Law Commons^™

Res Judicata As Requisite For Justice, Kevin M. Clermont

Cornell Law Faculty Publications

From historical, jurisprudential, and comparative perspectives, this Article tries to synthesize res judicata while integrating it with the rest of law. From near their beginnings, all systems of justice have delivered a core of res judicata comprising the substance of bar and defense preclusion. This core is universal not because it represents a universal value, but rather because it responds to a universal institutional need. Any justice system must have adjudicators; to be effective, their judgments must mean something with bindingness; and the minimal bindingness is that, except in specified circumstances, the disgruntled cannot undo a judgment in an effort …

Supreme Court Tie In Teacher Case Delivers A Crucial Victory To Unions, Angela B. Cornell

Cornell Law Faculty Publications

No abstract provided.

Systemically Significant Prices, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Publications

Some prices and indices in national or transnational markets take on particular market-wide importance, either because (a) they are associated with ubiquitous inputs to production, (b) they are associated with highly popular asset classes, (c) they tend by convention to be used as benchmarks in determining other prices, or (d) some combination of the above. Examples include prevailing wage and salary rates, certain energy and commodity prices, and such indices and borrowing rates as the Standard & Poor’s 500, the Federal Funds Rate, and the Libor and Euribor interbank lending rate benchmarks.

We call such prices and indices 'systemically important' …

Redundant Public-Private Enforcement, Zachary D. Clopton

Cornell Law Faculty Publications

Redundancy is a four-letter word. According to courts and scholars, redundant litigation is costly, unfair, and confounding. Modern civil procedure has a (nearly) maximalist preference for centralization, and various rules seek to limit duplicative suits within and across court systems. This seemingly dominant view stands in marked contrast to the reality of the modern regulatory state. Redundant public-private enforcement, in which public and private actors have overlapping authority to enforce the law, is ubiquitous. Redundant enforcement also is noticeably underrepresented in the substantial literature on private and public enforcement, which typically treats government agencies and private attorneys general as substitutes …

"Never Having Loved At All": An Overlooked Interest That Grounds The Abortion Right, Sherry F. Colb

Cornell Law Faculty Publications

Feminist and some other abortion rights advocates typically ground the right to abortion in bodily integrity, thus conceptualizing abortion as vindicating a right to disassociate oneself from an intruder. Although valid as a matter of logic, the bodily integrity argument is libertarian and seemingly selfish. But a fundamentally associative interest also grounds the abortion right. A woman who cannot raise a child but is legally required to bear one must undergo the psychic pain of forced separation from an infant whom she is biologically programmed to love. Human mothers, like other mammalian mothers, grieve the loss of their young, as …

An Ode To Sea Turtles & Dolphins: Expanding Wto’S Mandate To Bridge The Trade-Environment Divide, Geary Choe

Cornell Law Library Prize for Exemplary Student Research Papers

Geary Choe’s ambitious paper showcased a diverse and sophisticated understanding of research in public international law and interdisciplinary sources.

Choe’s paper proposes expanding the World Trade Organization’s mandate to carve out a new exception for trade-restrictive measures in multilateral environmental agreements (MEAs). His process involved analyzing international conventions, WTO panel and appellate body reports as well as non-legal materials written by economists, environmentalists and non-governmental organizations. Choe used that research to examine the historical tension between the competing interests of trade vs. environment and concluded with original proposals of how to reconcile them within the WTO’s legal framework.

Most rewardingly, …

"Special," Vestigial, Or Visionary? What Bank Regulation Tells Us About The Corporation - And Vice Versa, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Publications

A remarkable yet seldom noted set of parallels exists between modern U.S. bank regulation, on the one hand, and what used to be garden-variety American corporate law, on the other hand. For example, just as bank charters are matters not of right but of conditional privilege even today, so were all corporate charters not long ago. Just as chartered banks are authorized to engage only in limited, enumerated activities even to- day, so were all corporations restricted not long ago. And just as banks are subject to strict capital regulation even today, so were all corporations not long ago.

