Law Commons^™

"Out, Damned [Metadata]!", Emily Shaw

Cornell Law School J.D. Student Research Papers

We live in exciting times; technology is evolving quickly. The legal profession, however, has a history of begrudging and delayed acceptance of new technology. Attorneys may be slow to learn new tricks, but when it comes to metadata, the usual reactionary behavior could be harmful to clients. It is imperative that attorneys understand the ethical and evidentiary issues that arise when metadata is disclosed, mishandled, discovered, or destroyed. This paper explores these issues and recommends best practices to avoid inadvertent disclosures and ethical violations. The structure of this paper is as follows: first, metadata is defined and explained. Second, I …

Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe

Cornell Law Faculty Publications

When should a constitutional democracy allow private associations to discriminate? That question has become prominent once again, not only in the United States but abroad as well. John Inazu provides a provocative answer in his impressive Article, The Four Freedoms and the Future of Religious Liberty. According to his proposal, “strong pluralism,” associations should have a constitutional right to limit membership on any ground, including race. Strong pluralism articulates only three limits: It does not apply to the government, to commercial entities, or to monopolistic groups. In this Response, I raise four questions about Four Freedoms. First, I ask why …

What's It Worth? Jury Damage Awards As Community Judgments, Valerie P. Hans

Cornell Law Faculty Publications

No abstract provided.

Property's Ends: The Publicness Of Private Law Values, Gregory S. Alexander

Cornell Law Faculty Publications

Property theorists commonly suppose that property has as its ends certain private values, such as individual autonomy and personal security. This Essay contends that property’s real end is human flourishing, that is, living a life that is as fulfilling as possible. Human flourishing, although property’s ultimate end, is neither monistic nor simple. Rather, it is inclusive and comprises multiple values. Those values, the content of human flourishing, derives, at least in part, from an understanding of the sorts of beings we are―social and political. A consequence of this conception of the human condition is that the values that constitute human …

Paying For Risk: Bankers, Compensation, And Competition, Simone M. Sepe, Charles K. Whitehead

Cornell Law Faculty Working Papers

Efforts to control bank risk address the wrong problem in the wrong way. They presume that the financial crisis was caused by CEOs who failed to super­vise risk-taking employees. The responses focus on exe­cutive pay, believing that exe­cu­tives will bring non-execu­tives into line—using incen­­­­tives to manage risk-taking—once their own pay is regu­lated. What they over­look is the effect on non-executive pay of the com­pe­­ti­­tion for talent. Even if exe­­cu­tive pay is regu­lated, and exe­cu­tives act in the bank’s best interests, they will still be trapped into providing incentives that encourage risk-taking by non-executives due to the negative exter­nality that arises …

Speech Engines, James Grimmelmann

Cornell Law Faculty Publications

Academic and regulatory debates about Google are dominated by two opposing theories of what search engines are and how law should treat them. Some describe search engines as passive, neutral conduits for websites’ speech; others describe them as active, opinionated editors: speakers in their own right. The conduit and editor theories give dramatically different policy prescriptions in areas ranging from antitrust to copyright. But they both systematically discount search users’ agency, regarding users merely as passive audiences.

A better theory is that search engines are not primarily conduits or editors, but advisors. They help users achieve their diverse and individualized …

The Unexonerated: Factually Innocent Defendants Who Plead Guilty, John H. Blume, Rebecca K. Helm

Cornell Law Faculty Working Papers

Several recent high profile cases, including the case of the West Memphis Three, have revealed (again), that factually innocent defendants do plead guilty. And, more disturbingly, in many of the cases, the defendant’s innocence is known, or at least highly suspected, at the time the plea is entered. Innocent defendants plead guilty most often, but not always, in three sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their …

Lawyers And Fools: Lawyer-Directors In Public Corporations, Lubomir P. Litov, Simone M. Sepe, Charles K. Whitehead

Cornell Law Faculty Publications

The accepted wisdom—that a lawyer who becomes a corporate director has a fool for a client—is outdated. The benefits of lawyer-directors in today’s world significantly outweigh the costs. Beyond monitoring, they help manage litigation and regulation, as well as structure compensation to align CEO and shareholder interests. The results have been an average 9.5% increase in firm value and an almost doubling in the percentage of public companies with lawyer-directors.

This Article is the first to analyze the rise of lawyer-directors. It makes a variety of other empirical contributions, each of which is statistically significant and large in magnitude. First, …

Five Steps To Successfully Developing A Law Practice Technology Course, Femi Cadmus

Cornell Law Librarians' Publications

No abstract provided.

