Law Commons^™

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

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.

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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

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

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

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 Ethical Challenges Of The Marketplace, Eduardo M. Peñalver

Cornell Journal of Law and Public Policy

No abstract provided.

Regulating Markets For Gestational Care: Comparative Perspectives On Surrogacy In The United States And India, Sital Kalantry

Cornell Journal of Law and Public Policy

Many newly emerging surrogacy markets imported the American-style free market model to surrogacy, but this model has led to exploitation and abuse of surrogates even though similar abuses were not observed in the United States. It is interesting that even in U.S. states where there is no legislation that directly regulates surrogacy, industry actors have developed customary terms and norms that provide a basic level of rights and protections to surrogates. However, industry norms do not similarly protect surrogates in India.

I argue that industry actors in the United States are incentivized to create such protective norms because they have …

Markets For Self-Authorship, Hanoch Dagan

Cornell Journal of Law and Public Policy

Markets are complex phenomena with heterogeneous manifestations. They involve different types of goods and services and can be structured around different property and contract types. This plurality of markets justifies a careful attitude towards the definition of a market. It also counsels some suspicion towards overly-broad normative judgments, be they celebratory or critical, launched at markets-as-such.

But markets are powerful institutions that significantly impact individuals, affect relationships, and shape societies. They should thus be subject to critical scrutiny vis-A-vis the various goals that justify the complex legal arrangements which sustain them. Promoting social welfare, rewarding desert, inculcating virtues, and spreading …

Drunk Driving, Blood, And Breath: The Impact Of Birchfield V. North Dakota, Simon Bord

Cornell Journal of Law and Public Policy

Birchfield v. North Dakota is a landmark decision that will influence criminal procedure jurisprudence for years to come. Birchfield drew a distinction between the level of intrusiveness inherent in a breath test versus a blood test, upholding warrantless searches incident to a DUI arrest involving the former, but not the latter. In addition, the Court ruled that criminal penalties for refusing to consent to a blood draw were unconstitutional, but such penalties were an acceptable punishment for motorists who refused to undergo a breath test. Because Birchfield failed to establish a clear rule regarding the permissible scope of implied consent …

Just Prices, Robert C. Hockett, Roy Kreitner

Cornell Journal of Law and Public Policy

In what sense do market prices represent or convey value? At first glance, such prices might look like the upshot of spontaneous social aggregation without exogenously imposed order: uncoordinated individual trading decisions yield "price information" that is said both to induce socially efficient productive decisions and to set a framework that facilitates coherent and welfare-enhancing consumer choice. But while some trading decisions might well be uncoordinated,far from all of them are; and the rules within which trade is conducted are in any event the product of social choice. When we recognize that these rules of trade and certain public practices …

Against Market Insularity: Market, Responsibility, And Law, Avihay Dorfman

Cornell Journal of Law and Public Policy

In this Article, I take stock of some leading attempts to drive a wedge between distinctively market reasoning and practical (including moral) reasoning. Although these attempts focus on different normative foundations-the epistemology of market interaction, the autonomy of its participants, the stability-enhancing quality of markets, and the authority of democratic decision-making-they are of a piece insofar as they seek to trivialize the role of private responsibility for realizing the demands of morality and justice. Essentially, they seek to insulate, at least to an important extent, the market practice of doing well from the demands of doing right. I argue that …

Of Buildings, Statues, Art, And Sperm: The Right To Destroy And The Duty To Preserve, Gregory S. Alexander

Cornell Journal of Law and Public Policy

Courts tend to frame right-to-destroy disputes in terms of a conflict between respecting individual autonomy and avoiding social waste. That framing unduly obscures what is involved in these cases. Autonomy is a rich value that requires discerned investigation, and social waste masks the existence of community capabilities of legitimate concern. A human flourishing perspective illuminates these multiple values and capabilities. Conflicts involving the right to destroy resist neat categorical solutions, but that does not mean that they cannot be resolved rationally or even with a relatively high degree of predictability, as I have tried to show in this Article.

Questioning Market Aversion In Gender Equality Strategies: Designing Legal Mechanisms For The Promotion Of Gender Equality In The Family And The Market, Hila Shamir, Tsilly Dagan, Ayelet Carmeli

Cornell Journal of Law and Public Policy

This Article suggests that tax and welfare policies that promote gender equality require creative thinking about the design of social mechanisms for the promotion of women. It offers a framework for expanding the institutional imagination in order to recalibrate welfare state reforms to promote women. In particular, we advocate the creative use of legal tools and doctrine to dismantle existing dichotomies between private and public, understand the various goals different mechanisms can serve and reassemble them to promote different mixes of normative goals. We propose doing so by looking simultaneously at two fields of redistribution: welfare state benefits and services …

Families And The Ethic Of Globordered Markets, Daphna Hacker

Cornell Journal of Law and Public Policy

In this Article, I examine the ethical implications of the impact of what I term globordered markets-that is, the markets created by the intense interactions between national borders and globalization-on families. While the interrelations between "the family" and "the market" have been acknowledged ever since Engels pointed to the connection between private property and the patriarchal family, and more recently in the rich discussions over work-family balance, there remains much more to be explored in this moral domain. In particular, very little scholarly attention has been given to how families are affected by both the global market and the impact …

Ethical Finance As A Systemic Challenge: Risk, Culture, And Structure, Saule T. Omarova

Cornell Journal of Law and Public Policy

This Article analyzes the principal themes in the newly reinvigorated public debate on the role of ethical norms and cultural factors in financial markets and identifies its key conceptual and normative limitations. It argues that the principal flaw in that debate is that it tends to ignore the critical role of systemic, structural factors in shaping individual firms' internal cultural norms and attitudes toward legitimate business conduct. Reversing the causality assumption underlying the current academic and policy discourse on institutional culture, the Article discusses how broader reform measures seeking to alter the fundamental structure and dynamics of the financial market-on …

The Rationality Of Promising, Emily Sherwin

Cornell Journal of Law and Public Policy

Binding promises yield a number of practical benefits, if in fact they are binding. One benefit is coordination. Knowing that she must perform, the promisor can allocate her time and resources more effectively. The promisee, meanwhile, can make plans on the assumption that the promised act will occur.

Markets for future exchange rely on the coordinating power of binding promises. For this purpose, it may be possible in theory to support coordination by designing and enforcing an ideal set of legal rules governing contractual obligation. Almost certainly, however, markets will function more effectively if promises also impose obligations to perform …