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Cornell University Law School

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Articles 1 - 30 of 2009

Full-Text Articles in Law

Reconciling Forum-Selection And Choice-Of-Law Clauses, Kevin M. Clermont May 2020

Reconciling Forum-Selection And Choice-Of-Law Clauses, Kevin M. Clermont

Cornell Law Faculty Publications

In a recent article, Professor Tanya Monestier argued that courts should change their ways so as to apply lex fori to all questions involving forum-selection clauses. I agree that lex fori governs matters of enforceability, but I disagree as to matters of interpretation. On the basis of case law and policy arguments, I argue that the law chosen by the contract should govern interpretation of the forum-selection clause.


Rules, Standards, And Such, Kevin M. Clermont May 2020

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 ...


Medical And Mental Health Implications Of Gestational Surrogacy And Trends In State Regulations On Compensated Gestational Surrogacy: A Report Submitted To The New York State Legislature, Steven Spandorfer, Allison Petrini, Sital Kalantry Mar 2020

Medical And Mental Health Implications Of Gestational Surrogacy And Trends In State Regulations On Compensated Gestational Surrogacy: A Report Submitted To The New York State Legislature, Steven Spandorfer, Allison Petrini, Sital Kalantry

Cornell Law Faculty Publications

As the New York State legislature considers legalizing compensated gestational surrogacy this legislative session, this report provides insight into (1) the impact of surrogacy on the medical and mental health of women who become surrogates and the children born through gestational surrogacy, and (2) how other state legislatures have addressed compensated gestational surrogacy in recent years.

Medical research demonstrates that there is significant growth in gestational surrogacy in the United States. The number of families working with gestational surrogates has quadrupled in the new millennium. Weill Cornell Medicine physicians and medical students reviewed the published literature on the medical and ...


Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow Jan 2020

Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow

Cornell Law Faculty Publications

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon’s work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and ...


Minding The Empagran Gap, Maggie Gardner Jan 2020

Minding The Empagran Gap, Maggie Gardner

Cornell Law Faculty Publications

No abstract provided.


Spyware Vs. Spyware: Software Conflicts And User Autonomy, James Grimmelmann Jan 2020

Spyware Vs. Spyware: Software Conflicts And User Autonomy, James Grimmelmann

Cornell Law Faculty Publications

No abstract provided.


Dealing With Disruption: Emerging Approaches To Fintech Regulation, Saule T. Omarova Jan 2020

Dealing With Disruption: Emerging Approaches To Fintech Regulation, Saule T. Omarova

Cornell Law Faculty Publications

“Fintech” refers to a variety of digital assets, technologies, and infrastructure that deal with the operation of today’s financial markets. The regulation of this presents both legal and regulatory challenges. This article examines the regulatory responses to fintech disruption; specifically, the “experimentation” approach, the “incorporation” approach, and the “accommodation” approach. These approaches provide a baseline for further discussion and policy analysis in response to “Fintech.”


Challenging H-1b Denials In Federal Courts: Trends And Strategies, Hun Lee, Stephen W. Yale-Loehr Dec 2019

Challenging H-1b Denials In Federal Courts: Trends And Strategies, Hun Lee, Stephen W. Yale-Loehr

Cornell Law Faculty Publications

The denial rate for H-1B petitions has quadrupled over the past few years, increasing from six percent in fiscal year (FY) 2015 to twenty-four percent in FY 2018. After President Trump issued his ‘‘Buy American and Hire American’’ executive order in April 2017, U.S. Citizenship and Immigration Services (USCIS) has effectively raised the standard of proof on H-1B petitions.

USCIS has used several reasons to deny H-1B petitions, including claims that the employer failed to show that a position qualifies as a ‘‘specialty occupation,’’ impermissibly assigned employees to third-party worksites, or failed to pay the required wage.

Under USCIS ...