Victim Gender And The Death Penalty, Caisa Elizabeth Royer, Amelia Courtney Hritz, Valerie P. Hans, Theodore Eisenberg, Martin T. Wells, John H. Blume, Sheri Lynn Johnson

Cornell Law Faculty Publications

Previous research suggests that cases involving female victims are more likely to result in death sentences. The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware. Death was sought much more for murders of either male or female white victims compared to murders of black male victims. Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases. The presence of sexual victimization, the method of killing, the relationship between the …

“Private” Means To “Public” Ends: Governments As Market Actors, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Publications

Many people recognize that governments can play salutary roles in relation to markets by (a) “overseeing” market behavior from “above,” or (b) supplying foundational “rules of the game” from “below.” It is probably no accident that these widely recognized roles also sit comfortably with traditional conceptions of government and market, pursuant to which people tend categorically to distinguish between “public” and “private” spheres of activity.

There is a third form of government action that receives less attention than forms (a) and (b), however, possibly owing in part to its straddling the traditional public/private divide. We call it the “government as …

The Value Of Words: Narrative As Evidence In Policymaking, Dmitry Epstein, Josiah Heidt, Cynthia R. Farina

Cornell Law Faculty Publications

Policymakers today rely primarily on statistical, financial, and other forms of technical data as their basis for decision-making. Yet, there is a potentially underestimated value in substantive reflections of the members of the public who will be affected by a particular piece of regulation. We discuss the value of narratives as input in the policy making process, based on our experience with Regulation Room–a product of an interdisciplinary initiative using innovative web technologies in real-time online experimentation. We describe professional policymakers and professional commenters as a community of practice that has limited shared repertoire with the lay members of the …

Unaccountable Midnight Rulemaking? A Normatively Informative Assessment, Edward H. Stiglitz

Cornell Law Faculty Publications

Under a common view, the administrative state inherits democratic legitimacy from the President, an individual who is envisioned both to control administrative agencies and to be electorally accountable. Presidents' administrations continue issuing rules, however, even after Presidents lose elections. Conventional wisdom holds that Presidents use the "midnight" period of their administrations-the period between the election and the inauguration of the next President-to issue unpopular and controversial rules. Many regard this midnight regulatory activity as democratically illegitimate. Yet we have scant evidence that presidential administrations in fact issue controversial or unpopular rules during the midnight period. In this Article, I examine …

Preliberal Autonomy And Postliberal Finance, Robert C. Hockett

Cornell Law Faculty Publications

Even American Founders whose views diverged as dramatically as those of Jefferson and Hamilton shared a view of finance and of enterprise that one might call “productive republican.” Pursuant to this vision, financial and other forms of market activity are instrumentally rather than intrinsically good — and for that very reason are of interest to the public qua public rather than to the public qua aggregate of “private” individuals. Citizens are best left free to engage in financial and other market activities, per this understanding, only insofar as these are consistent with sustainable collective republic-making. And the republic — the …

Philosophy Of Law: Reply To Critics, Andrei Marmor

Cornell Law Faculty Publications

The author addresses issues raised by commentators on his book, Philosophy of Law (2011).

The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe

Cornell Law Faculty Publications

In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and focuses instead on what the stakes might be, should it turn out to be correct. It concludes that the consequences would not be as severe as many people fear.

Why Motives Matter: Reframing The Crowding Out Effect Of Legal Incentives, Emad H. Atiq

Cornell Law Faculty Publications

Legal rules and regulations are routinely rationalized by appeal to the incentives they create. This Note examines an important but misunderstood fact about incentives - namely, that they often "crowd out" the natural motivations that citizens have to engage in socially valued behavior, such as a sense of civic duty, a commitment to personal growth, and charity towards others. The "crowding out effect" of incentives has traditionally been viewed as problematic because of cases where it renders incentives counter-productive - when fear of legal sanction or desire for financial reward substitutes for other forms of motivation in agents, this often …

Religious Exceptionalism And Human Rights, Laura S. Underkuffler

Cornell Law Faculty Publications

The liberal-democratic governmental compact assures that citizenship, political power, and civic participation in all of its forms will be afforded to all citizens on an equal basis. In particular, simple identity—as a presumptive matter—cannot be the basis for the denial of human rights. It is on this simple yet elegant principle that all civil-rights laws are founded.

Freedom of religion presents a particularly complex problem in this context. On the one hand, it is—itself—a universally recognized member of the human rights family, and is protected under civil-rights laws. On the other hand, it is— because of its possible invocation by …

Rethinking Sovereign Debt: Politics, Reputation, And Legitimacy In Modern Finance, Odette Lienau

Cornell Law Faculty Publications

Conventional wisdom holds that all nations must repay debt. Regardless of the legitimacy of the regime that signs the contract, a country that fails to honor its loan obligations damages its reputation, inviting still greater problems down the road. Yet difficult dilemmas arise from this assumption. Should today's South Africa be responsible for apartheid-era debt? Is it reasonable to tether postwar Iraq with Saddam Hussein's excesses? Rethinking Sovereign Debt is a probing historical analysis of how sovereign debt continuity - the rule that nations should repay loans even after a major regime change or expect reputational consequences - became the …

Exactions Creep, Lee Anne Fennell, Eduardo M. PeñAlver

Cornell Law Faculty Publications

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v. St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast …

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 …

Kiobel And The Law Of Nations, Zachary D. Clopton

Cornell Law Faculty Publications

Since 1789, the Alien Tort Statute (ATS) has provided federal court jurisdiction for tort suits by aliens for violations of the law of nations. Though debate certainly exists about the method by which ATS-appropriate torts are identified, the Supreme Court has acknowledged that the substantive content of ATS causes of action is derived from the law of nations. In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court justices addressed not the substance of ATS cases but the reach of that statute.

