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Full-Text Articles in Law

Balanced Judicial Realism In The Service Of Justice: Judge Richard D. Cudahy, Elizabeth Mertz, Cynthia Grant Bowman Jul 2018

Balanced Judicial Realism In The Service Of Justice: Judge Richard D. Cudahy, Elizabeth Mertz, Cynthia Grant Bowman

Cornell Law Faculty Publications

There is a quiet irony to be found in scholarly writings about the judiciary, which often center around high-profile jurists selected as the “great” judges. But there are great judges who do not receive or even want such widespread recognition, and who do not discuss their philosophy of judging—they simply focus on the job in front of them. Judges who operate with humility can often be very quiet about their legacies—brushing the issue off, as if uncomfortable with the attention. Anyone who knew Judge Richard D. Cudahy of the United States Court of Appeals for the Seventh Circuit ...


Vol. 1, Issue 2 Masthead May 2018

Vol. 1, Issue 2 Masthead

SAIPAR Case Review

No abstract provided.


Editor's Note, Tinenenji Banda May 2018

Editor's Note, Tinenenji Banda

SAIPAR Case Review

No abstract provided.


Vol. 1, Issue 2 Cover May 2018

Vol. 1, Issue 2 Cover

SAIPAR Case Review

No abstract provided.


Esan V.The Attorney General (Appeal No. 96/2014) [2016] Zmsc 255, Nicholas Kahn-Fogel May 2018

Esan V.The Attorney General (Appeal No. 96/2014) [2016] Zmsc 255, Nicholas Kahn-Fogel

SAIPAR Case Review

No abstract provided.


Raila Amolo Odinga And Another V Independent Electoral And Boundaries Commission And Others Presidential Petition No. 1 Of 2017, O'Brien Kaaba May 2018

Raila Amolo Odinga And Another V Independent Electoral And Boundaries Commission And Others Presidential Petition No. 1 Of 2017, O'Brien Kaaba

SAIPAR Case Review

No abstract provided.


Nyimba Investments Limited Vs Nico Insurance Zambia Limited (Appeal No. 130/2016) [2017] Zmsc 32, Edward Sampa May 2018

Nyimba Investments Limited Vs Nico Insurance Zambia Limited (Appeal No. 130/2016) [2017] Zmsc 32, Edward Sampa

SAIPAR Case Review

No abstract provided.


Attorney General V Mutuna And Others (Appeal No. 088/2012) [2013] Zmsc 38, Muna B. Ndulo May 2018

Attorney General V Mutuna And Others (Appeal No. 088/2012) [2013] Zmsc 38, Muna B. Ndulo

SAIPAR Case Review

No abstract provided.


Dh Brothers Industries (Pty) Limited Vs. Olivine Industries (Pty) Limited (Appeal No. 74/2010) [2012] Zmsc 17, Chanda N. Tembo May 2018

Dh Brothers Industries (Pty) Limited Vs. Olivine Industries (Pty) Limited (Appeal No. 74/2010) [2012] Zmsc 17, Chanda N. Tembo

SAIPAR Case Review

No abstract provided.


Law Association Of Zambia V. The Attorney General (Appeal No. 8/2014) [2016] Zmsc 243, Muna B. Ndulo, Samuel Ndungu May 2018

Law Association Of Zambia V. The Attorney General (Appeal No. 8/2014) [2016] Zmsc 243, Muna B. Ndulo, Samuel Ndungu

SAIPAR Case Review

No abstract provided.


Milford Maambo And Others V The People 2016/Cc/R001 [2017], O'Brien Kaaba May 2018

Milford Maambo And Others V The People 2016/Cc/R001 [2017], O'Brien Kaaba

SAIPAR Case Review

No abstract provided.


Vol. 1, Issue 2 Table Of Contents May 2018

Vol. 1, Issue 2 Table Of Contents

SAIPAR Case Review

No abstract provided.


A Jury Of Your [Redacted]: The Rise And Implications Of Anonymous Juries, Leonardo Mangat May 2018

A Jury Of Your [Redacted]: The Rise And Implications Of Anonymous Juries, Leonardo Mangat

Cornell Law Library Prize for Exemplary Student Research Papers

Since their relatively recent beginnings in 1977, when the first completely anonymous jury was empaneled in a federal court in New York, anonymous juries have been used across a litany of cases: organized crime, terrorism, murder, sports scandals, police killings, and even gubernatorial 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, often for varying lengths of time.

Though not without its ...


United Democratic Movement V Speaker Of The National Assembly And Others (Cct89/17) [2017] Zacc 21, Tinenenji Banda May 2018

United Democratic Movement V Speaker Of The National Assembly And Others (Cct89/17) [2017] Zacc 21, Tinenenji Banda

SAIPAR Case Review

No abstract provided.


Divide & Concur: Separate Opinions & Legal Change, Thomas B. Bennett, Barry Friedman, Andrew D. Martin, Susan Navarro Smelcer May 2018

Divide & Concur: Separate Opinions & Legal Change, Thomas B. Bennett, Barry Friedman, Andrew D. Martin, Susan Navarro Smelcer

Cornell Law Review

To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for the importance of concurring opinions, demonstrating how they serve as the pulse and compass of legal change. Concurring opinions let us know what is happening below the surface of the law, thereby encouraging litigants to push the law in particular directions. This is particularly true ...


