Law Commons^™

How Much Justice Hangs In The Balance? A New Look At Hung Jury Rates, Paula Hannaford-Agor, Valerie P. Hans, G. Thomas Munsterman

Cornell Law Faculty Publications

Reports of apparent increases in the number of hung juries in some jurisdictions have caused concern among policy makers. A 1995 report by the California District Attorneys Association cited hung jury rates in 1994 that exceeded 15 percent in some jurisdictions (the rates varied from 3 to 23 percent across the nine counties for which data were available). In 1996, the District of Columbia Superior Court reported a higher-than-expected hung jury rate of 11 percent. Why juries hang at these rates isn't clear, but some commentators have claimed that hung juries are the product of eccentric or nullifying holdout jurors …

Public Values And Professional Responsibility, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

The Unfulfilled Promise Of Promissory Estoppel In The Employment Setting, Robert A. Hillman

Cornell Law Faculty Publications

Although the theory of promissory estoppel enforces promises that induce reasonable detrimental reliance, this article reveals the theory's colossal failure in the non-union employment setting. This conclusion is based on an examination of all of the reported decisions in the United States that discussed promissory estoppel over a two-year period in the mid 1990's. During this period, employees won only 4.23 percent of employment promissory estoppel cases decided on the merits. At first blush, this is very surprising because employers, through their communications, seek to create the expectation of a stable, secure work environment and employees, because of their lack …

Does The "Good Governance Policy" Of The International Financial Institutions Privilege Markets At The Expense Of Democracy?, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

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 …

Models And Documents: Artefacts Of International Legal Knowledge, Annelise Riles

Cornell Law Faculty Publications

This article draws upon one year of ethnographic research at United Nations conferences to challenge some common academic assumptions about what it means to "do" international law. The article compares the work of academic international lawyers - founded in making models of an international system - to the work of practitioners - exemplified by the work of making documents, and demonstrates the particular, peculiar nature of each kind of knowledge, from the point of view of the observer. This leads to a set of conclusions concerning how an academic study of international law influenced by an appreciation of the particularity …

In Praise Of Justice Blackmun: (Corrected) Typos And All, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Formal Legal Truth And Substantive Truth In Judicial Fact-Finding – Their Justified Divergence In Some Particular Cases, Robert S. Summers

Cornell Law Faculty Publications

Truth is a fundamental objective of adjudicative processes; ideally, ‘substantive’ as distinct from ‘formal legal’ truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. ‘Jury nullification’ and ‘jury equity’. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.

Punishment As Atonement, Stephen P. Garvey

Cornell Law Faculty Publications

How would punishment work in an ideal community, one in which the members of the community identify with one another? In this article, Professor Stephen Garvey argues that punishment in such a community would be understood as a form of secular penance and would form part of the process by which the wrongdoer atones for his wrongdoing. Compared to this account of punishment, which Garvey calls "punishment as atonement," other accounts fall short. The older and dominant approaches of utilitarianism and retributivism offer justifications for punishment that ignore the goal of atonement. Newer approaches, restorativism and libertarianism, recognize the importance …

The Internet: "Full And Unfettered Access" To Law -- Some Implications, Peter W. Martin

Cornell Law Faculty Publications

No abstract provided.

The "New Conservatism" In Contract Law And The Process Of Legal Change, Robert A. Hillman

Cornell Law Faculty Publications

No abstract provided.

Insane Fear: The Discriminatory Category Of "Mentally Ill And Dangerous", Sherry F. Colb

Cornell Law Faculty Publications

This article considers the constitutional and moral implications of the distinction the law draws between different classes of dangerous people, depending upon their status as mentally ill or mentally well. Those who are mentally well benefit from the right to freedom from incarceration unless and until they commit a crime. By contrast, dangerous people who are mentally ill are subject to potentially indefinite "civil" preemptive confinement.

In a relatively recent case, Kansas v. Hendricks, the United States Supreme Court upheld the post-prison civil confinement of Leroy Hendricks, a man who had served prison time after pleading guilty to child molestation. …

To The Yukon And Beyond: Local Laborers In A Global Market, Katherine V.W. Stone

Cornell Law Faculty Publications

This Article explores the possibilities for effective protection of labor rights in the emerging global labor market. It explores existing forms of transnational labor regulation, including both hard regulation, i.e., regulation by state-centered institutions, and soft regulation, i.e., regulation through private actors responding to market forces. The author finds that existing regulatory approaches are inadequate to ensure that the global marketplace will offer adequate labor standards to its global workforce. She proposes new approaches to global labor regulation, approaches that blend hard and soft law by reshaping market forces and embedding them in a regulatory framework that is protective of …

Digital Legal Information: Ensuring Access To The "Official" Word Of The Law, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

The Principles Of The Rule Of Law, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Agentic And Conscientic Decisions In Law: Death And Other Cases, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Religion And Democracy, Steven H. Shiffrin

Cornell Law Faculty Publications

Should citizens armed with religious reasons for public policy outcomes present those reasons in the public forum or otherwise rely on them in making decisions? Those questions have produced a flurry of scholarship, both within and outside of the law. Moreover, as Kent Greenawalt's work richly demonstrates, these related questions raise many more questions still. Do the answers to those questions differ, for example, if the citizen is a judge, a legislator, a columnist, a religious leader, or a "mere" voter? Are some religious reasons acceptable for presentation in a public forum, but not others?