At least at the time of the Judiciary Act of 1789, the law of nations included not only …

Meeting The Challenges Of Instructing International Law Graduate Students In Legal Research, Nina E. Scholtz, Femi Cadmus

Cornell Law Librarians' Publications

Teaching international LL.M. students legal research offers its own peculiar challenges. The brevity of the LL.M. program and the limited time available for thoroughly introducing basic research concepts have made it particularly difficult, but the innovative and creative methods of instruction highlighted in this article have provided good solutions.

Legal Education In An Era Of Globalisation And The Challenge Of Development, Muna Ndulo

Cornell Law Faculty Publications

The article examines the challenges legal education faces as a result of globalisation with specific reference to African law schools. It considers the challenges and ways of meeting them. The practice of law in a globalised world requires a body of knowledge which is both complex and interdisciplinary. It requires the acquisition of a broad range of new skills and techniques of solving legal problems. To equip lawyers with the needed skills to practise law in a globalised world will require changes in the traditional law school curriculum. It will require a curriculum which trains lawyers for the practice of …

Materializing Citizenship: Finance In A Producers' Republic, Robert C. Hockett

Cornell Law Faculty Publications

This invited essay critically assesses a movement of which I consider myself to be part – the movement to “redemocratize” financial institutions in a manner that restores, to non-wealthy citizens, access to basic financial services comparable to those enjoyed by wealthy citizens. I argue that while financial redemocratization of this sort is necessary to the larger project from which it draws most of its meaning – viz that of redemocratizing access to the resources requisite to productive enterprise and meaningful citizenship more generally – it is far from sufficient to this task. We must therefore take special care not to …

Is Japan Ready To Legalize Same-Sex Marriage?, Yuki Arai

Cornell Law School LL.M. Student Research Papers

Marriage is one of the most significant stages in one’s life. For many decades, gays and lesbians have been excluded from the legal institution of marriage solely because of their sexual orientation. However, the situation concerning same-sex marriage has drastically changed in many societies including the U.S. in the past several years. This recent wave of the opening of same-sex marriage has yet to reach my home country, Japan. In Japanese society where no religion opposing to same-sex activity is influential, gays and lesbians have not been persecuted criminally or religiously, which caused the absence of gay and lesbian rights …

Sex-Selective Abortion Bans Are Not Associated With Changes In Sex Ratios At Birth Among Asian Populations In Illinois And Pennsylvania, Arindam Nandi, Sital Kalantry, Brian Citro

Cornell Law Faculty Publications

Legal prohibitions on sex-selective abortions are proliferating in the United States. Eight state legislatures have banned abortions sought on the basis of the sex of the fetus, 21 states have considered such laws since 2009, and a similar bill is pending in U.S. Congress. These laws have been introduced and enacted without any empirical data about their impact or effectiveness. Prior studies of U.S. Census data found sex ratios among foreign-born Chinese, Korean and Indian immigrants were skewed in favor of boys, but only in families where there were already one or two girls. Using the variation in the timing …

Replacing The Presumption Against Extraterritoriality, Zachary D. Clopton

Cornell Law Faculty Publications

The presumption against extraterritoriality tells courts to read a territorial limit into statutes that are ambiguous about their geographic reach. This canon of construction has deep roots in Anglo-American law, and the U.S. Supreme Court recently reaffirmed this principle of statutory interpretation in Morrison v. National Australia Bank and Kiobel v. Royal Dutch Petroleum. Yet as explained in this Article, none of the purported justifications for the presumption against extraterritoriality hold water. Older decisions look to international law or conflict-of-laws principles, but these bodies of law have changed such that they no longer support a territorial rule. Modern courts suggest …

Juries, Lay Judges, And Trials, Toby S. Goldbach, Valerie P. Hans

Cornell Law Faculty Working Papers

“Juries, Lay Judges, and Trials” describes the widespread practice of including ordinary citizens as legal decision makers in the criminal trial. In some countries, lay persons serve as jurors and determine the guilt and occasionally the punishment of the accused. In others, citizens decide cases together with professional judges in mixed decision-making bodies. What is more, a number of countries have introduced or reintroduced systems employing juries or lay judges, often as part of comprehensive reform in emerging democracies. Becoming familiar with the job of the juror or lay citizen in a criminal trial is thus essential for understanding contemporary …