Post-Denial Strategies: How To Get From "No" To "Yes", Diane M. Butler, Leslie K. Dellon, David Isaacson, Stephen W. Yale-Loehr Nov 2019

Post-Denial Strategies: How To Get From "No" To "Yes", Diane M. Butler, Leslie K. Dellon, David Isaacson, Stephen W. Yale-Loehr

Cornell Law Faculty Publications

U.S. Citizenship and Immigration Services (USCIS) seems to be denying more petitions than ever these days. Cases that were solid approvals a few years ago now are receiving denials, even though the law and regulations have not changed. But don’t give up hope. Opportunities exist to overcome denials.

This practice advisory focuses on post-denial strategies for petitions filed with USCIS, not strategies in immigration court. The article discusses motions to reopen, motions for reconsideration, appeals to the USCIS Administrative Appeals Office (AAO), and litigation. This practice advisory also discusses when filing a new petition may be a better ...


Misdemeanor Appeals, Nancy J. King, Michael Heise Oct 2019

Misdemeanor Appeals, Nancy J. King, Michael Heise

Cornell Law Faculty Publications

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one. Yet little empirical information exists on many aspects of misdemeanor prosecutions. This Article provides the first quantitative look at appellate review in misdemeanor cases nationwide. It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts ...


Split Derivatives: Inside The World's Most Misunderstood Contract, Dan Awrey Jul 2019

Split Derivatives: Inside The World's Most Misunderstood Contract, Dan Awrey

Cornell Law Faculty Publications

Derivatives are the "bad boys" of modern finance: exciting, dangerous, and fundamentally misunderstood. These misunderstandings stem from the failure of scholars and policymakers to fully appreciate the unique legal and economic structure of derivative contracts, along with the important differences between these contracts and conventional equity and debt securities. This Article seeks to correct these misunderstandings by splitting derivative contracts open, identifying their constituent elements, and observing how these elements interact with one another. These elements include some of the world's most sophisticated state-contingent contracting, the allocation of property and decision-making rights, and relational mechanisms such as reputation and ...


New Tech V. New Deal: Fintech As A Systemic Phenomenon, Saule T. Omarova Jul 2019

New Tech V. New Deal: Fintech As A Systemic Phenomenon, Saule T. Omarova

Cornell Law Faculty Publications

Fintech is the hottest topic in finance today. Recent advances in cryptography, data analytics, and machine learning are visibly "disrupting" traditional methods of delivering financial services and conducting financial transactions. Less visibly, fintech is also changing the way we think about finance: it is gradually recasting our collective understanding of the financial system in normatively neutral terms of applied information science. By making financial transactions easier, faster, and cheaper, fintech seems to promise a micro-level "win-win" solution to the financial system's many ills.

This Article challenges such narratives and presents an alternative account of fintech as a systemic, macro-level ...


Money's Past Is Fintech's Future: Wildcat Crypto, The Digital Dollar, And Citizen Central Banking, Robert C. Hockett Jun 2019

Money's Past Is Fintech's Future: Wildcat Crypto, The Digital Dollar, And Citizen Central Banking, Robert C. Hockett

Cornell Law Faculty Publications

This Essay argues that crypto-currencies will soon go the way of the ‘wildcat’ banknotes of the mid-19th century. As central banks worldwide upgrade their payments systems, the Fed will begin issuing a ‘digital dollar’ that leaves no licit function for what the Author calls ‘wildcat crypto.’ But the imminent change heralds more than a shakeout in fintech. It will also make possible a new era of what the Author calls ‘Citizen Central Banking.’ The Fed will administer a national system of ‘Citizen Accounts.’ This will not only end the problem of the ‘unbanked,’ it will also simplify monetary policy. Instead ...


