Law Commons^™

Recalling The Legal Services Corporation’S Critical First Steps, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

The Coherentism Of Democracy And Distrust, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

A Fictional Tale Of Unintended Consequences: A Response To Professor Wertheimer, Aaron Twerski, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

The Effectiveness Of The Endangered Species Act: A Quantitative Analysis, Martin F.J. Taylor, Kieran F. Suckling, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Population trends for 1095 species listed as threatened and endangered under the Endangered Species Act were correlated with the length of time the species were listed and the presence or absence of critical habitat and recovery plans. Species with critical habitat for two or more years were more than twice as likely to have an improving population trend in the late 1990s, and less than half as likely to be declining in the early 1990s, as species without. Species with dedicated recovery plans for two or more years were significantly more likely to be improving and less likely to be …

On-Line Consumer Standard-Form Contracting Practices: A Survey And Discussion Of Legal Implications, Robert A. Hillman

Cornell Law Faculty Publications

In a recent article, Standard-Form Contracting in the Electronic Age, 77 N.Y.U. L. Rev. 429 (2002), Jeffery Rachlinski and I analyzed whether contract law's approach to the problem of paper standard forms can effectively govern electronic forms. We thought the rational and cognitive reasons consumers fail to read their paper forms apply in the e-environment. Further, although e-consumers do not face manipulative sales agents or impatient customers waiting in line but, instead, largely contract at home in the evening without time constraints, e-consumers are impatient, even click happy, and therefore still do not read their forms or shop for the …

Free Exercise And The Problem Of Symmetry, Nelson Tebbe

Cornell Law Faculty Publications

This Article identifies a difficulty with the neutrality paradigm that currently shapes thinking about the Free Exercise Clause both on the Supreme Court and among its leading critics. It proposes a liberty component, shows how it would generate more attractive results than neutrality alone, and defends the liberty approach against likely objections.

A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Under that rule, only laws and policies that have the purpose of discriminating against religion draw heightened scrutiny. All others are presumptively constitutional, regardless of how severely they burden religious practices.

Critics have attacked the …

Judge-Jury Agreement In Criminal Cases: A Partial Replication Of Kalven And Zeisel's The American Jury, Theodore Eisenberg, Paula L. Hannaford-Agor, Valerie P. Hans, Nicole L. Waters, G. Thomas Munsterman, Stewart J. Schwab, Martin T. Wells

Cornell Law Faculty Publications

This study uses a new criminal case data set to partially replicate Kalven and Zeisel's classic study of judge-jury agreement. The data show essentially the same rate of judge-jury agreement as did Kalven and Zeisel for cases tried almost 50 years ago. This study also explores judge-jury agreement as a function of evidentiary strength (as reported by both judges and juries), evidentiary complexity (as reported by both judges and juries), legal complexity (as reported by judges), and locale. Regardless of which adjudicator's view of evidentiary strength is used, judges tend to convict more than juries in cases of "middle" evidentiary …

The Fate Of Firms: Explaining Mergers And Bankruptcies, Clas Bergström, Theodore Eisenberg, Stefan Sundgren, Martin T. Wells

Cornell Law Faculty Publications

Using a uniquely complete data set of more than 50,000 observations of approximately 16,000 corporations, we test theories that seek to explain which firms become merger targets and which firms go bankrupt. We find that merger activity is much greater during prosperous periods than during recessions. In bad economic times, firms in industries with high bankruptcy rates are less likely to file for bankruptcy than they are in better years, supporting the market illiquidity arguments made by Shleifer and Vishny (1992). At the firm level, we find that, among poorly performing firms, the likelihood of merger increases with poorer performance, …

Rulemaking Versus Adjudication: A Psychological Perspective, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (the adjudicative process) or by declaring general principles through a centralized authority that are to be applied in individual cases (through the rulemaking process). Administrative agencies have long had the unfettered authority to choose between the two methods. Although each method could identify the same solution to the legal issues that come before them, in practice, the two systems commonly settle upon different resolutions. Each system presents the underlying legal issue from a different cognitive perspective, highlighting and hiding different …

