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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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


The Constitutional Politics Heller Launched, Michael C. Dorf Sep 2018

The Constitutional Politics Heller Launched, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.


A Cooperative Federalism Approach To Shareholder Arbitration, Zachary D. Clopton, Verity Winship Jul 2018

A Cooperative Federalism Approach To Shareholder Arbitration, Zachary D. Clopton, Verity Winship

Cornell Law Faculty Publications

Arbitration dominates private law across an ever-expanding range of fields. Its latest target, however, may not be a new field as much as a new form: mandatory arbitration provisions built into corporate charters and bylaws. Recent developments in corporate law coupled with signals from the Securities and Exchange Commission suggest that regulators may be newly receptive to shareholder arbitration. What they do next may have dramatic consequences for whether and how corporate and securities laws are enforced.

The debate about the merits of arbitration is well worn, but its application to shareholder claims opens the door to a different set ...


Balanced Judicial Realism In The Service Of Justice: Judge Richard D. Cudahy, Elizabeth Mertz, Cynthia Grant Bowman Jul 2018

Balanced Judicial Realism In The Service Of Justice: Judge Richard D. Cudahy, Elizabeth Mertz, Cynthia Grant Bowman

Cornell Law Faculty Publications

There is a quiet irony to be found in scholarly writings about the judiciary, which often center around high-profile jurists selected as the “great” judges. But there are great judges who do not receive or even want such widespread recognition, and who do not discuss their philosophy of judging—they simply focus on the job in front of them. Judges who operate with humility can often be very quiet about their legacies—brushing the issue off, as if uncomfortable with the attention. Anyone who knew Judge Richard D. Cudahy of the United States Court of Appeals for the Seventh Circuit ...


Truthfulness As An Ethical Form Of Life, W. Bradley Wendel Jul 2018

Truthfulness As An Ethical Form Of Life, W. Bradley Wendel

Cornell Law Faculty Publications

This essay, a contribution to a symposium at Duquesne Law School entitled Resurrecting Truth in American Law and Public Discourse, was inspired by an observation made by Bernard Williams, in his paper “Saint-Just’s Illusion.” Williams noted that the issue of moral objectivity always come back to what to do with disagreement in matters of morality, and what sorts of considerations might lead the other party out of error. And in his book, Truth and Truthfulness, Williams argued (among other things, in a rich and subtle work) that the dispositions of truthfulness cultivated by citizens of a liberal political community ...


What Unconditional Credence In Individual Desert Claims Does Retributivism Require?, Emad H. Atiq Apr 2018

What Unconditional Credence In Individual Desert Claims Does Retributivism Require?, Emad H. Atiq

Cornell Law Faculty Publications

Punishing a person based on low unconditional credence in their deservingness to be punished is consistent with retributivist deontological principles. Negative retributivism absolutely prohibits the intentional or knowing infliction of undeserved harm on individuals identified as undeserving, not the intentional or knowing infliction of risks of undeserved harm on individuals. Meanwhile, the knowing infliction of undeserved harm on some unidentified individuals generates not overriding reasons against punishment, but pro tanto reasons against punishment that are to be weighed against other non-overriding reasons for punishment like crime prevention. The upshot is that uncertainty regarding any identified person’s deservingness to be ...


Diagonal Public Enforcement, Zachary D. Clopton Apr 2018

Diagonal Public Enforcement, Zachary D. Clopton

Cornell Law Faculty Publications

Civics class teaches the traditional mode of law enforcement: The legislature adopts a regulatory statute, and the executive enforces it in the courts. But in an increasingly interconnected world, a nontraditional form of regulatory litigation is possible in which public enforcers from one government enforce laws adopted by a second government in the second government’s courts. That is, one government provides the executive while the second provides the legislature and the judiciary. I call this nontraditional form “diagonal public enforcement.”

Although diagonal public enforcement has escaped systematic study, one can find examples in U.S. courts going back more ...