Lawyers' Abuse Of Technology, Cheryl B. Preston May 2018

Lawyers' Abuse Of Technology, Cheryl B. Preston

Cornell Law Review

Lawyers are highly educated and, allegedly, of higher than average intelligence, but sometimes individual lawyers demonstrate colossal errors in judgment, especially when insufficiently trained in the new and emerging risks involved with the technological age. For instance, although the internet is a necessary tool for attorneys' and is now a prominent feature in the everyday lives of all actors in the legal system, this technology poses particularized and often unanticipated risks of professional and ethical abuse -- risks that are extraordinary both in quantity and intensity. As Harvard's Director of the Center for the Legal Profession warned: We are "only ...


The Maternal Dilemma, Noya Rimalt May 2018

The Maternal Dilemma, Noya Rimalt

Cornell Law Review

When enacting the FMLA and setting a minimum standard of family leave for all eligible employees, Congress was particularly cautious about attacking the stereotype that all women are responsible for family caregiving. As Justice Rehnquist explained in Nevada v. Hibbs, the goal was to encourage men to assume more caretaking responsibilities at home, thus reducing employers' incentives to discriminate against women by basing hiring and promotion decisions on the stereotype of women as mothers. Indeed, the likely contribution of the gender- neutral parental leave legislation to the promotion of gender equality in the division of care-work at home, hence to ...


Making America Safe Again: The Proper Interpretation Of [Section] 1101 (A)(43)(S) Of The Immigration And Nationality Act From Both A Chevron And A Public Policy Perspective, Jon Derenne May 2018

Making America Safe Again: The Proper Interpretation Of [Section] 1101 (A)(43)(S) Of The Immigration And Nationality Act From Both A Chevron And A Public Policy Perspective, Jon Derenne

Cornell Law Review

The law must give our government every opportunity to protect Americans from the actions of criminal alien residents. This includes interpreting our existing statutes to provide the government with the broadest authority possible to deport resident aliens who violate our laws. As such, the optimal interpretation of the "relating to obstruction of justice" language within the INA is to implement the common sense textual interpretation applied by the Third Circuit, reading the statute broadly to encompass crimes that are listed in the obstruction of justice heading in the U.S. Code, as well as other logically related crimes.


Benefit Corporations: A Proposal For Assessing Liability In Benefit Enforcement Proceedings, Jaime Lee May 2018

Benefit Corporations: A Proposal For Assessing Liability In Benefit Enforcement Proceedings, Jaime Lee

Cornell Law Review

There has been a growing trend of more socially conscious consumption as a new generation of consumers and business leaders rises to the forefront. This trend has elicited a response from existing corporations and entrepreneurs starting new businesses such that socially-minded goals are taken into account in addition to profit-maximizing goals. Because the traditional corporation models restricted the ability of businesses to serve both socially-conscious and profit-maximizing goals simultaneously, new "fourth sector" corporations that combine aspects of the traditional for-profit, non-profit, and government sectors have been increasing in number. The most notable of these "fourth sector" corporations are benefit corporations ...


Article 2 Of The Ucc: Some Thoughts On Success Or Failure In The Twenty-First Century, Robert A. Hillman Apr 2018

Article 2 Of The Ucc: Some Thoughts On Success Or Failure In The Twenty-First Century, Robert A. Hillman

Cornell Law Faculty Publications

The volume of litigation on Uniform Commercial Code Article 2, along with the rise of e-commerce, raises the question of whether Article 2 can succeed in the twenty-first century. There are, of course, many ways to measure success or failure of legislation. One strategy, applied here, is to evaluate Article 2 against the UCC’s ambitious “purposes and policies” of simplifying, clarifying, and modernizing commercial law, supporting commercial practices, and promoting uniformity of the law among the states. In doing so, I ask three questions that help determine when particular sections of Article 2 impede these goals and are ripe ...


Diagonal Public Enforcement, Zachary D. Clopton Apr 2018

Diagonal Public Enforcement, Zachary D. Clopton

Cornell Law Faculty Publications

Civics class teaches the traditional mode of law enforcement: The legislature adopts a regulatory statute, and the executive enforces it in the courts. But in an increasingly interconnected world, a nontraditional form of regulatory litigation is possible in which public enforcers from one government enforce laws adopted by a second government in the second government’s courts. That is, one government provides the executive while the second provides the legislature and the judiciary. I call this nontraditional form “diagonal public enforcement.”

Although diagonal public enforcement has escaped systematic study, one can find examples in U.S. courts going back more ...


The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams Mar 2018

The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams

Cornell Law Review

In the summer of 2015 the United States Supreme Court handed down two groundbreaking constitutional family law decisions. One decision became famous overnight Obergefell v. Hodges declared that same-sex couples have the constitutional right to marry. The other, Kerry v. Din, went largely overlooked. That later case concerned not the right to marry but the rights of marriage. In particular, it asked whether a person has a constitutional liberty interest in living with his or her spouse. This case is suddenly of paramount importance: executive orders targeting particular groups of immigrants implicate directly this right to family reunification.

