Law Commons^™

Substitute Chancellors: The Role Of The Jury In The Contest Between Common Law And Equity, Bernadette A. Meyler

Cornell Law Faculty Publications

The common law - thought to provide an ancient constitution securing the liberties of the people from monarchical tyranny - and opposition against it, played an acknowledged part in the debates among Royalists, Parliamentarians, and Puritans during seventeenth-century England. Very little attention has, however, been devoted to the status of the jury within these arguments either for the supremacy of the common law or for the King's prerogative, institutionally embodied most prominently in the Star Chamber and the Court of Chancery. As this Article argues, the procedural virtues and the philosophical goals of the jury and of the Chancellor as …

Aall's National Advocacy Efforts, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

Demystifying Legal Reasoning: Part Ii, Larry Alexander, Emily Sherwin

Cornell Law Faculty Publications

"Demystifying Legal Reasoning" defends the proposition that there are no special forms of reasoning peculiar to law. Legal decisionmakers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. Part II (abstracted here) addresses common law reasoning, when prior judicial decisions determine the law. Part III addresses interpretation of texts. We conclude that, in both areas, the popular view that legal decisionmakers practice special forms of reasoning are false.

In Chapter 2, we propose that there are two plausible models of common law reasoning, …

The Status Of Wto Rules In U.S. Law, John J. Barceló Iii

Cornell Law Faculty Publications

Under U.S. implementing legislation and recent court decisions the WTO agreements and rulings have neither direct nor even indirect effect within the U.S. legal system. Political-economic theory can explain this result and the paradox of Congressional support (even mandate) for the more legally binding WTO dispute settlement regime that emerged from the Uruguay Round appearing side-by-side with Congressional insistence on a firewall of separation between WTO law and the U.S. legal system. It can also explain the few exceptional cases - for example, the TRIPS and Government Procurement Agreements - in which the parties adopted a form of quasi-direct effect. …

The Future Of Law Practice In The United States, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Some Observations On The Role Of Social Change On The Courts, Gerald Torres

Cornell Law Faculty Publications

No abstract provided.

Beyond Worship: The Religious Land Use And Institutionalized Persons Act Of 2000 And Religious Institutions' Auxiliary Uses, Sara C. Bronin

Cornell Law Faculty Publications

Religious institutions have long offered their congregants services that go beyond worship. Particularly in the last two decades, they have begun expanding far beyond their traditional offerings to a wider and more diverse array of auxiliary uses - non-worship uses that are affiliated with a religious institution. (One type of large religious institution, the megachurch, is fast gaining members by offering schools, community centers, dining facilities, even movie theaters and gymnasiums.) Government has long granted special protections to the worship uses of religious institutions. A recent federal law - the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) …

Institutional Fixes Versus Fixed Institutions, Robert C. Hockett

Cornell Law Faculty Publications

A number of philosophers, policy thinkers and activists have despaired over the prospect that global institutions can bring progressive change to the international order. They advocate that those who would change things should place their hopes in global social movements rather than global institutions. This essay humbly suggests that we ought to do both. Global institutions require an active global civil society that includes social movements if they would not lose their senses of mission and purpose. Global social movements for their part require global institutions to serve as focal points for their efforts, which are otherwise threatened with diffusion …

Race And Gender In The Law Review, Cynthia Grant Bowman

Cornell Law Faculty Publications

No abstract provided.

The Just And The Wild, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

The Political Economy Of Education Federalism, Michael Heise

Cornell Law Faculty Publications

The No Child Left Behind Act represents the federal government's most significant foray into the nation's elementary and secondary public school policymaking terrain. Although the Act undertakes unassailable policy goals, its critics argue that it represents an unwarranted federal intrusion into education policymaking, generates unintended policy consequences, and amounts to an unfunded federal mandate. Constitutionalists dwell on the Act's threat to structural federalism as it plausibly strains Congress's conditional spending authority. The coercive force that federal education funds exert on local school districts and states attracts particular attention. The No Child Left Behind Act, however, safely navigates through an even …

The Paradox Of Excluding Wto Direct And Indirect Effect In U.S. Law, John J. Barceló Iii

Cornell Law Faculty Publications

No abstract provided.