Article 2 Of The Ucc: Some Thoughts On Success Or Failure In The Twenty-First Century, Robert A. Hillman Apr 2018

Article 2 Of The Ucc: Some Thoughts On Success Or Failure In The Twenty-First Century, Robert A. Hillman

Cornell Law Faculty Publications

The volume of litigation on Uniform Commercial Code Article 2, along with the rise of e-commerce, raises the question of whether Article 2 can succeed in the twenty-first century. There are, of course, many ways to measure success or failure of legislation. One strategy, applied here, is to evaluate Article 2 against the UCC’s ambitious “purposes and policies” of simplifying, clarifying, and modernizing commercial law, supporting commercial practices, and promoting uniformity of the law among the states. In doing so, I ask three questions that help determine when particular sections of Article 2 impede these goals and are ripe ...


The Limits Of Law In The Evaluation Of Mitigating Evidence, Emad H. Atiq, Erin L. Miller Apr 2018

The Limits Of Law In The Evaluation Of Mitigating Evidence, Emad H. Atiq, Erin L. Miller

Cornell Law Faculty Publications

Capital sentencers are constitutionally required to "consider" any mitigating evidence presented by the defense. Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer's consideration or place conditions on when such factors may be considered. We argue that the principle underlying this line of doctrine is broader than courts have so far recognized. A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation ("SED"), such as egregious child abuse or poverty. SED has played a central role in the Court's ...


Procedural Retrenchment And The States, Zachary D. Clopton Apr 2018

Procedural Retrenchment And The States, Zachary D. Clopton

Cornell Law Faculty Publications

Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.

While I have much sympathy for the Court's critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court's decisions to limit court access-and despairing further developments in the age of Trump-we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned ...


Living Apart Together As A “Family Form” Among Persons Of Retirement Age: The Appropriate Family Law Response, Cynthia Grant Bowman Apr 2018

Living Apart Together As A “Family Form” Among Persons Of Retirement Age: The Appropriate Family Law Response, Cynthia Grant Bowman

Cornell Law Faculty Publications

As the Baby Boom generation enters retirement age, patterns of living among older persons are beginning to change. Unlike their predecessors, the Baby Boomers lived through the sexual revolution, divorced more easily and more often, and institutionalized new patterns of coupling, such as cohabitation. As a result, the rate of marriage has declined and the percent of the population classified as “single” has gone up. This age cohort has now moved into the sixty-five-plus group and makes up those we think of as the retirement generation, or the “Third Age” group. As longevity has increased and the divorce rate for ...


Private Wealth And Public Goods: A Case For A National Investment Authority, Robert C. Hockett, Saule T. Omarova Apr 2018

Private Wealth And Public Goods: A Case For A National Investment Authority, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Publications

Much American electoral and policy debate now centers on how best to reignite the nation’s economic dynamism and rebuild its competitive strength. Any such undertaking presents an extraordinary challenge, demanding a correspondingly extraordinary institutional response. This Article proposes precisely such a response. It designs and advocates a new public instrumentality--a National Investment Authority (“NIA”)--charged with the critical task of devising and implementing a comprehensive long-term development strategy for the United States.

Patterned in part after the New Deal-era Reconstruction Finance Corporation, in part after modern sovereign wealth funds, and in part after private equity and venture capital firms ...


Delegating For Trust, Edward H. Stiglitz Feb 2018

Delegating For Trust, Edward H. Stiglitz

Cornell Law Faculty Publications

Courts and legal observers have long been concerned by the scope of authority delegated to administrative agencies. The dominant explanation of delegated authority is that it is necessary to take advantage of administrative agencies' expertise and expansive rulemaking capacity. Though this explanation makes sense in many settings, it falters in many areas and has given rise to a number of longstanding puzzles, such as why Congress does not invest in its own institutional capacity.

Unrecognized in this debate over the puzzles of delegation is that Congress may delegate to take advantage of another distinctive attribute of administrative decisionmaking: the credible ...