Fraud By Hindsight, G. Mitu Gulati, Jeffrey J. Rachlinski, Donald C. Langevoort

Cornell Law Faculty Publications

In securities-fraud cases, courts routinely admonish plaintiffs that they are not permitted to rely on allegations of "fraud by hindsight." In effect, courts disfavor plaintiffs' use of evidence of bad outcomes to support claims of securities fraud. Disfavoring hindsight evidence appears to tap into a well known, well-understood, and intuitively accessible problem of human judgment of "20/20 hindsight." Events come to seem predictable after unfolding, and hence, bad outcomes must have been predicted by people in a position to make forecasts. Psychologists call this phenomenon the hindsight bias. The popularity of this doctrine among judges deciding securities cases suggests that …

Professionalism As Interpretation, W. Bradley Wendel

Cornell Law Faculty Publications

In this Article, I defend the interpretive attitude of professionalism. Professionalism is a stance toward the law which accepts that a lawyer is not merely an agent of her client. Rather, in carrying out her client's lawful instructions, a lawyer has an obligation to apply the law to her client's situation with due regard to the meaning of legal norms, not merely their formal expression. Professionalism requires a lawyer acting in a representative capacity to respect the achievement represented by law, namely the final settlement of contested issues (both factual and normative) with a view toward enabling coordinated action in …

The Deep Grammar Of Distribution: A Meta-Theory Of Justice, Robert C. Hockett

Cornell Law Faculty Publications

No abstract provided.

Misunderstanding Ability, Misallocating Responsibility, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

In the Anglo-American legal tradition, people are responsible for damage caused by their failure to conform their conduct with that of the "reasonable person." With few exceptions, so long as one's conduct conforms to that of the reasonable person, then even if the conduct harms others, it does not create liability. Courts understand that the "reasonable person" is an idealized legal fiction but believe the construct to be a useful way to identify culpable conduct. For the reasonable-person test to be useful, courts must identify the characteristics of this reasonable person. As to cognitive and perceptual abilities, courts endow this …

Environmental Tribalism, Douglas A. Kysar, James Salzman

Cornell Law Faculty Publications

Recent writings by Dan Farber and J.B. Ruhl have put forward a strong case for "eco-pragmatic" and "radical middle" approaches to environmental policymaking. Rather than debate the merits of such an approach, in this Article we examine whether eco-pragmatic policy development is likely in practice and where it might occur, given the tribal nature of public environmental advocacy. We use the remarkably polarized reaction to Bjorn Lomborg's book, "The Skeptical Environmentalist," as a vehicle to explore the seemingly fundamental divide that exists between warring parties within the environmental law and policy communities. By offering a more complete understanding of why …

Separate But Equal And Single-Sex Schools , Gary J. Simson

Cornell Law Faculty Publications

Spurred on by published reports about gender bias in the schools, public single-sex schools, which had almost disappeared from the scene in the U.S. fifteen years ago, began to make a comeback in the early 1990s. In addition, in the past few years, the Bush Administration has taken measures to add momentum to this development. Does the principle that separate is inherently unequal, which the Supreme Court in Brown v. Board of Education laid down in the context of public schools separated by race, also apply to public schools separated by sex?

Part I of this Article examines the constitutionality …

Who Pays The Auditor Calls The Tune?: Auditing Regulations And Clients' Incentives, Amy Shapiro

Cornell Law Faculty Publications

As we move on from the financial scandals of the early 2000s, the question of how to prevent the next Enron continues to be a pressing one. This Article focuses on the law’s deeply conflicted treatment of auditors of public corporations. Though the audit firm is charged with serving as the public’s watchdog in insuring good financial disclosure, the auditor’s actual client is the audited corporation itself, whose interests concerning disclosure are not necessarily aligned with those of investors. Because the Sarbanes-Oxley Act of 2002 left this structure in place, further reform is needed. One promising suggestion is to give …

Reflections On Lee, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

Domestic And International Developments Relating To The Death Penalty: Introduction And Remarks, Sandra L. Babcock

Cornell Law Faculty Publications

In recent years, international law has played an increasingly prominent role in the development of death penalty jurisprudence in both domestic and international tribunals. In the United States, the citation of foreign jurisprudence by the Supreme Court in Roper v. Simmons and Atkins v. Virginia has generated an intense debate within the Court, Congress, and the media. In the Caribbean, decisions of the Judicial Committee of the Privy Council and the Inter-American Court on Human Rights have resulted in commutations of numerous death sentences. While abolitionists have celebrated these developments, the death penalty remains a popular sanction, and human rights …

