Law Commons^™

Changing Social Security To Achieve Long-Term Solvency And Make Other Improvements: Background Factors, Issues, Options, Peter W. Martin

Cornell Law Faculty Working Papers

For years those responsible for Social Security and policy analysts have acknowledged that the present statutory framework for determining and financing program benefits is unsustainable. Nonetheless, despite the work of Presidential commissions, countless Congressional hearings, proposals for reform advanced by individuals and groups across the political spectrum, changes to Social Security that would restore its fiscal balance into the foreseeable future have repeatedly been deferred or deflected by the nation's law-makers.

This paper aims to assist analysis of and reflection on the range of options for ensuring Social Security's future while not adding yet another solvency proposal to the already …

Were "It" To Happen: Contract Continuity Under Euro Regime Change, Robert C. Hockett

Cornell Law Faculty Working Papers

One way or another, the European Monetary Union (EMU) is apt to endure. The prospect of continuation under the precise contours of the regime as we presently find it, however, is anything but certain. Hence many investors and other actual or prospective contract parties are likely to remain skittish until matters grow clearer. This skittishness, importantly, can itself hamper the prospect of expeditious European recovery. Addressing particular sources of ongoing uncertainty about EMU prospects can itself therefore aid in the project of recovery.

This Essay accordingly aims to impose structure upon one particular, and indeed particularly complex, source of uncertainty …

Targeting Co-Belligerents, Jens David Ohlin

Cornell Law Faculty Working Papers

One of the central controversies of the targeted killing debate is the question of who can be targeted for a summary killing. The following chapter employs a novel normative framework: how to link an individual terrorist with a non-state group that threatens a nation-state. Six linking principles are catalogued and analyzed, including direct participation, co-belligerency, membership, control, complicity and conspiracy. The analysis produces counter-intuitive results, especially for civil libertarians who usually eschew status principles in favor of conduct principles. The concept of membership, a status concept central to international humanitarian law, is ideally suited to situations, like targeted killings, that …

Civil Procedure’S Five Big Ideas, Kevin M. Clermont

Cornell Law Faculty Working Papers

Civil procedure, more than any other of the basic law-school courses, conveys to students an understanding of the whole legal system. I propose that this purpose should become more openly the organizing theme of the course. The focus should remain, of course, on the mechanics of the judicial branch. What I am championing is giving some conscious attention, albeit mainly in the background and at an introductory level, to the big ideas of the constitutional structure within which the law formulates civil procedure. Such attention would unify the doctrinal study, while enriching it for the students and revealing its true …

Rewiring Old Architecture: Why U.S. Courts Have Been So Slow And Uneven In Their Take-Up Of Digital Technology, Peter W. Martin

Cornell Law Faculty Working Papers

Given the centrality of information and communication to the activities and institutions of law and government it is not surprising that during the early turbulent days of the digital revolution enthusiasts imagined that the new technology would work dramatic changes on this critical sphere, changes far greater in magnitude than those flowing from such past innovations as calculators, tape recorders, or copy machines. Students of government and consultants drew analogies between transformations taking place in the private sector (the emergence of e-commerce and distributed, virtual enterprises) and what governments might or should or would become (e-government). Greater efficiency, improved accessibility …

Forgetting Oblivion: The Demise Of The Legislative Pardon, Bernadette A. Meyler

Cornell Law Faculty Working Papers

Since the post-Civil War cases arising out of conflicts over the proper location of the amnesty power, it has generally been thought that pardon and amnesty are synonymous and that the capacity to effect both is vested in the President under Article II. The history of the English version of amnesty—oblivion—within the seventeenth and eighteenth centuries and the colonial and state oblivions that were legislatively enacted from 1650 through the period of the Second Continental Congress suggest otherwise. Oblivion was distinct from pardoning because it erased the underlying events rather than remitting punishment and often arose as a response to …

Creditors And Debt Governance, Charles K. Whitehead

Cornell Law Faculty Working Papers

This chapter from the book Research Handbook on the Economics of Corporate Law (Claire Hill & Brett McDonnell, eds.), provides an introduction to the law and economic theory relating to creditors and debt governance.

The chapter begins with a look at the traditional role of debt, focusing on the impact of debt on corporate governance and, in particular, the effect of an illiquid credit market on creditors’ reliance on covenants and monitoring. It then turns to changes in the private credit market and their effect on lending structure. Greater liquidity raises its own set of agency costs. In response, loans …

Abandoning Law Reports For Official Digital Case Law, Peter W. Martin

Cornell Law Faculty Working Papers

In 2009, Arkansas ended publication of the Arkansas Reports. Since 1837 this series of volumes, joined in the late twentieth century by the Arkansas Appellate Reports covering the state's intermediate court of appeals, had served as the official record of Arkansas's case law. For all decisions handed down after February 12, 2009, not books but a database of electronic documents “created, authenticated, secured, and maintained by the Reporter of Decisions” constitute the “official report” of all Arkansas appellate decisions.