Contested Visions: The Value Of Systems Theory For Corporate Law, Tamara Belinfanti, Lynn A. Stout Feb 2018

Contested Visions: The Value Of Systems Theory For Corporate Law, Tamara Belinfanti, Lynn A. Stout

Cornell Law Faculty Publications

Despite the dominant role corporations play in our economy, culture, and politics, the nature and purpose of corporations remains hotly contested. This conflict was brought to the fore in the recent Supreme Court opinions in Citizens United and Hobby Lobby. Although the prevailing narrative for the past quarter-century has been that corporations “belong” to shareholders and should pursue “shareholder value,” support for this approach, which has been justified as essential for managerial accountability, is eroding. It persists today primarily in the form of the argument that corporations should seek “long-term” shareholder value. Yet, as this Article shows, when shareholder value ...


A Pragmatist's View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman Feb 2018

A Pragmatist's View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman

Cornell Law Faculty Publications

This article discusses Professor Nate Oman's excellent new book, "The Dignity of Commerce," which makes an impressive case for how markets can produce "desirable" outcomes for society. In addition to a comprehensive account of what he calls "virtues" of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions.

Oman is not only a fan of markets, but he asserts that markets are the "center" of contract theory, and provide its normative foundation. Elaborating, Oman concludes that "contract law exists primarily to support markets" and that ...


Mdl V. Trump: The Puzzle Of Public Law In Multidistrict Litigation, Andrew D. Bradt, Zachary D. Clopton Jan 2018

Mdl V. Trump: The Puzzle Of Public Law In Multidistrict Litigation, Andrew D. Bradt, Zachary D. Clopton

Cornell Law Faculty Publications

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered — Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some ...


Agency And Insanity, Stephen P. Garvey Jan 2018

Agency And Insanity, Stephen P. Garvey

Cornell Law Faculty Publications

This Article offers an unorthodox theory of insanity. According to the traditional theory, insanity is a cognitive or volitional incapacity arising from a mental disease or defect. As an alternative to the traditional theory, some commentators have proposed that insanity is an especially debilitating form of irrationality. Each of these theories faces fair-minded objections. In contrast to these theories, this Article proposes that a person is insane if and because he lacks a sense of agency. The theory of insanity it defends might therefore be called the lost-agency theory.

According to the lost-agency theory, a person lacks a sense of ...


Common Sense On Standards Of Proof, Kevin M. Clermont Jan 2018

Common Sense On Standards Of Proof, Kevin M. Clermont

Cornell Law Faculty Publications

The law speaks clearly on the standards of proof, but listeners often misunderstand its words. This article tries, with some common sense and a modicum of multivalent logic, to explain how the law expects its standards to be applied, and then to show how the law thereby avoids such complications as the conjunction paradox.

First, in accordance with belief function theory, the factfinder should start at zero belief. Given imperfect evidence, the factfinder will end up retaining a fair amount of uncommitted belief. As evidence comes in, though, the factfinder will form a belief in the truth of the disputed ...


How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen Jan 2018

How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen

Cornell Law Faculty Publications

From the moment Donald Trump was elected President, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed—dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials.

This Article calls attention to that latent instability and, in ...


Legal Vs. Factual Normative Questions & The True Scope Of Ring, Emad H. Atiq Jan 2018

Legal Vs. Factual Normative Questions & The True Scope Of Ring, Emad H. Atiq

Cornell Law Faculty Publications

When is a normative question a question of law rather than a question offact? The short answer, based on common law and constitutional rulings, is: it depends. For example, if the question concerns the fairness of contractual terms, it is a question of law. If it concerns the reasonableness of dangerous risk-taking in a negligence suit, it is a question of fact. If it concerns the obscenity of speech, it was a question of fact prior to the Supreme Court's seminal cases on free speech during the 1970s, but is now treated as law-like. This variance in the case ...


The Brennan Lecture: The Separation Of Powers And The Public, Josh Chafetz Jan 2018

The Brennan Lecture: The Separation Of Powers And The Public, Josh Chafetz

Cornell Law Faculty Publications

No abstract provided.