Horizontal Agreements: Concept And Proof, George A. Hay

Cornell Law Faculty Publications

It is well established that, absent some very special circumstances, agreements on price or certain other terms of trade by otherwise competing entities (i.e., "horizontal agreements") are unlawful per se under the Sherman Act. In practical effect, once the fact of the horizontal agreement has been established, an adverse impact on competition is presumed, and therefore that the plaintiff is spared the burden of proving such an impact. The principal task for plaintiffs in such cases, therefore, is establishing the existence of an agreement.

In the ideal world (from plaintiffs' perspective), there would be "hard" evidence of a "formal" agreement. …

Legal Positivism: Still Descriptive And Morally Neutral, Andrei Marmor

Cornell Law Faculty Publications

It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not at odds with Hart’s thesis about the nature of jurisprudence, while the others are wrong, both as expositions of …

Visions Of Guadalupe: Traces Of The Ghost Panel, Gerald Torres

Cornell Law Faculty Publications

No abstract provided.

Imagine A World Without Hunger: The Hurdles Of Global Justice, Muna B. Ndulo

Cornell Law Faculty Publications

No abstract provided.

Integrating Transnational Perspectives Into Civil Procedure: What Not To Teach, Kevin M. Clermont

Cornell Law Faculty Publications

No abstract provided.

Aedpa: The "Hype" And The "Bite", John H. Blume

Cornell Law Faculty Publications

On April 24, 1996, President Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Thus, the AEDPA era began. While Clinton's presidential signing statement paid lip service to meaningful federal court review of state court convictions, AEDPA's supporters knew better. The fix was in, and happy habeas days were here again. But, as the old saying goes, "What if you gave a revolution and nobody came?" As I will argue, that is in many (but not all) respects what happened. In this Article, I have argued that AEDPA was, in many respects, more "hype" than "bite." For …

No Lawsuit Left Behind, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Cognitive Errors, Individual Differences, And Paternalism, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Legal scholars commonly argue that the widespread presence of cognitive errors in judgment justifies legal intervention to save people from predictable mistakes. Such arguments often fail to account for individual variation in the commission of such errors even though individual variation is probably common. If predictable groups of people avoid making the errors that others commit, then law should account for such differences because those who avoid errors will not benefit from paternalistic interventions and indeed may be harmed by them. The research on individual variation suggests three parameters that might distinguish people who can avoid error: cognitive ability, experience …

Wigmore's Shadow, Annelise Riles

Cornell Law Faculty Publications

Riles relates how John H. Wigmore, professor and Dean of the Northwestern Law School, fanned her interest in legal and literary fiction. Wigmore provided dozens of examples of legal fictions bundled together in the singular, and seemingly straightforward technical device of modern collateral. From this premise, she analyzes the difference between a legal fiction and a literary fiction, and examines the factors that make legal fiction distinctively legal.

Assessing The Ssrn-Based Law School Rankings, Theodore Eisenberg

Cornell Law Faculty Publications

One noteworthy feature of the SSRN-based rankings is the high correlation between them and other rankings. Black and Caron report correlation coefficients between their two Social Science Research Network (SSRN) school rankings (one based on downloads from SSRN and one based on the number of papers posted on SSRN) and six other published rankings. The correlations provide a useful and creative measure of consistency across studies. If ranking studies are highly correlated, then the least expensive and most efficient study to conduct can be used without incurring the expense and delay of the more labor-intensive ranking methods. SSRN has a …

An Empirical Analysis Of Ceo Employment Contracts: What Do Top Executives Bargain For?, Stewart J. Schwab, Randall S. Thomas

Cornell Law Faculty Publications