The article examines what distinguishes this Arkansas reform from the widespread cessation of public law report publication that occurred during the …

Decisional Sequencing: Limitations From Jurisdictional Primacy And Intrasuit Preclusion, Kevin M. Clermont

Cornell Law Faculty Working Papers

This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, by weighing those various interests, the judge gets to choose the decisional sequence, although the parties can control which issues they put before the judge.

The law sees fit to put few limits on the judge’s power, and properly so. The few limits are in fact quite narrow in application, and even narrower if properly understood. The Steel Co.-Ruhrgas rule generally requires a federal court to decide …

Digitizing The World's Laws, Claire M. Germain

Cornell Law Faculty Working Papers

Where does one find the foreign investment laws of Botswana? What about the copyright law of the Netherlands, the corporation laws of Japan, or the English translation of the Egyptian Civil Code? Already back in 1991, just before the internet, Wallace Baker remarked that “foreign law has become the daily bread of lawyers everywhere who formally had totally domestic practices.” Since then, the need to access the content of foreign law has increased exponentially. The importance of global access to foreign laws on the internet and how to improve it was recently highlighted at an international Meeting of Experts on …

Russia & Legal Harmonization: An Historical Inquiry Into Ip Reform As Global Convergence And Resistance, Boris N. Mamlyuk

Cornell Law Faculty Working Papers

This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with a specific examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence and tension between state ideology, positive law, and “law in action.” The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has been one of the largest hurdles for Russia’s prolonged accession to the WTO, these historical precedents may help to explain the apparent theoretical or political disconnect between the WTO and Russia. If Russian policymakers …

Is The Law Hopeful?, Annelise Riles

Cornell Law Faculty Working Papers

This essay asks what legal studies can contribute to the now vigorous debates in economics, sociology, psychology, philosophy, literary studies and anthropology about the nature and sources of hope in personal and social life. What does the law contribute to hope? Is there anything hopeful about law? Rather than focus on the ends of law (social justice, economic efficiency, etc.) this essay focuses instead on the means (or techniques of the law). Through a critical engagement with the work of Hans Vaihinger, Morris Cohen and Pierre Schlag on legal fictions and legal technicalities, the essay argues that what is “hopeful” …

Attorneys’ Fees And Expenses In Class Action Settlements: 1993-2008, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Working Papers

We report on a comprehensive data base of eighteen years of published opinions (1993-2008, inclusive) on settlements in class action and shareholder derivative cases in both state and federal courts. An earlier study, covering1993-2002 , revealed a remarkable relationship between attorneys’ fees and the size of class recovery: regardless of the methodology for calculating fees ostensibly employed by the courts, the overwhelmingly important determinant of the fee was simply the size of the recovery obtained by the class. The present study, which nearly doubles the number of cases in the data base, powerfully confirms that relationship. Fees display the same …

Placeholders: Engaging The Hayekian Critique Of Financial Regulation, Annelise Riles

Cornell Law Faculty Working Papers

Since Friedrich Hayek, debates about the proper relationship between the state and the market, and about the optimal design of regulatory institutions, often turn on assumptions about the workings of legal expertise — and in particular about the difference between public expertise (bureaucratic knowledge) and private expertise (private law). Hayek’s central argument, adopted uncritically by a wide array of policy-makers and academics across the political spectrum, is a temporal one: bureaucratic reasoning is inherently one step behind the market, and hence effective market planning is impossible. In contrast, Hayek argues, private ordering is superior because it is of the moment, …

Waste No Land: Property, Dignity And Growth In Urbanizing China, Eva M. Pils

Cornell Law Faculty Working Papers

The Chinese state does not allow rural collectives to sell land, but takes land from them and makes it available on the urban property market. While rural land rights are thus easily obliterated, the newly created urban rights in what used to be rural land enjoy legal protection. The state justifies these land takings by the need for urbanization and economic growth. The takings have resulted in an impressive contribution of the construction and property sector to state revenue and GDP growth, but also in unfairness toward peasants evicted from their land and homes. The example discussed here shows that …

Enhancing Enforcement Of Economic, Social And Cultural Rights Using Indicators: A Focus On The Right To Education In The Icescr, Sital Kalantry, Joycelyn E. Getgen, Steven Arrigg Koh

Cornell Law Faculty Working Papers

Nearly fifteen years ago, Audrey R. Chapman emphasized the importance of ascertaining violations of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a means to enhance its enforcement. Today, the violations approach is even more salient given the recent adoption of the ICESCR’s Optional Protocol, a powerful tool to hold States parties accountable for violations.