In …

Instrumentalizing The Expressive: Transplanting Sentencing Circles Into The Canadian Criminal Trial, Toby S. Goldbach

Cornell Law Faculty Publications

This Article examines reforms to criminal sentencing procedures in Canada, focusing on Aboriginal healing circles, which were incorporated as "sentencing circles" into the criminal trial. Using the lens of comparative law and legal transplants, this Article recounts the period of sentencing reform in Canada in the 1990s, when scholars, practitioners, and activists inquired into Aboriginal confrontation with the criminal justice system by comparing Euro-Canadian and Aboriginal justice values and principles. As a way to bridge the gap between vastly differing worldviews and approaches to justice, judges and Aboriginal justice advocates transplanted sentencing circles into the sentencing phase of the criminal …

The Challenge Of Legitimacy In Sovereign Debt Restructuring, Odette Lienau

Cornell Law Faculty Publications

Since the emergence of the post-World War II international economic system, policymakers have lamented the absence of a global sovereign debt restructuring mechanism. This disappointment has only intensified in recent years, as the failure to provide prompt, comprehensive, and lasting debt relief becomes even more apparent. As a result, scholars and key international actors have argued for the development of a more coherent global approach to debt workouts. But to date this discussion lacks a sustained focus on questions of legitimacy—a fact that is exceptionally puzzling in light of the voluminous scholarship on the legitimacy deficits of international economic institutions …

The Foreign Corrupt Practices Act: Imposing An American Definition Of Corruption On Global Markets, Mateo J. De La Torre

Cornell Law Library Prize for Exemplary Student Research Papers

Mateo de la Torre’s research had an international focus in examining the cross-cultural implications of Foreign Corrupt Practices Act (FCPA).

de la Torre’s research required a comparative analysis of foreign laws that are similar to the United States’ FCPA and included statutes, legislative histories, and commentary from Brazil, Japan, and the United Kingdom. He also consulted extensively with several members of the Cornell Law faculty. de la Torre’s findings provided the basis for his examination of the FCPA’s impact on nondomestic actors and markets, arguing that the United States’ aggressive stance belies the Act’s original purpose. He then presented frameworks …

Introduction To Juries And Mixed Tribunals Across The Globe: New Developments, Common Challenges And Future Directions, Nancy S. Marder, Valerie P. Hans

Cornell Law Faculty Publications

This introduction to the special issue of Oñati Socio-legal Series describes the goals of the conference on Juries and Mixed Tribunals across the Globe, and identifies themes that emerged as jury scholars from all over the world examined different forms of lay participation in legal decision-making. The introduction focuses on common challenges that different systems of lay participation face, including the selection of impartial fact finders and the presentation of complex cases to lay citizens. The introduction and special issue articles also highlight new developments and innovative practices to address these challenges, including some tools, like decision trees, that remain …

The Combatant's Stance: Autonomous Weapons On The Battlefield, Jens David Ohlin

Cornell Law Faculty Publications

Do Autonomous Weapon Systems (AWS) qualify as moral or rational agents? This paper argues that combatants on the battlefield are required by the demands of behavior interpretation to approach a sophisticated AWS with the “Combatant’s Stance” — the ascription of mental states required to understand the system’s strategic behavior on the battlefield. However, the fact that an AWS must be engaged with the combatant’s stance does not entail that other persons are relieved of criminal or moral responsibility for war crimes committed by autonomous weapons. This article argues that military commanders can and should be held responsible for perpetrating war …

Five Easy Pieces: Recurrent Themes In American Property Law, Gregory S. Alexander

Cornell Law Faculty Publications

No abstract provided.

