Law Commons^™

Rules, Standards, And Such, Kevin M. Clermont

Cornell Law Faculty Publications

This Article aims to create a complete typology of the forms of decisional law. Distinguishing "rules" from "standards" is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image.

A clearer distinction would be useful in formulating and applying the law. For the law-applier, it …

Extraterritoriality And Comparative Institutional Analysis: A Response To Professor Meyer, Zachary D. Clopton, P. Bartholomew Quintans

Cornell Law Faculty Publications

In the last few years, the Supreme Court has applied the presumption against extraterritoriality to narrow the reach of U.S. securities law in Morrison v. National Australia Bank and international-law tort claims in Kiobel v. Royal Dutch Petroleum. By their terms, these decisions are limited to the interpretation of ambiguous federal statutes and claims under the Alien Tort Statute. A potential unintended consequence of these decisions, therefore, is that future plaintiffs will turn to common-law causes of action derived from state and foreign law, potentially filing such suits in state courts. These causes of action may include “human rights claims …

Spandrel Or Frankenstein's Monster? The Vices And Virtues Of Retrofitting In American Law, Michael C. Dorf

Cornell Law Faculty Publications

Ancient mythology, literary fiction, and modern science fiction films all recount a similar cautionary tale: human ingenuity gives rise to a powerful invention, but through human fallibility and, in some tellings, venality, the invention becomes a monster and turns on its creators. Perhaps the most famous example is Mary Shelley's Frankenstein, in which Dr. Frankenstein's attempt to fashion a living man from the dead remains of others succeeds, only then to go horribly awry. Such stories are timeless because they warn of the dangers of indelible features of human nature: hubris and short-sightedness. Recent large-scale catastrophes such as the 2010 …

"Our Cities Institutions" And The Institution Of The Common Law, Bernadette Meyler

Cornell Law Faculty Publications

The audiences of early modern English drama were multiple, and they intersected with the legal system in various ways, whether through the cross-pollination of the theaters and the Inns of Court, the representations of the sovereign’s justice performed before him, or the shared evidentiary orientations of jurors and spectators. As this piece written for a symposium on “Reasoning from Literature” contends, Shakespeare’s Measure for Measure addressed to these various audiences the question of whether the King should judge in person. In doing so, it drew on extant political theories suggesting that the King refrain from exposing himself to public censure …

Towards A Common Law Originalism, Bernadette Meyler

Cornell Law Faculty Publications

Originalists' emphasis upon William Blackstone's "Commentaries on the Laws of England" tends to suggest that the common law of the Founding era consisted in a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some more archaic and others more innovative, co-existed at the time of the Founding. Furthermore, jurists and politicians of the Founding generation were not unaware that the common law constituted a disunified field; indeed, the jurisprudence of the common law suggested …

Judges As Rulemakers, Emily Sherwin

Cornell Law Faculty Publications

In Do Cases Make Bad Law?, Frederick Schauer raises some serious questions about the process of judicial lawmaking. Schauer takes issue with the widely held assumption that judge-made law benefits from the court's focus on a particular real-world dispute. Writing with characteristic eloquence, Schauer argues that the need to resolve a concrete dispute does not enhance the ability of judges to craft sound rules, but instead generates cognitive biases that distort judicial development of legal rules.

Schauer's observations about the risks of rulemaking in an adjudicatory setting are very persuasive. Yet his overall assessment of the common law process …

A Comparative View Of Standards Of Proof, Kevin M. Clermont, Emily Sherwin

Cornell Law Faculty Publications

In common-law systems, the standard of proof for ordinary civil cases requires the party who bears the burden of proof to establish by a preponderance of the evidence that the facts alleged are true. In contrast, the prevailing standard of proof for civil cases in civil-law systems is indistinguishable from the standard for criminal cases: the judge must be firmly convinced that the facts alleged are true. This striking difference in common-law and civil-law procedures has received very little attention from either civilian or comparative scholars.

The preponderance standard applied in common-law systems is openly probabilistic and produces, on average, …

The Gestation Of Birthright Citizenship, 1868-1898: States' Rights, The Law Of Nations, And Mutual Consent, Bernadette Meyler

Cornell Law Faculty Publications

This article considers the inheritance of the seventeenth-century English common law conception of the subject in nineteenth-century America and, ultimately, in the Supreme Court’s decision in United States v. Wong Kim Ark (1898). It examines the claims for birthright citizenship derived from British common law and the three principal arguments against them. These latter included: objections to the assertion of a federal common law of citizenship from the perspective of state sovereignty; arguments that the United States should embrace citizenship by blood rather than by birth in order to conform to the practice of the law of nations and other …

A Defense Of Analogical Reasoning In Law, Emily Sherwin

Cornell Law Faculty Publications

This Article defends the practice of reasoning by analogy on the basis of its epistemic and institutional advantages. The advantages identified for analogical reasoning include that it produces a wealth of data for decisonmaking; it represents the collaborative effort of a number of judges over time; it tends to correct biases that might lead judges to discount the force of prior decisions; and it exerts a conservative force in law, holding the development of law to a gradual pace. Notably, these advantages do not depend on the rational force of analogical reasoning. Rather, the author contends that, as open-ended reasoning …

Process Constraints In Tort, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

‘Economists’ Reasons' For Common Law Decisions - A Preliminary Inquiry, Robert S. Summers, Leigh B. Kelley

Cornell Law Faculty Publications

No abstract provided.

Two Types Of Substantive Reasons: The Core Of A Theory Of Common-Law Justification, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

The Constitutional History Of The Seventh Amendment, Charles W. Wolfram

Cornell Law Faculty Publications

No abstract provided.

Negligence: Blackstone To Shaw To? An Intellectual Escapade In A Tory Vein, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.