Indicators are essential tools for assessing violations of economic, social and cultural rights (ESCRs) because they are often the best way to measure progressive realization. Proposed guidelines on using indicators give guidance on the content of States parties reports to treaty monitoring …

Ecj Review Of Member State Measures For Compliance With Fundamental Rights, John J. Barceló Iii

Cornell Law Faculty Working Papers

This essay explores the avenues through which a European-level system of fundamental rights might be effectively enforced against EU Member State measures. The parallel concept in the U.S. occurred when, starting in 1938, the U.S. Supreme Court began ruling that different distinct guarantees in the Federal Bill of Rights of the U.S. Constitution controlled State government measures. In the EU, the European Court of Justice (ECJ) could conceivably follow a similar line of development within the EU system, or, on the other hand, the European Court for Human Rights (ECtHR) could play that role. This essay explores these options and …

The Beginning Of The Second Wave Of The Women's Movement And Where We Are Today: A Personal Account, Sonia Pressman Fuentes

Cornell Law Faculty Working Papers

The second wave of the women’s movement, which started in the early 1960s, revolutionized women’s legal rights in the U.S. and reverberated in the rest of the world. Ms. Fuentes, a founder of NOW (National Organization for Women) and the first woman attorney in the Office of the General Counsel at the EEOC (Equal Employment Opportunity Commission), discusses the beginning of this movement, her role in it, the changes that have occurred since then, and the problems that remain in the US and throughout the world today.

Measuring State Compliance With The Right To Education Using Indicators: A Case Study Of Colombia’S Obligations Under The Icescr, Sital Kalantry, Jocelyn Getgen, Steven A. Koh

Cornell Law Faculty Working Papers

The right to education is often referred to as a “multiplier right” because its enjoyment enhances other human rights. It is enumerated in several international instruments, but it is codified in greatest detail in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite its importance, the right to education has received limited attention from scholars, practitioners, and international and regional human rights bodies as compared to other economic, social and cultural rights (ECSRs). In this Article, we propose a methodology that utilizes indicators to measure treaty compliance with the right to education. Indicators are essential to measuring compliance …

Rethinking Consideration In The Electronic Age, Robert A. Hillman, Maureen O'Rourke

Cornell Law Faculty Working Papers

Our fast-paced age of electronic agreements that ostensibly govern transactions as diverse as downloading software, ordering goods, and engaging in collaborative development projects raises questions regarding the suitability of contract law as the appropriate legal framework. While this question arises in many settings, we focus here on the free and open source software (FOSS) movement because of the maturity and success of its model and the ubiquity of its software. We explore in particular whether open source licenses are supported by consideration, and argue that they are, and that open source licenses are contracts. We further argue that a contractual …

Protecting Against Plunder: The United States And The International Efforts Against Looting Of Antiquities, Asif Efrat

Cornell Law Faculty Working Papers

In 1970 UNESCO adopted a convention intended to stem the flow of looted antiquities from developing countries to collections in art-importing countries. The majority of art-importing countries, including Britain, Germany, and Japan, refused to join the Convention. Contrary to other art-importing countries, and reversing its own traditionally-liberal policy, the United States accepted the international regulation of antiquities and joined the UNESCO Convention. The article seeks to explain why the United States chose to establish controls on antiquities, to the benefit of foreign countries facing archaeological plunder and to the detriment of the US art market. I argue that the concern …

Expanded Judicial Review Of Awards After Hall Street And In Comparative Perspective, John J. Barceló Iii

Cornell Law Faculty Working Papers

The essay addresses whether party preference for more intrusive court review of the facts and law of an aribitral award will (or should) be respected in national arbitration law. The recent U.S. Supreme Court decision in Hall Street rules that expanded review clauses are not enforceable under the Federal Arbitration Act. The essay argues, however, that expanded review of an international arbitral award should still be possible in the U.S. if the parties draft the arbitration clause carefully. For that purpose the parties should include an expanded review clause and should place the arbitral seat in a State that allows …

International Law In Domestic Courts: A Conflict Of Laws Approach, Karen Knop, Ralf Michaels, Annelise Riles

Cornell Law Faculty Working Papers

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system's jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as "theory through technique."