The 'Too Big To Fail' Problem, Saule T. Omarova Jun 2019

The 'Too Big To Fail' Problem, Saule T. Omarova

Cornell Law Faculty Publications

“Too big to fail” – or “TBTF” – is a popular metaphor for a core dysfunction of today’s financial system: the recurrent pattern of government bailouts of large, systemically important financial institutions. The financial crisis of 2008 made TBTF a household term, a powerful rhetorical device for expressing the widely shared discontent with the pernicious pattern of “privatizing gains and socializing losses” it came to represent in the public’s eye. Ten years after the crisis, TBTF continues to frame much of the public policy debate on financial regulation. Yet, the analytical content of this term remains remarkably unclear.

Taking a ...


Incarceration Or E-Carceration: California’S Sb 10 Bail Reform And The Potential Pitfalls For Pretrial Detainees, Ashley Mullen May 2019

Incarceration Or E-Carceration: California’S Sb 10 Bail Reform And The Potential Pitfalls For Pretrial Detainees, Ashley Mullen

Cornell Law Library Prize for Exemplary Student Research Papers

California’s bail system not only infringes on individual rights, but also exacerbates a cobweb criminal justice system. The In re Humphrey court framed the issue perfectly when it stated that the problem with the bail system stems “from the enduring unwillingness of our society, including the courts, to correct a deformity in our criminal justice system that close observers have long considered a blight on the system.” California sought to rectify this “deformity” of a wealth-based bail system by passing SB 10 (the California Money Bail Reform Act of 2017).

This Note addresses the arguments that will likely be ...


Noncitizens In The U.S. Military: Navigating National Security Concerns And Recruitment Needs, Muzaffar Chishti, Austin Rose, Stephen W. Yale-Loehr May 2019

Noncitizens In The U.S. Military: Navigating National Security Concerns And Recruitment Needs, Muzaffar Chishti, Austin Rose, Stephen W. Yale-Loehr

Cornell Law Faculty Publications

Foreign nationals have served in the U.S. military throughout American history. Indeed, in many chapters in U.S. history, they have been encouraged to serve with the promise of expedited avenues for naturalization. However, in recent years, noncitizens have faced increasing hurdles to serving their new country. Citing national security concerns, Congress and the U.S. Department of Defense (DOD) have introduced a series of policies that significantly increase the vetting requirements for noncitizen military recruits and modify the processes by which they are trained and given a chance to naturalize. These new policies have limited the enlistment of ...


Bone Crusher 2.0: The Fourth Annual Greg Lastowka Memorial Lecture, James Grimmelmann Apr 2019

Bone Crusher 2.0: The Fourth Annual Greg Lastowka Memorial Lecture, James Grimmelmann

Cornell Law Faculty Publications

No abstract provided.


Teaching Students To Use Feedback To Improve Their Legal-Writing Skills, Lara Gelbwasser Freed, Joel Atlas Apr 2019

Teaching Students To Use Feedback To Improve Their Legal-Writing Skills, Lara Gelbwasser Freed, Joel Atlas

Cornell Law Faculty Publications

In an age in which writing-software programs tout formative feedback on student papers and advertise clear and compelling sentences, the roles of professor and student in the assessment and outcome-achievement process may appear passive, or even supplanted. Using feedback to improve learning, however, requires both professor and student to play active roles. In legal education, law professors are tasked with identifying and assessing learning outcomes. And much has been written about these tasks as they relate to both doctrinal and legal-writing courses. But less attention has been devoted to law students’ role in responding to feedback on their writing and ...


The Silliness Of Magical Realism, Kevin M. Clermont Apr 2019

The Silliness Of Magical Realism, Kevin M. Clermont

Cornell Law Faculty Publications

Relative plausibility, even after countless explanatory articles, remains an underdeveloped model bereft of underlying theory. Multivalent logic, a fully developed and accepted system of logic, comes to the same endpoint as relative plausibility. Multivalent logic would thus provide the missing theory, while it would resolve all the old problems of using traditional probability theory to explain the standards of proof as well as the new problems raised by the relative plausibility model. For example, multivalent logic resolves the infamous ‘conjunction paradox’ that traditional probability creates for itself, and which relative plausibility tries to sweep under the rug.