Is The Concept Of The Person Necessary For Human Rights?, Jens David Ohlin

Cornell Law Faculty Publications

The concept of the person is widely assumed to be indispensable for making a rights claim. But a survey of the concept's appearance in legal discourse reveals that the concept is stretched to the breaking point. Personhood stands at the center of debates as diverse as the legal status of embryos and animals to the rights and responsibilities of corporations and nations. This Note analyzes the evidence and argues that personhood is a cluster concept with distinct components: the biological concept of the human being, the notion of a rational agent, and unity of consciousness. This suggests that it is …

Economic Rationality Vs. Ethical Reasonableness: The Relevance Of Law And Economics For Legal Ethics, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Judges And Ideology: Public And Academic Debates About Statistical Measures, Gregory C. Sisk, Michael Heise

Cornell Law Faculty Publications

Scholars who use empirical methods to study the behavior of judges long have labored in relative obscurity, unknown outside of academic circles (and indeed they only recently have emerged into the mainstream of the legal academy). However, the seclusion of the ivory tower has been breached as public attention has become increasingly focused upon studies that suggest the influence of ideological or partisan variables upon the outcomes of court cases. Over the last few years, the statistical work of scholars on judicial decisionmaking has provoked controversy in the wider legal community and has been enlisted by one side of the …

Rulemaking Versus Adjudication: A Psychological Perspective, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (through the adjudicative process) or by declaring general principles through a centralized authority that are to be applied in individual cases (through the rulemaking process). Administrative agencies have long had the unfettered authority to choose between the two methods. Although each method could identify the same solution to the legal issues that come before them, in practice, the two systems commonly settle upon different resolutions. Each system presents the underlying legal issue from a different cognitive perspective, highlighting and hiding …

On The Right To Private Property And Entitlement To One's Income, Andrei Marmor

Cornell Law Faculty Publications

No abstract provided.

Education And Interrogation: Comparing Brown And Miranda, John H. Blume, Sheri Lynn Johnson, Ross Feldmann

Cornell Law Faculty Publications

Although the Warren Court had its share of grand decisions, perhaps it should be known instead for its grand goals--particularly the goals of ending America's shameful history of segregation and of providing a broad array of constitutional rights to persons accused of committing crimes. Brown v. Board of Education and Miranda v. Arizona, the two most well-known decisions of the Warren Court (and possibly the two most well-known decisions in the history of the Supreme Court), best capture the Court's labor in the rocky fields of our nation's legal, political, and cultural life. In this Article, we explore certain parallels …

Death Sentence Rates And County Demographics: An Empirical Study, Theodore Eisenberg

Cornell Law Faculty Publications

The number of murders in a state largely determines the size of a state's death row. The more murders, the larger the death row. This fundamental relation yields surprising results, including the newsworthy finding that Texas's death sentencing rate is not unusually high. Recent state-level research also underscores the importance of race in the demography of death row. Death penalty research has long emphasized race's role, and with good reason--a racial hierarchy exists in death sentence rates. Black defendants who murder white victims receive death sentences at the highest rate; white defendants who murder white victims receive death sentences at …

Eminent Domain And Secondary Rent-Seeking, Gregory S. Alexander

Cornell Law Faculty Publications

On The Nature Of Corporations, Lynn A. Stout

Cornell Law Faculty Publications

Legal experts traditionally distinguish corporations from unincorporated business forms by focusing on corporate characteristics like limited shareholder liability, centralized management, perpetual life, and free transferability of shares. While such approaches have value, this essay argues that the nature of the corporation can be better understood by focusing on a fifth, often-overlooked, characteristic of corporations: their capacity to "lock in" equity investors' initial capital contributions by making it far more difficult for those investors to subsequently withdraw assets from the firm. Like a tar pit, a corporation is much easier for equity investors to get into, than to get out of. …

The Lawlessness Of Aggregative Torts, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Trinko: Going All The Way, George A. Hay

Cornell Law Faculty Publications

Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg

Cornell Law Faculty Publications

The U.S. Supreme Court, in Furman v. Georgia (1972), held that the death penalty is constitutional only when applied on an individualized basis. The resultant changes in the laws in death penalty states fostered the involvement of psychiatric and psychologic expert witnesses at the sentencing phase of the trial, to testify on two major issues: (1) the mitigating factor of a defendant’s abnormal mental state and (2) the aggravating factor of a defendant’s potential for future violence. This study was an exploration of the responses of capital jurors to psychiatric/psychologic expert testimony during capital sentencing. The Capital Jury Project is …