership (RCEP), which is poised to become the world’s largest free trade agreement (FTA). It argues that the 16-country mega-FTA will galvanize the paradigm shift in Asian regionalism and build a normative foundation for the Global South in international economic law. Based on intertwined theoretical and substantive claims, this Article opens an inquiry into the assertive legalism of developing nations in the new regional economic order. It further manifests the pivotal force of emerging economies against populist isolationism in the Trump era that undermines the neoliberal foundation of …
A Christian Oasis: The Role Of Christianity And Custom In The Laws Of Ethiopia, Cyril A. Heron
A Christian Oasis: The Role Of Christianity And Custom In The Laws Of Ethiopia, Cyril A. Heron
Cornell International Law Journal
Part I of this Note will analyze the history of Ethiopia’s legal system.
Part II of this Note focuses on modern Ethiopia and seeks to scrutinize Ethiopia’s Civil Code, Constitution, and other legislation. Written into the new constitution of Ethiopia is a declaration of secularism, similar to the United States and South Africa. Yet, in a nation that has existed as a Christian state for at least a millennium, it is nigh on impossible for Ethiopia to fully divest itself of its cultural mores with mere constitutional edict. The question is, therefore, what is to be made of traditional beliefs …
Why And How Independent Agencies Should Conduct Regulatory Impact Analysis, Jerry Ellig
Why And How Independent Agencies Should Conduct Regulatory Impact Analysis, Jerry Ellig
Cornell Journal of Law and Public Policy
Independent regulatory agencies face increasing pressure to conduct high-quality economic analysis of regulations, similar to the regulatory impact analysis conducted by executive branch agencies. Such analysis could be required by evolving judicial doctrines, regulatory reform statutes, or executive order. This article explains how regulatory impact analysis can contribute to smarter regulation, documents the current low quality of such analysis at many independent regulatory agencies, and offers a blueprint that independent agencies can use to build their capacity to conduct objective, high-quality analysis.
Trans-Cending The Medicalization Of Gender: Improving Legal Protections For People Who Are Transgender And Incarcerated, Lindsey Ruff
Trans-Cending The Medicalization Of Gender: Improving Legal Protections For People Who Are Transgender And Incarcerated, Lindsey Ruff
Cornell Journal of Law and Public Policy
People who are transgender and incarcerated face a unique set of human rights challenges. Courts have made progress protecting transgender people who are incarcerated by relying on the psychiatric diagnosis, Gender Dysphoria (GD), as grounds for legal protections. However, reliance on a medical model of gender has practical limitations and adverse social consequences. This model fails to protect the most vulnerable people of trans experience and contributes to stigma against the transgender community overall. The social and legal interests of people who are transgender and incarcerated would be better served if their rights were protected on alternate legal grounds.
Part …
Vol. 51, No. 3 Table Of Contents
Vol. 51, No. 3 Table Of Contents
Cornell International Law Journal
No abstract provided.
Sustainable Finance & China’S Green Credit Reforms: A Test Case For Bank Monitoring Of Environmental Risk, Virginia Harper Ho
Sustainable Finance & China’S Green Credit Reforms: A Test Case For Bank Monitoring Of Environmental Risk, Virginia Harper Ho
Cornell International Law Journal
In the past few years, the focus of international organizations on sustainable finance— the integration of environmental, social, and governance (“ESG”) considerations into global financial systems— has intensified because of its potential to promote financial stability, better risk assessment, and more efficient allocation of capital. The success of these efforts depends in part on whether banks and other financial institutions can manage, price, and monitor environmental risk.