Yet Professors Allen ...


Removals To Somalia In Light Of The Convention Against Torture: Recent Evidence From Somali Bantu Deportees, Daniel J. Van Lehman, Estelle M. Mckee Apr 2019

Removals To Somalia In Light Of The Convention Against Torture: Recent Evidence From Somali Bantu Deportees, Daniel J. Van Lehman, Estelle M. Mckee

Cornell Law Faculty Publications

This paper presents the results of a survey of Somali Bantu deported from the United States from 2016 to 2018, to determine whether they were subjected to torture upon arrival in Somalia. Of the 20 deportees interviewed, 55 percent suffered torture at least once, with the highest percentage—66.7 percent—experienced by individuals deported in 2018. The abuse, which included kidnapping, stabbings, and beatings with truncheons and whips, meets the definition of torture under Article 3 of the Convention Against Torture. Individuals were intentionally subjected to severe pain and suffering for an unlawful purpose: ransom. Further, most of the ...


Abstention At The Border, Maggie Gardner Mar 2019

Abstention At The Border, Maggie Gardner

Cornell Law Faculty Publications

The lower federal courts have been invoking “international comity abstention” to solve a range of problems in cross-border cases, using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s recent reemphasis on the federal judiciary’s obligation to exercise congressionally granted jurisdiction. Indeed, loose applications of “international comity abstention” risk undermining not only the expressed ...


Regulatory Takings And The Constitutionality Of Commercial Rent Regulation In New York City, Henry Topper Jan 2019

Regulatory Takings And The Constitutionality Of Commercial Rent Regulation In New York City, Henry Topper

Cornell Law Library Prize for Exemplary Student Research Papers

In recent years, the plight of small businesses in New York City has become a contentious topic. Although the city and its current mayoral administration share a long-standing commitment to affordable housing, the city’s small businesses—an integral and defining feature of the urban landscape—have suffered immensely. In the past decade, local establishments have largely given way to a homogeneous landscape of empty storefronts and national chain stores.The loss of local busi- ness occurs with such staggering frequency that there is an entire thriving blog subculture documenting their “vanishing” and the Center for an Urban Future publishes ...


Listeners' Choices, James Grimmelmann Jan 2019

Listeners' Choices, James Grimmelmann

Cornell Law Faculty Publications

Speech is a matching problem. Speakers choose listeners, and listeners choose speakers. When their choices conflict, law often decides who speaks to whom. The pattern is clear: First Amendment doctrine consistently honors listeners' choices for speech. When willing and unwilling listeners' choices conflict, willing listeners win. And when competing speakers' choices conflict, listeners' choices break the tie. This Essay provides a theoretical framework for analyzing speech problems in terms of speakers' and listeners' choices, an argument for the centrality of listener choice to any coherent theory of free speech, and supporting examples from First Amendment caselaw.


Constitutional Maturity, Or Reading Weber In The Age Of Trump, Josh Chafetz Jan 2019

Constitutional Maturity, Or Reading Weber In The Age Of Trump, Josh Chafetz

Cornell Law Faculty Publications

Anxiety abounds about the state of American constitutional democracy in “the age of Trump.” A wide range of commentators have raised serious and profound questions about the resilience of our political institutions and the capacity of our current political leadership.

This Essay, written for a Constitutional Commentary symposium on “Constitutional Law in the Trump Era,” attempts to get a handle on that anxiety by taking a step back and viewing our contemporary situation through a broader lens—a lens crafted in a different time and place, but responsive to a related set of political questions.

In particular, this Essay turns ...


