Law Commons^™

The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman

Cornell Law Faculty Publications

Capital punishment in this country, and in South Carolina, has its roots in racial subjugation, stereotype, and animosity. The extreme disparities we report here have dampened due to the combined effects of decreasing levels of open racial antagonism, the reforms of the modem death penalty, including categorical exemptions for juveniles and person with intellectual disabilities and prohibition of the imposition of the death penalty for the crime of rape, and the (small) increase in diversity in capital juries. But dampened does not mean eradicated. Significant disparities in the administration of capital punishment persist today. The color of a defendant's skin …

Parochial Procedure, Maggie Gardner

Cornell Law Faculty Publications

The federal courts are often accused of being too parochial, favoring U.S. parties over foreigners and U.S. law over relevant foreign or international law. According to what this Article terms the “parochial critique,” the courts’ U.S.-centrism generates unnecessary friction with allies, regulatory conflict, and access-to-justice gaps. This parochialism is assumed to reflect the preferences of individual judges: persuade judges to like international law and transnational cases better, the standard story goes, and the courts will reach more cosmopolitan results.

This Article challenges that assumption. I argue instead that parochial doctrines can develop even in the absence of parochial judges. Our …

Objects Of Art; Objects Of Property, Gregory S. Alexander

Cornell Law Faculty Publications

Seemingly worlds apart, art and the law of property in fact share much in common. Some of this shared space is obvious, the result of their intersection through property law's protection and regulation of art. But another aspect of their commonality is considerably less obvious. Both rely, implicitly and in ways not always acknowledged, on assumptions about objects in the world-thing-ness. That is, both have relied, or traditionally have done so, on certain assumptions about the nature of objects-the objects of art and the objects of property-and the upshot of those assumptions is that those objects are characterized by thing-ness, …

When Tenure Standards Are Wrong, James Grimmelmann

Cornell Law Faculty Publications

No abstract provided.

If It Walks Like Systematic Exclusion And Quacks Like Systematic Exclusion: Follow-Up On Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997-2014, Ann M. Eisenberg, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume

Cornell Law Faculty Publications

This Article builds on an earlier study analyzing bases and rates of removal of women and African-American jurors in a set of South Carolina capital cases decided between 1997 and 2012. We examine and assess additional data from new perspectives in order to establish a more robust, statistically strengthened response to the original research question: whether, and if so, why, prospective women and African-American jurors were disproportionately removed in different stages of jury selection in a set of South Carolina capital cases.

The study and the article it builds on add to decades of empirical research exploring the impacts (or …

The Supreme Court’S Application Of 'Ordinary Contract Principles' To The Issue Of The Duration Of Retiree Healthcare Benefits: Perpetuating The Interpretation/Gap-Filling Quagmire, Robert A. Hillman

Cornell Law Faculty Publications

The United States Supreme Court purported to apply "ordinary contract principles" in its decision reversing the Sixth Circuit Court of Appeals in M&G Polymers USA v. Tackett . The Sixth Circuit had held that plaintiffs, retired employees of M&G, were entitled to lifetime healthcare benefits under their union's agreement with M&G. According to the Supreme Court, the Sixth Circuit wrongly relied on a false set of "inferences" established in International Union v. Yard-Man, Inc. to find that "in the absence of extrinsic evidence to the contrary, the provisions of [the collective bargaining agreement] indicated an intent to vest …

Law-And-Economics Approaches To Labour And Employment Law, Stewart J. Schwab

Cornell Law Faculty Publications

This article describes the distinctive approaches that law and economics takes to labour and employment law. The article distinguishes between ‘economic analysis of law’ and ‘law and economics’, with the former applying economic models to generally simple legal rules while the latter blends messier institutional detail with legal and economic thought. The article describes three eras of law-and-economics scholarship, recognizing that economics teaches that markets work and markets fail. Era One emphasizes that labour laws and mandatory employment rules might reduce overall social welfare by preventing a benefit or term from going to the party that values it most highly. …

Incomprehensible Discrimination, James Grimmelmann, Daniel Westreich

Cornell Law Faculty Publications

The following (fictional) opinion of the (fictional) Zootopia Supreme Court of the (fictional) State of Zootopia is designed to highlight one particularly interesting issue raised by Solon Barocas and Andrew Selbst in Big Data’s Disparate Impact. Their article discusses many ways in which data-intensive algorithmic methods can go wrong when they are used to make employment and other sensitive decisions. Our vignette deals with one in particular: the use of algorithmically derived models that are both predictive of a legitimate goal and have a disparate impact on some individuals. Like Barocas and Selbst, we think it raises fundamental questions about …

Pain And Suffering Damages In Personal Injury Cases: An Empirical Study, Yun-Chien Chang, Theodore Eisenberg, Tsung Hsien Li, Martin T. Wells

Cornell Law Faculty Publications

Many jurisdictions award pain and suffering damages, yet it is difficult for judges or juries to quantify pain. Several jurisdictions, such as California, cap pain and suffering damages or other noneconomic damages, and legal scholars have proposed ways to control such damages. Reforms and proposals, however, have been based on limited empirical evidence. It remains an open question whether components of economic damages explain pain and suffering damages. This study employs a unique dataset of Taiwan district court cases and uses detailed information on the components of pecuniary damages. Pain and suffering damages highly correlate with the plaintiff’s medical expenses, …

Sixth Circuit Undermines Labor Statute, Angela B. Cornell

Cornell Law Faculty Publications

No abstract provided.