This Article offers new answers to this question from China— one of the most important global test sites for sustainable finance. Corporate governance theory suggests that creditor monitoring can promote managerial accountability and …
The Republic Of Virtue: The Republican Ideal In British And American Property Law, Maxwell M. Garnaat
The Republic Of Virtue: The Republican Ideal In British And American Property Law, Maxwell M. Garnaat
Cornell International Law Journal
As the estate tax comes under increasing pressure from all sides, it is important that we determine just how rooted in American ideals such a measure truly is. On the one hand, it is true that Lockean theories of private property remain a stalwart influence on the nation, one which may be used to argue against the estate tax. On the other hand, however, the equally venerable theory of republicanism— one adopted and developed by the Framers themselves— can justify its continuation. Applying the principles of republicanism to this specific context, one can see how closely its tenets align with …
Vol. 28, No. 1 Table Of Contents
Vol. 28, No. 1 Table Of Contents
Cornell Journal of Law and Public Policy
No abstract provided.
Who Knows What, And When?: A Survey Of The Privacy Policies Proffered By U.S. Direct-To-Consumer Genetic Testing Companies, James W. Hazel, Christopher Slobogin
Who Knows What, And When?: A Survey Of The Privacy Policies Proffered By U.S. Direct-To-Consumer Genetic Testing Companies, James W. Hazel, Christopher Slobogin
Cornell Journal of Law and Public Policy
Direct-to-consumer genetic testing (DTC-GT) companies have proliferated in the past several years. Based on an analysis of genetic material submitted by consumers, these companies offer a wide array of services, ranging from providing information about health and ancestry to identification of surreptitiously-gathered biological material sent in by suspicious spouses. Federal and state laws are ambiguous about the types of disclosures these companies must make about how the genetic information they obtain is collected, used, and shared. In an effort to assist in developing such laws, this Article reports a survey of the privacy policies these companies purport to follow. It …
Speaking Louder Than Words: Finding An Overt Act Requirement In The Hobbs Act, Matthew Ladew
Speaking Louder Than Words: Finding An Overt Act Requirement In The Hobbs Act, Matthew Ladew
Cornell Journal of Law and Public Policy
Federal conspiracy law has a problem. It is sometimes easier to put someone in prison for twenty years than it is to put her away for five— for the very same crime. This situation stems from a bright-line rule to which the Supreme Court has long adhered: when Congress wants an overt act requirement, Congress will explicitly so specify. Consider the resulting status quo. The general federal conspiracy statute requires proof of an overt act. Its maximum sentence is five years. In contrast, the Hobbs Act contains no overt act requirement, yet it provides for a maximum sentence of twenty …
Do You Tru$T Your Children: A Parent’S Final Dilemma, J. Sam Rodgers
Do You Tru$T Your Children: A Parent’S Final Dilemma, J. Sam Rodgers
Cornell Journal of Law and Public Policy
Incentive trusts developed out of unique American inheritance laws and have become a regarded estate planning tool. Policy, observation, and research suggest that they are inadequate, although still uncritically used. A Hidden Bonus Trust is an improved solution that builds on the shortcomings of incentive trusts. Hidden Bonus Trusts quench parents’ desires to leave legacies and motivate troubled beneficiaries.
The End Of Bargaining In The Digital Age, Saul Levmore, Frank Fagan
The End Of Bargaining In The Digital Age, Saul Levmore, Frank Fagan
Cornell Law Review
Bargaining is a fundamental characteristic of many markets and legal disputes, but it can be a source of inefficiency. Buyers often waste resources by searching for information about past prices, where a seller already holds that information. A second—and novel—source of social loss is that some buyers will avoid otherwise beneficial bargains and sellers with negotiable prices because they recognize the seller’s advantage in any haggling match. They might also hide information that reveals their willingness to pay. This Article argues for mandated disclosure of past prices, and occasionally settlements, where these have been negotiable. The rule requires uniform or …
Roger C. Cramton And The Legal Services Corporation, Charles W. Wolfram
Roger C. Cramton And The Legal Services Corporation, Charles W. Wolfram
Cornell Law Review
No abstract provided.