If one holds a constricted …

Transfer Of Technology In The Contemporary International Order, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Create Your Own Constitutional Theory, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

The Publicness Of Private Land Use Controls, Gregory S. Alexander

Cornell Law Faculty Publications

Real burdens, or land-use "servitudes" as they are called in the United States, are usually thought of as strictly private legal devices. Yet in many countries, including the United States, they serve public functions. They are used to constitute residential community associations. These institutions differ from traditional civil society institutions in that they are designed to provide public goods in much the same way as cities do. Generally, they allocate public goods more efficiently than do local governments, which are unable to respond to differences in preferences for various goods and services within given political boundaries. At the same time, …

Shopping For Judges: An Empirical Analysis Of Venue Choice In Large Chapter 11 Reorganizations, Theodore Eisenberg, Lynn M. Lopucki

Cornell Law Faculty Publications

For almost two decades, an embarrassing pattern of forum shopping has been developing in the highly visible world of big-case bankruptcy reorganization. Forum shopping--defined here as the act of filing in a court that does not serve the geographical area of the debtor's corporate headquarters--now occurs in more than half of all big-case bankruptcies. Two jurisdictions have attracted most of the forum shoppers. During the 1980s, when a large portion of the shopping was to New York, the lawyers involved asserted that New York was a natural venue because of its role as the country's financial capital and because so …

Praxis And Pedagogy: Domestic Violence, Cynthia Grant Bowman, Eden Kusmiersky

Cornell Law Faculty Publications

No abstract provided.

Product Design Liability In Orgeon And The New Restatement, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Regulating In Foresight Versus Judging Liability In Hindsight: The Case Of Tobacco, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Potentially dangerous products, such as cigarettes, can be regulated through ex post liability or ex ante regulation. Both systems should reach the same result. In practice, however, cognitive biases that influence the liability system can produce incentives to take an excess of precautions. In particular, because people tend to see past events as more predictable than they really were, judges and juries will tend to find defendants who took reasonable care negligent or even reckless. As a consequence of these biases, a liability system can be more expensive than a regulatory system, both to potential defendants and to society. Cognitive …

Should Progressives Support The Constitution?, Steven H. Shiffrin

Cornell Law Faculty Publications

In the closing pages of Constitutional Faith Sanford Levinson asks himself whether he would have signed the Constitution in Philadelphia, warts and all. He concludes that he would have joined the signers primarily because of a progressive faith that the evils of the Constitution would erode with time. So too, Levinson's frequent co-author J.M. Balkin, asks in the midst of a symposium on fidelity in constitutional theory, whether the present Constitution deserves our fidelity. Balkin does not deny the presence of sanctioned evil under our Constitution. He suggests, for example, that the Constitution fails to protect the poor. In so …

Legal Rules And Social Reform, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

The Employment Contract, Ian Ayres, Stewart J. Schwab

Cornell Law Faculty Publications

This article consists of Professors Ian Ayres and Stewart Schwab 's presentation given at the Economic Analysis of State Employment Law Issues Symposium. Following the presentation, audience members and the presenters participated in a discussion concerning employment contracts. The Journal staff and Professors Ayres and Schwab compiled and edited some of these questions and responses.

Judicial Politics, Death Penalty Appeals, And Case Selection: An Empirical Study, John H. Blume, Theodore Eisenberg

Cornell Law Faculty Publications

Several studies try to explain case outcomes based on the politics of judicial selection methods. Scholars usually hypothesize that judges selected by partisan popular elections are subject to greater political pressure in deciding cases than are other judges. No class of cases seems more amenable to such analysis than death penalty cases. No study, however, accounts both for judicial politics and case selection, the process through which cases are selected for death penalty litigation. Yet, the case selection process cannot be ignored because it yields a set of cases for adjudication that is far from a random selection of cases. …

Rustic Justice: Community And Coercion Under The Federal Arbitration Act, Katherine V.W. Stone

Cornell Law Faculty Publications

Arbitration clauses are appearing in a wide variety of consumer transactions, including routine product purchase forms, residential leases, housing association charters, medical consent forms, banking and credit card applications, and employment handbooks. In the past fifteen years, the Supreme Court has reinterpreted the Federal Arbitration Act (FAA) so as to grant tremendous deference to private arbitral tribunals. By doing so, it has altered the landscape of civil litigation, taking many consumer claims out of the legal system and relegating them to private tribunals. In this Article, Professor Stone assesses the recent trend toward the privatization of civil justice in light …

Undergraduate Education In Legal Psychology, Solomon F. Fulero, Edith Greene, Valerie P. Hans, Michael T. Nietzel, Mark A. Small, Lawrence S. Wrightsman

Cornell Law Faculty Publications

The purpose of this article is to describe ways that legal psychology can be introduced into the undergraduate curriculum. The extent to which undergraduate "psychology and law" courses are currently part of the curriculum is described, and a model is proposed for coursework in a Psychology Department that might adequately reflect coverage of the legal area. The role of legal psychology in interdisciplinary programs and Criminal Justice departments is discussed. Sources for teaching aids and curricular materials are described.