This Article ...


International Cybertorts: Expanding State Accountability In Cyberspace, Rebecca Crootof Mar 2018

International Cybertorts: Expanding State Accountability In Cyberspace, Rebecca Crootof

Cornell Law Review

States are not being held accountable for the vast majority of their harmful cyberoperations, largely because classifications created in physical space do not map well onto the cyber domain. Most injurious and invasive cyberoperations are not cybercrimes and do not constitute cyberwarfare, nor are states extending existing definitions of wrongful acts permitting countermeasures to cyberoperations (possibly to avoid creating precedent restricting their own activities). Absent an appropriate label, victim states have few effective and nonescalatory responsive options, and the harms associated with these incidents lie where they fall.

This Article draws on tort law and international law principles to construct ...


The Central Claiming Renaissance, Andres Sawicki Mar 2018

The Central Claiming Renaissance, Andres Sawicki

Cornell Law Review

The Supreme Court has recently reinvigorated the law of patentable subject matter. But beneath the headlines proclaiming the return of limits to patent eligibility, a more profound shift has taken place: central claiming is reborn.

The Court's eligibility cases are significant outliers compared to today's run-of-the-mill patent law because claim language plays little role in their analyses. In our modern peripheral claiming system, the claim language is the nearexclusive guide to the patent's boundaries. But in its earliest days, our patent system pursued a central claiming approach, in which the inventor's actual work determined the patent ...


Using Daubert To Evaluate Evidence-Based Sentencing, Charlotte Hopkinson Mar 2018

Using Daubert To Evaluate Evidence-Based Sentencing, Charlotte Hopkinson

Cornell Law Review

Despite its purported positive impact on the criminal justice system, evidence-based sentencing risks fooling judges and juries and further contributing to the overrepresentation of men of color and poor people in prisons. The problems with the creation of these models, namely a lack of replication, potentially unconstitutional use of certain factors, high false positive rates, and issues with G2i abstraction, should all create serious concerns for actors in and around the criminal justice system.


The Partiality Norm: Systematic Deference In The Office Of Legal Counsel, Adoree Kim Mar 2018

The Partiality Norm: Systematic Deference In The Office Of Legal Counsel, Adoree Kim

Cornell Law Review

This study shows that the Office of Legal Counsel does not offer "detached, apolitical legal advice" in practice. Rather, the OLC is deeply and systematically deferential to the President. The implications are grave considering the OLC's de facto lawmaking power, a result of its position as legal adviser for the executive-- "the judgment of [the OLC] . . . becomes the law." Moreover, the OLC "is frequently asked to opine on issues of first impression that are unlikely to be resolved by the courts--a circumstance in which OLC's advice may effectively be the final word on the controlling law." Whether the ...


Delegating For Trust, Edward H. Stiglitz Feb 2018

Delegating For Trust, Edward H. Stiglitz

Cornell Law Faculty Publications

Courts and legal observers have long been concerned by the scope of authority delegated to administrative agencies. The dominant explanation of delegated authority is that it is necessary to take advantage of administrative agencies' expertise and expansive rulemaking capacity. Though this explanation makes sense in many settings, it falters in many areas and has given rise to a number of longstanding puzzles, such as why Congress does not invest in its own institutional capacity.

Unrecognized in this debate over the puzzles of delegation is that Congress may delegate to take advantage of another distinctive attribute of administrative decisionmaking: the credible ...


Contested Visions: The Value Of Systems Theory For Corporate Law, Tamara Belinfanti, Lynn A. Stout Feb 2018

Contested Visions: The Value Of Systems Theory For Corporate Law, Tamara Belinfanti, Lynn A. Stout

Cornell Law Faculty Publications

Despite the dominant role corporations play in our economy, culture, and politics, the nature and purpose of corporations remains hotly contested. This conflict was brought to the fore in the recent Supreme Court opinions in Citizens United and Hobby Lobby. Although the prevailing narrative for the past quarter-century has been that corporations “belong” to shareholders and should pursue “shareholder value,” support for this approach, which has been justified as essential for managerial accountability, is eroding. It persists today primarily in the form of the argument that corporations should seek “long-term” shareholder value. Yet, as this Article shows, when shareholder value ...


A Pragmatist's View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman Feb 2018

A Pragmatist's View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman

Cornell Law Faculty Publications

This article discusses Professor Nate Oman's excellent new book, "The Dignity of Commerce," which makes an impressive case for how markets can produce "desirable" outcomes for society. In addition to a comprehensive account of what he calls "virtues" of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions.

Oman is not only a fan of markets, but he asserts that markets are the "center" of contract theory, and provide its normative foundation. Elaborating, Oman concludes that "contract law exists primarily to support markets" and that ...


Mdl V. Trump: The Puzzle Of Public Law In Multidistrict Litigation, Andrew D. Bradt, Zachary D. Clopton Jan 2018

Mdl V. Trump: The Puzzle Of Public Law In Multidistrict Litigation, Andrew D. Bradt, Zachary D. Clopton

Cornell Law Faculty Publications

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered — Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some ...