Accounting For Awards: An Examination Of Juror Reasoning Behind Pain And Suffering Damage Award Decisions, Krystia Reed, Valerie P. Hans, Valerie F. Reyna Jan 2019

Accounting For Awards: An Examination Of Juror Reasoning Behind Pain And Suffering Damage Award Decisions, Krystia Reed, Valerie P. Hans, Valerie F. Reyna

Cornell Law Faculty Publications

What do civil jurors think about when they are asked to make damage award decisions? Given the secrecy of the jury deliberation process, often we are unaware of jurors' thought processes. This Article presents the results from three studies in which mock jurors explained the reasoning behind their damage awards for pain and suffering. We highlight the most common explanations and distinguish between reasons justifying high and low pain and suffering awards. We conclude with a discussion for what this means for attorneys during trial.


Gains, Losses, And Judges: Framing And The Judiciary, Jeffrey J. Rachlinski, Andrew J. Wistrich Dec 2018

Gains, Losses, And Judges: Framing And The Judiciary, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Losses hurt more than foregone gains-an asymmetry that psychologists call "loss aversion." Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people's preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are so ...


Trade And Development In An Era Of Multipolarity And Reterritorialization, Chantal Thomas Nov 2018

Trade And Development In An Era Of Multipolarity And Reterritorialization, Chantal Thomas

Cornell Law Faculty Publications

This essay will consider two phenomena emergent within international trade law and policy: multipolarity (the emergence of new global powers alongside existing hegemons) and reterritorialization (the rise, sometimes in quite virulent form, of economic nationalism as a basis for asserting State controls over, and barriers to, cross-border trade). These new dynamics present serious challenges and dangers. This essay will consider whether they might also create opportunities for reshaping the international economic order to be more supportive of the longstanding concerns of developing States. In doing so, the essay will elucidate key aspects of both the global political economy and the ...


Congressional Power To Strip State Courts Of Jurisdiction, Michael C. Dorf Nov 2018

Congressional Power To Strip State Courts Of Jurisdiction, Michael C. Dorf

Cornell Law Faculty Publications

The very substantial literature on the scope of congressional power to strip courts of jurisdiction contains a gap: it does not discuss the source of the affirmative power of Congress to strip state courts of their jurisdiction. Laws granting exclusive federal court jurisdiction over some category of cases are necessary and proper to the exercise of the power to ordain and establish lower federal courts, but what power does Congress exercise when it strips both state and federal courts of jurisdiction? The answer depends on the nature of the case. In stripping all courts of the power to hear federal ...


A Structural Approach To Case Synthesis, Fact Application, And Persuasive Framing Of The Law, Lara Gelbwasser Freed, Joel Atlas Oct 2018

A Structural Approach To Case Synthesis, Fact Application, And Persuasive Framing Of The Law, Lara Gelbwasser Freed, Joel Atlas

Cornell Law Faculty Publications

Lawyering-skills courses, although typically writing-focused, address a wide array of topics. Indeed, to prepare an effective legal document, students must not only write well but analyze well. And, although teaching the pure-writing aspects of the course is certainly a challenge, teaching the analysis-related skills is often the most difficult.

Among the thorniest of these skills are synthesizing cases, applying facts, and persuasively framing the law. Professors struggle to teach these skills, and students consistently struggle to understand and implement them. To lighten the burden for both professors and students, we have approached these skills structurally and, in doing so, have ...


Economic Rationality And Ethical Values In Design-Defect Analysis: The Trolley Problem And Autonomous Vehicles, W. Bradley Wendel Oct 2018

Economic Rationality And Ethical Values In Design-Defect Analysis: The Trolley Problem And Autonomous Vehicles, W. Bradley Wendel

Cornell Law Faculty Publications

The trolley problem is a well-known thought experiment in moral philosophy, used to explore issues such as rights, deontological reasons, and intention and the doctrine of double effect. Recently it has featured prominently in popular discussions of decision making by autonomous vehicle systems. For example, a Mercedes-Benz executive stated that, if faced with the choice between running over a child that had unexpectedly darted into the road and steering suddenly, causing a rollover accident that would kill the driver, an automated Mercedes would opt to kill the child. This paper considers not the ethical issues raised by such dilemmas, but ...