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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.


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 ...


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 ...


The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger Jan 2018

The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger

Cornell Law Review

As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for ...


Stricken: The Need For Positive Statutory Law To Prevent Discriminatory Peremptory Strikes Of Disabled Jurors, Jordan Benson Jan 2018

Stricken: The Need For Positive Statutory Law To Prevent Discriminatory Peremptory Strikes Of Disabled Jurors, Jordan Benson

Cornell Law Review

A representative jury ensures a truly impartial trial and that all groups are able to share in this valuable opportunity for civic engagement.Though the disabled constitute a minority of the population, their viewpoint is no less necessary to securing the benefits of a representative jury than that of groups already afforded protection from discriminatory strikes. As the disabled become more represented in many areas of society, their continued underrepresentation on juries will become even more difficult to justify. Discriminatory peremptory strikes are a significant, discretionary means by which the disabled can continue to be excluded from juries even when ...


A First Amendment Right To Corrupt Your Politician, Eugene Temchenko Jan 2018

A First Amendment Right To Corrupt Your Politician, Eugene Temchenko

Cornell Law Review

Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is well-established that the Constitution protects the right of political association, which includes contributions to candidates in return for ingratiation and access. Nonetheless, courts and scholars have generally limited this right to contributions to campaigns for public office. After McDonnell v. United States, that may change. Reading the McDonnell opinion in light of McCutcheon, this Note and other commentators conclude that the Supreme Court may have inadvertently ...


Semi-Confidential Settlements In Civil, Criminal, And Sexual Assault Cases, Saul Levmore, Frank Fagan Jan 2018

Semi-Confidential Settlements In Civil, Criminal, And Sexual Assault Cases, Saul Levmore, Frank Fagan

Cornell Law Review

Settlement is more likely if parties are free to set its terms, including a promise that these terms will remain secret between them. State sunshine-in-litigation laws work to defeat this incentive for confidentiality in order to protect third parties from otherwise unknown hazards. The intuition is that a wrongdoer should not be able to pay one plaintiff for silence at the expense of other victims. This Article begins by showing that the intuition is often wrong or overstated. A plaintiff who can assess a defendant’s vulnerability to future claims can extract a large enough settlement to provide substantial deterrence ...


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 ...


Agency And Insanity, Stephen P. Garvey Jan 2018

Agency And Insanity, Stephen P. Garvey

Cornell Law Faculty Publications

This Article offers an unorthodox theory of insanity. According to the traditional theory, insanity is a cognitive or volitional incapacity arising from a mental disease or defect. As an alternative to the traditional theory, some commentators have proposed that insanity is an especially debilitating form of irrationality. Each of these theories faces fair-minded objections. In contrast to these theories, this Article proposes that a person is insane if and because he lacks a sense of agency. The theory of insanity it defends might therefore be called the lost-agency theory.

According to the lost-agency theory, a person lacks a sense of ...


Degrees Of Deference: Applying Vs. Adopting Another Sovereign's Law, Kevin M. Clermont Jan 2018

Degrees Of Deference: Applying Vs. Adopting Another Sovereign's Law, Kevin M. Clermont

Cornell Law Review

Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of federal law’s constraint on state actors, but also in the horizontal choice-of-law setting and even in connection with the status of international law. Application and adoption are different avenues by which to approach a pluralist world. Application involves the recognition of the ...


Panel Assignment In The Federal Courts Of Appeals, Marin K. Levy Nov 2017

Panel Assignment In The Federal Courts Of Appeals, Marin K. Levy

Cornell Law Review

It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random. This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews ...


Beware The "Terror Gap": Closing The Loophole Between The U.S. Terrorist Watchlist System And The Right To Bear Arms, Elizabeth M. Sullivan Nov 2017

Beware The "Terror Gap": Closing The Loophole Between The U.S. Terrorist Watchlist System And The Right To Bear Arms, Elizabeth M. Sullivan

Cornell Law Review

No abstract provided.


Columbia University And Incarcerated Worker Labor Unions Under The National Labor Relations Act, Kara Goad Nov 2017

Columbia University And Incarcerated Worker Labor Unions Under The National Labor Relations Act, Kara Goad

Cornell Law Review

No abstract provided.


Sharing, Samples, And Generics: An Antitrust Framework, Michael A. Carrier Nov 2017

Sharing, Samples, And Generics: An Antitrust Framework, Michael A. Carrier

Cornell Law Review

Rising drug prices are in the news. By increasing price, drug companies have placed vital, even life-saving, medicines out of the reach of consumers. In a recent development, brand firms have prevented generics even from entering the market. The ruse for this strategy involves risk-management programs known as Risk Evaluation and Mitigation Strategies (“REMS”). Pursuant to legislation enacted in 2007, the FDA requires REMS when a drug’s risks (such as death or injury) outweigh its rewards. Brands have used this regime, intended to bring drugs to the market, to block generic competition. Regulations such as the federal Hatch-Waxman Act ...


The Perverse Consequences Of Disclosing Standard Terms, Tess Wilkinson-Ryan Nov 2017

The Perverse Consequences Of Disclosing Standard Terms, Tess Wilkinson-Ryan

Cornell Law Review

Although assent is the doctrinal and theoretical hallmark of contract, its relevance for form contracts has been drastically undermined by the overwhelming evidence that no one reads standard terms. Until now, most political and academic discussions of this phenomenon have acknowledged the truth of universally unread contracts, but have assumed that even unread terms are at best potentially helpful, and at worst harmless. This Article makes the empirical case that unread terms are not a neutral part of American commerce; instead, the mere fact of fine print inhibits reasonable challenges to unfair deals. The experimental study reported here tests the ...


From No Child Left Behind To Every Student Succeeds: Back To A Future For Education Federalism, Michael Heise Nov 2017

From No Child Left Behind To Every Student Succeeds: Back To A Future For Education Federalism, Michael Heise

Cornell Law Faculty Publications

When passed in 2001, the No Child Left Behind Act represented the federal government’s most dramatic foray into the elementary and secondary public school policymaking terrain. While critics emphasized the Act’s overreliance on standardized testing and its reduced school district and state autonomy, proponents lauded the Act’s goal to close the achievement gap between middle- and upper-middle-class students and students historically ill served by their schools. Whatever structural changes the No Child Left Behind Act achieved, however, were largely undone in 2015 by the Every Student Succeeds Act, which repositioned significant federal education policy control in state ...