Limiting The Last-In-Time Rule For Judgments, Kevin M. Clermont

Cornell Law Faculty Publications

A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound, the last-in-time rule …

Inside The Arbitrator's Mind, Susan D. Franck, Anne Van Aaken, James Freda, Chris Guthrie, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

Bank Governance And Systemic Stability: The "Golden Share" Approach, Saule T. Omarova

Cornell Law Faculty Publications

The global financial crisis of 2008-2009 has sharply reframed the debate on the role of bank corporate governance as a mechanism of systemic crisis prevention. Among other things, it revealed how often the incentives of bank managers and shareholders to maximize short-term private gains are perfectly aligned as a matter of internal governance, but work directly against the broader public interest in preserving long-term financial stability. This Article accepts the existence of that built-in potential conflict as the critical starting point for answering the central question of post-crisis bank governance: How do we ensure that the board of directors of …

Real + Imaginary = Complex: Toward A Better Property Course, James Grimmelmann

Cornell Law Faculty Publications

“Property” in most law schools means real property: the dense, illogical, and special-purpose body of land law. But this is wrong: property also comes in personal, intangible, and intellectual flavors—all of them more important to modern lawyers than land. Real property is deeply unrepresentative of property law, and focusing our teaching on it sells the subject short. A better property course would fully embrace these other forms of property as real property’s equals. Escaping the traditional but labyrinthine classifications of real property frees teachers to bring out the underlying conceptual coherence and unity of property law. The resulting course is …

Private Law And The Future Of Patents, Oskar Liivak

Cornell Law Faculty Publications

As it operates today, patent law does not qualify as private law and, without change, I doubt it ever will. For some, this is as it should be and any private law aspects that remain in the patent system should be purged. The basic argument is that the dominant theory of patents is just not compatible with private law and patent doctrine should reflect a pure public law theoretical basis. I agree that today's dominant patent theory is incompatible with private law principles. Yet agreeing with that inherent incompatibility does not imply that doctrine needs to be reformed. There is …

Judging The Judiciary By The Numbers: Empirical Research On Judges, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that …

Dignity Takings, Dignity Restoration: A Tort Law Perspective, Valerie P. Hans

Cornell Law Faculty Publications

Money damages can operate to restore the dignity of a person who has been injured in tort or deprived of property. A financial award or settlement conveys an acknowledgment of the wrong and signals the reestablishment of equity between defendant and plaintiff. Whether the award is seen as adequate to fully restore dignity is influenced by context, especially comparison cases. And financial compensation directly provided by the defendant holds greater promise for dignity restoration.

Putting Distribution First, Robert C. Hockett

Cornell Law Faculty Publications

It is common for normative legal theorists, economists and other policy analysts to conduct and communicate their work mainly in maximizing terms. They take the maximization of welfare, for example, or of wealth or utility, to be primary objectives of legislation and public policy. Few if any of these theorists seem to notice, however, that any time we speak explicitly of maximizing one thing, we speak implicitly of distributing other things and of equalizing yet other things. Fewer still seem to recognize that we effectively define ourselves by reference to that which we distribute and equalize. For it is in …

Inter-American Court Recognizes Elevated Status Of Trade Unions, Rejects Standing Of Corporations, Angela B. Cornell

Cornell Law Faculty Publications

The Inter-American Court was unanimous in concluding that legal entities do not have the standing to directly access the Inter-American system in a contentious process as presumptive victims. Corporations therefore will not be permitted to access the Court as victims of human rights transgressions, which the Court determined is limited to human beings, with two exceptions: trade unions and indigenous communities. Trade unions have standing as victims of human rights violations on their behalf and that of their members, but under certain limitations. This commentary focuses on the Court’s decision with regard to trade unions, but begins with a description …

Forces Of Federalism, Safety Nets, And Waivers, Edward H. Stiglitz

Cornell Law Faculty Publications

Inequality is the defining feature of our times. Many argue it calls for a policy response, yet the most obvious policy responses require legislative action. And if inequality is the defining feature of our times, partisan acrimony and gridlock are the defining features of the legislature. So being, it is worth considering what role administrative agencies, and administrative law, might play in ameliorating or exacerbating economic inequality. Here, I focus on American safety net programs, many of which are joint operations between federal administrative agencies and state governments. In this context, a central mode of bureaucratic policy innovation comes in …

Are Bank Fiduciaries Special?, Robert C. Hockett

Cornell Law Faculty Publications

A growing body of post-crisis legal and economic literature suggests that future financial crises might be averted by tinkering with the internal governance structures of banks and other financial institutions. In particular, contributors to this literature propose tightening the fiduciary duties under which officers and directors of the relevant financial institutions labor. I argue in this symposium article that such proposals are doomed to failure under all circumstances save one - namely, that under which the relevant financial institutions are in whole or in part treated as publicly owned.