Copyright For Literate Robots, James Grimmelmann

Cornell Law Faculty Publications

Almost by accident, copyright has concluded that copyright law is for humans only: reading performed by computers doesn't count as infringement. Conceptually, this makes sense: copyright's ideal of romantic readership involves humans writing for other humans. But in an age when more and more manipulation of copyrighted works is carried out by automated processes, this split between human reading (infringement) and robotic reading (exempt) has odd consequences and creates its own tendencies toward a copyright system in which humans occupy a surprisingly peripheral place. This essay describes the shifts in fair use law that brought us here and reflects on …

There's No Such Thing As A Computer-Authored Work - And It's A Good Thing, Too, James Grimmelmann

Cornell Law Faculty Publications

Treating computers as authors for copyright purposes is a non-solution to a non-problem. It is a non-solution because unless and until computer programs can qualify as persons in life and law, it does no practical good to call them "authors" when someone else will end up owning the copyright anyway. And it responds to a non-problem because there is nothing actually distinctive about computer-generated works.

There are five plausible ways in which computer-generated works might be considered meaningfully different from human-generated works: (1) they are embedded in digital copies, (2) people create them using computers rather than by hand, (3) …

Legal Interpreter For The Jury: The Role Of The Clerk Of The Court In Spain, Mar Jimeno-Bulnes, Valerie P. Hans

Cornell Law Faculty Publications

The Clerk of the Court (secretario judicial) in Spanish provincial courts is an important legal actor in the proceedings of the modern Spanish jury, introduced in 1995. In contrast to the general verdicts of traditional common-law juries, Spanish juries must answer an often lengthy list of specific questions, and must provide the reasoning supporting these responses. Early on, many Spanish juries found the task of providing legally acceptable responses and reasons challenging. Because the law permits the clerk to enter the deliberation room to assist the jury in its writing of the verdict, the clerk has come to act as …

Civil Procedure's Five Big Ideas, Kevin M. Clermont

Cornell Law Faculty Publications

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 champion 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 importance.

Forty Years Of Death: The Past, Present, And Future Of The Death Penalty In South Carolina (Still Arbitrary After All These Years), John H. Blume, Lindsey S. Vann

Cornell Law Faculty Publications

Forty years ago, the Supreme Court of the United States deemed constitutional new death penalty laws intended to minimize the arbitrariness which led the Court to invalidate all capital sentencing statutes four years earlier in Furman v. Georgia. Over the last four decades the Court has — time and again — attempted to regulate the “machinery of death.” Looking back over the Court’s work, many observers, including two current Supreme Court justices, have questioned whether the modern death penalty has lived up to expectations set by the Court in the 1970s or if, despite 40 years of labor, the American …

Is The Constitution Special?, Christopher Serkin, Nelson Tebbe

Cornell Law Faculty Publications

“[W]e must never forget, that it is a constitution we are expounding.” If there was such a danger when Chief Justice John Marshall wrote those words, there is none today. Americans regularly assume that the Constitution is special, and legal professionals treat it differently from other sources of law. But what if that is wrongheaded? In this Article, we identify and question the professional practice of constitutional exceptionalism. First, we show that standard arguments from text, structure, and history work differently in constitutional law. Second, we examine the possible justifications for such distinctive interpretation among lawyers, and we find them …

The Importance Of 'The Gap', Emily Sherwin

Cornell Law Faculty Publications

One of the central dilemmas of law is what Larry Alexander has called "the gap:" general, determinate rules have significant benefits from the forward-looking perspective of a lawmaker, but generate outcomes that appear wrong from the perspective of individual actors. In this 25-year retrospective of Alexander's initial article on the gap, I examine a possible way out of the dilemma of the gap, and conclude that it does not work.

Territoriality, Technology, And National Security, Zachary D. Clopton

Cornell Law Faculty Publications

Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define “territoriality” in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data …

Incidental Burdens And The Nature Of Judicial Review, Michael C. Dorf

Cornell Law Faculty Publications

Activists and scholars contesting the meaning of the Second Amendment argue over a startling number of its twenty-seven words: "regulated," "Militia," "State," "people," "keep," "bear," and "Arms." Heller and McDonald sought to resolve most of these debates, but before Professors Joseph Blocher and Darrell Miller, no one noticed the potential for contestation over the Second Amendment's final word: "infringed." When does the application of a gun-neutral law infringe the right? In that deceptively simple question lurk important future debates over the Second Amendment, the Constitution, and law itself.