To All Government Lawyers, Roger Left You A Note: Tribute To Roger C. Cramton, Susan P. Koniak
To All Government Lawyers, Roger Left You A Note: Tribute To Roger C. Cramton, Susan P. Koniak
Cornell Law Review
No abstract provided.
Roger C. Cramton And The Availability Of Legal Services, Thomas D. Morgan
Roger C. Cramton And The Availability Of Legal Services, Thomas D. Morgan
Cornell Law Review
No abstract provided.
Preferencing Educational Choice: The Constitutional Limits, Derek W. Black
Preferencing Educational Choice: The Constitutional Limits, Derek W. Black
Cornell Law Review
Rapidly expanding charter and voucher programs are establishing a new education paradigm in which access to traditional public schools is no longer guaranteed. In some areas, charter and voucher programs are on a trajectory to phase out traditional public schools altogether. This Article argues that this trend and its effects violate the constitutional right to public education embedded in all fifty state constitutions.
Importantly, this Article departs from past constitutional arguments against charter and voucher programs. Past arguments have attempted to prohibit such programs entirely and have assumed, with little evidentiary support, that they endanger statewide education systems. Unsurprisingly, litigation …
Justiciability, Federalism, And The Administrative State, Zachary D. Clopton
Justiciability, Federalism, And The Administrative State, Zachary D. Clopton
Cornell Law Review
Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a simple, forward-looking reading of case-or-controversy dismissals: they should be understood as invitations to legislators to consider other pathways for adjudication. A case dismissed for lack of standing, for mootness, or for requesting an advisory opinion might be a candidate for resolution in a state court …
The Ordinary Heroism Of Lawyers: A Tribute To Roger C. Cramton, W. Bradley Wendel
The Ordinary Heroism Of Lawyers: A Tribute To Roger C. Cramton, W. Bradley Wendel
Cornell Law Review
No abstract provided.
A Jury Of Your [Redacted]: The Rise And Implications Of Anonymous Juries, Leonardo Mangat
A Jury Of Your [Redacted]: The Rise And Implications Of Anonymous Juries, Leonardo Mangat
Cornell Law Review
Since their relatively recent beginnings in 1977, anonymous juries have been used across a litany of cases: organized crime, terrorism, murder, sports scandals, police killings, and even political corruption. And their use is on the rise. An anonymous jury is a type of jury that a court may empanel in a criminal trial; if one is used, then information that might otherwise identify jurors is withheld from the parties, the public, or some combination thereof, for varying lengths of time.
Though not without its benefits, anonymous juries raise questions regarding a defendant’s presumption of innocence, the public’s right to an …
Too Big To Supervise: The Rise Of Financial Conglomerates And The Decline Of Discretionary Oversight In Banking, Lev Menand
Cornell Law Review
The authority of government officials to define and eliminate “unsafe and unsound” banking practices is one of the oldest and broadest powers in U.S. banking law. But this authority has been neglected in the recent literature, in part because of a movement in the 1990s to convert many supervisory judgments about “safety and soundness” into bright-line rules. This movement did not entirely do away with discretionary oversight, but it refocused supervisors on compliance, risk management, and governance—in other words, on internal bank processes.
Drawing on the rules versus standards debate, this Article develops a taxonomy for parsing the various approaches …
Don't Take Me Out To That Ballpark: State Action, Government Speech, And Chief Wahoo After Matal, Robert H. Hendricks
Don't Take Me Out To That Ballpark: State Action, Government Speech, And Chief Wahoo After Matal, Robert H. Hendricks
Cornell Law Review
Close your eyes and imagine yourself driving to a concert. On the way, you pass a car bearing a license plate with the image of a Confederate flag. You pause, and ask . . . Did the state approve that license plate? Does the state endorse the use of the Confederate flag? You keep driving. Eventually you reach the concert and walk in. To your surprise, an Asian- American band named “The Slants” is opening. You pause, and ask . . . I thought the government approves trademarks? Does the Patent and Trademark Office endorse derogatory slurs? These questions strike …