The argument proceeds in two parts. I first show that the …

The Finance Franchise, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Publications

The dominant view of banks and other financial institutions is that they function primarily as intermediaries, managing flows of scarce funds from those who have accumulated them to those who have need of them and can pay for their use. This understanding pervades textbooks, scholarly writings, and policy discussions – yet it is fundamentally false as a description of how a modern financial system works. Finance today is no more primarily “intermediated” than it is pre-accumulated or scarce.

This Article challenges the outdated narrative of finance as intermediated scarce private capital and maps the basic structure and dynamics of the …

Consumer Internet Standard Form Contracts In India: A Proposal, Robert A. Hillman

Cornell Law Faculty Publications

India's burgeoning Internet commerce sector has made consumers susceptible to standard-form contracts. Due to the slim likelihood of consumers reading the terms, vendors may often draft heavy-handed terms in the contracts, thereby adversely impacting consumer interests. The Indian legal framework in this regard is inadequate. This article evaluates the existing suggestions on standard-form contracts and argues that none of them safeguard consumer interests sufficiently. Instead, based on the American Law Institutes' Principles of the Law of Software Contracts, the article proposes a disclosure approach that would benefit the interests of Indian consumers engaged in commerce on the Internet.

Donald Trump And Other Agents Of Constitutional Change, Michael C. Dorf

Cornell Law Faculty Publications

Backlash is just one of the mechanisms by which constitutions change over time, but it is arguably the most important, because constitution writers and amenders react to past evils; they institutionalize backlash. The German Constitution- especially its protection for human dignity-institutionalizes backlash against Nazism. The Fourth Amendment reflects Revolutionary-era backlash against general warrants and writs of assistance. The Reconstruction Amendments embody backlash against slavery and caste.

Even without formal text, backlash can become embedded in our constitutional understanding. For example, eventual backlash against internment of persons of Japanese ancestry inscribes at least a minimally antiracist principle in our constitutional order. …

Brother, Can You Spare A Dollar? Designing An Effective Framework For Foreign Currency Liquidity Assistance, Dan Awrey

Cornell Law Faculty Publications

The core principles of financial crisis management call upon central banks to lend freely, against good quality collateral, and at a penalty rate of interest, to solvent but illiquid banks and other financial institutions during periods of widespread panic and instability. While often taken for granted, these principles were designed for a world in which central banks have the capacity to create money denominated in the same currency as the one in which domestic banks and other financial institutions issue deposits and other short-term liabilities.

Unfortunately, this is not the world in which we live. The application of these principles …

Exemplary Legal Writing 2016: Books Selected By Our Respectable Authorities: Five Recommendations, Femi Cadmus

Cornell Law Faculty Publications

No abstract provided.

Consenting To Computer Use, James Grimmelmann

Cornell Law Faculty Publications

The federal Computer Fraud and Abuse Act (CFAA) makes it a crime to “access a computer without authorization or exceed authorized access.” Courts and commentators have struggled to explain what types of conduct by a computer user are “without authorization.” But this approach is backwards; authorization is not so much a question of what a computer user does, as it is a question of what a computer owner allows.

In other words, authorization under the CFAA is an issue of consent, not conduct; to understand authorization, we need to understand consent. Building on Peter Westen’s taxonomy of consent, I argue …

Judging Foreign States, Zachary D. Clopton

Cornell Law Faculty Publications

Famed foreign relations law principles, including the act of state doctrine, the public law taboo, and Zschernig’s foreign affairs preemption, rely on the notion that U.S. courts should not sit in judgment on foreign states. Judges in these cases, as well as scholars writing in the area, frequently suggest that U.S. courts should sit out of important disputes due to considerations of sovereign equality and international comity. Yet, in less attention-grabbing cases, U.S. courts routinely sit in judgment on foreign judgments, laws, legal systems, and interests, sometimes concluding that they do meet U.S. standards. The first goal of this project, …

Embedded Contracts And A Continuum Of Sovereign Debt, Odette Lienau

Cornell Law Faculty Publications

What is the relationship of a government to its population as it pertains to sovereign debt? And how does this fit into the larger web of relationships and obligations that make up the international financial arena? These questions are incredibly difficult to think through – beyond the capacity of one author alone. I am therefore grateful to have the company of Yuri Biondi, Barry Herman, Tomoko Ishikawa, and Kunibert Raffer in beginning to consider them. In addressing their thoughtful and thought-provoking comments, I see this response less as an opportunity to answer every potential challenge or differential emphasis. Indeed, the …

The Common Law Of War, Jens D. Ohlin

Cornell Law Faculty Publications

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the "common law of war," which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term "common law of war"in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the "common law of war" referred to a branch of …