In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between …

Changing The Paradigm Of Stock Ownership From Concentrated Towards Dispersed Ownership? Evidence From Brazil And Consequences For Emerging Countries, Erica Gorga

Cornell Law Faculty Working Papers

This paper analyzes micro-level dynamics of changes in ownership structures. It investigates a unique event: changes in ownership patterns currently taking place in Brazil. It builds upon empirical evidence to advance theoretical understanding of how and why concentrated ownership structures can change towards dispersed ownership.

Commentators argue that the Brazilian capital markets are finally taking off. The number of listed companies and IPOs in the Sao Paulo Stock Exchange (Bovespa) has greatly increased. Firms are migrating to Bovespa’s special listing segments, which require higher standards of corporate governance. Companies have sold control in the market, and the stock market has …

Governing Guns, Opposing Opium: A Theory Of Internationally Regulated Goods, Asif Efrat

Cornell Law Faculty Working Papers

The paper examines a significant phenomenon overlooked by the trade literature: internationally regulated goods. Contrary to the general trend of trade liberalization, specific goods, such as drugs, small arms, and antiquities, have come under increasing international control in recent decades through a set of global regulatory agreements. I argue that these goods are unique in that they involve transnational negative externalities. Whereas certain countries benefit from the trade in these goods, the trade inflicts negative effects on other countries. Examples of such negative externalities include fatalities and refugee flows resulting from rampant gun violence, high crime rates associated with widespread …

Michelle Obama: The "Darker Side" Of Presidential Spousal Involvement And Activism, Gregory S. Parks, Quinetta M. Roberson, Phd

Cornell Law Faculty Working Papers

Pundits and commentators have attempted to make sense of the role that race and gender have played in the 2008 presidential campaign. Whereas researchers are drawing on varying bodies of scholarship (legal, cognitive and social psychology, and political science) to illuminate the role that Senator Obama’s race and Senator Clinton’s gender has/had on their campaign, Michelle Obama has been left out of the discussion. As Senator Clinton once noted, elections are like hiring decisions. As such, new frontiers in employment discrimination law place Michelle Obama in context within the current presidential campaign. First, racism and sexism are both alive and …

Enhanced Legal E-Ducation: Knowledge Technology At Cornell Law School, Sasha Skenderija

Cornell Law Faculty Working Papers

In 2008, it comes as no surprise that new knowledge technologies have had a significant impact upon the field of legal education as well. While many opportunities have been explored and some of them seized, there also remain a number of hurdles to the full utilization of the new possibilities. Cornell Law School, one of the top legal education institutions in the United States, is widely recognized for the academic excellence of its faculty and students as well as for the innovative approach to legal teaching and research. The significant share of this recognition originates from Cornell’s Legal Information Institute, …

Law Library 2.0: New Roles For Law Librarians In The Information Overload Era, Sasha Skenderija

Cornell Law Faculty Working Papers

WWW has rapidly evolved from a technological into a social medium. Web 2.0 has become a metaphor for the distributed and decentralized collaboration networks on a global scale. With the recent trends of new media development, the sources available have reached a critical mass resulting in an unprecedented information overload. The urgent challenge to all information professionals, in this case law librarians, is no longer availability and direct provision of resources, but rather the filtering and highlighting the ubiquitous Infosphere. The recent transformation of legal information has had more drastic consequences than in many other cases. The Cornell Law Library …

Miroslav Petricek And The Quest For A New Ontology Of Information, Sasha Skenderija

Cornell Law Faculty Working Papers

Research and academic libraries, as well as academic publishers, belong to the sub-category of the infosphere known as “Institutions of Knowledge.” Libraries, however, have made few contributions to the development and utilization of the Internet, and now face a situation in which Google is replacing libraries as the primary research destination of scholars and students. The theories of leading Czech contemporary philosopher, Miroslav Petricek, may provide a construct for better understanding such developments and providing pathways for situating and developing library products and services within these new infosphere realities.

Where Web 2.0 And Legal Information Intersect: Adjusting Course Without Getting Lost, Matthew M. Morrison

Cornell Law Faculty Working Papers

For more than a century, the process of legal research remained unchanged. This process was rooted in an established legal information structure. The law was published in standard texts, such as the West reporters, annotated codes, treatises, and the West Key Number Digest. While the advent of computer-assisted legal research was a departure from the print-based model, it did not fundamentally change the structure of legal information or the nature of authority. In fact, in its conservative beginnings, computer-assisted legal research provided a mere format shift as case texts were transcribed to simple online databases. More recently, Web 2.0 technologies …