Law Commons^™

Re-Reading Weber In Law And Development: A Critical Intellectual History Of "Good Governance" Reform, Chantal Thomas

Cornell Law Faculty Publications

The "Weberianism" of the modern age derives from the influence of three theoretical concepts in Weber's work. First, Weber described the development of "logically formal rationality" in governance as central to the rise of Western capitalist democracy. Second, Weber posited that Protestant religious ethics had helped to promote certain economic behaviors associated with contemporary capitalism. Third, Weber identified the rise of bureaucratic governance, as the primary means of realizing logically formal rationality, as distinctly modern.

This essay examines the influence of these basic insights on discourse on legal reform in developing countries. The prioritization of legal and institutional reforms to …

Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Cornell Law Faculty Publications

We conducted a study of contractual practices by well-known firms marketing consumer products, comparing the firms' consumer contracts with contracts the same firms negotiated with business peers. The frequency of arbitration clauses in consumer contracts has been studied before, as has the frequency of arbitration clauses in non-consumer contracts. Our study is the first to compare the use of arbitration clauses within firms, in different contractual contexts.

The results are striking: in our sample, mandatory arbitration clauses appeared in more than three-quarters of consumer contracts and less than one tenth of non-consumer contracts (excluding employment contracts) negotiated by the same …

Pareto Versus Welfare, Robert C. Hockett

Cornell Law Faculty Publications

Many normatively oriented economists, legal academics and other policy analysts appear to be "welfarist" and Paretian to at least moderate degree: They deem positive responsiveness to individual preferences, and satisfaction of one or more of the familiar Pareto criteria, to be reasonably undemanding and desirable attributes of any social welfare function (SWF) employed to formulate social evaluations. Some theorists and analysts go further than moderate welfarism or Paretianism, however: They argue that "the Pareto principle" requires the SWF be responsive to individual preferences alone - a position I label "strict" welfarism - and conclude that all social evaluation should in …

Does Heller Protect A Right To Carry Guns Outside The Home?, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Daniel Defoe And The Written Constitution, Bernadette Meyler

Cornell Law Faculty Publications

Today, as constitutionalism spreads around the globe, it is embodied de rigueur in written documents. Even places that sustained polities for centuries without a written constitution have begun to succumb to the lure of writtenness. America, we think, spawned this worldwide force, inaugurating a radically new form of political organization when it adopted the U.S. Constitution as its foundational text. Yet the notion of the written constitution had, in fact, received an earlier imprimatur from the pen of Daniel Defoe, English novelist, political pamphleteer, and secret agent. Plying his trades in the early eighteenth century, Defoe, now known largely as …

Leaving The House: The Constitutional Status Of Resignation From The House Of Representatives, Josh Chafetz

Cornell Law Faculty Publications

Do members of the House of Representatives have a constitutional right to resign their seats? This Article uses that question as a window onto broader issues about the relationship between legislators and citizens and the respective roles of liberalism and republicanism in the American constitutional order. The Constitution explicitly provides for the resignation of senators, presidents, and vice presidents, but, curiously, it does not say anything about resigning from the House of Representatives. Should we allow the expressio unius interpretive canon to govern and conclude that the inclusion of some resignation provisions implies the impermissibility of resignation when there is …

The Quiet Revolution Revived: Sustainable Design, Land Use Regulation, And The States, Sara C. Bronin

Cornell Law Faculty Publications

Thirty-seven years ago, a book called The Quiet Revolution in Land Use Control argued that states would soon take over localities' long-held power over land use regulation. In the authors' view, this quiet revolution would occur when policymakers and the public recognized that certain problems - like environmental destruction - were too big for localities to handle on their own. Although the quiet revolution has not yet occurred, this Article suggests that it will, and should, occur alongside the ever-growing green building movement. This movement presents practical and ideological challenges to our current system of regulating land use. This Article …

Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Cornell Law Faculty Publications

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear …

Executive Branch Lawyers In A Time Of Terror: The 2008 F.W. Wickwire Memorial Lecture, W. Bradley Wendel

Cornell Law Faculty Publications

This article discusses the ethical responsibilities of the lawyers who advise executive branch officials on the lawfulness of actions taken in the name of national security. To even talk about this subject assumes that there is some distinction between a government that does all within its power to protect its citizens, and one that does all within its lawful power. If there are good normative reasons to care about maintaining this distinction, then we have the key to understanding the ethical responsibilities of government lawyers. The Bush administration took the position that the role of lawyers is to get out …

The Jurisprudence Of Pleading: Rights, Rules, And Conley V. Gibson, Emily Sherwin

Cornell Law Faculty Publications

In 1957, in the case of Conley v. Gibson, the Supreme Court announced a minimal standard for the contents of a complaint under the Federal Rules of Civil Procedure and endorsed what has come to be known as 'notice' pleading. This article, prepared for a symposium on Conley, reviews the debate over pleading requirements that preceded the case. Unlike modern discussions of pleading, which focus on the level of factual specificity required in complaints, the pre-Conley debate was about the legal content of complaints - an question largely forgotten in the years following Conley.

The early twentieth century debate over …

Statins And Adverse Cardiovascular Events In Moderate-Risk Females: A Statistical And Legal Analysis With Implications For Fda Preemption Claims, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

This article presents: (1) meta-analyses of studies of cardioprotection of women and men by statins, including Lipitor (atorvastatin), and (2) a legal analysis of advertising promoting Lipitor as preventing heart attacks. The meta-analyses of primary prevention clinical trials show statistically significant benefits for men but not for women, and a statistically significant difference between men and women. The analyses do not support (1) statin use to reduce heart attacks in women based on extrapolation from men, or (2) approving or advertising statins as reducing heart attacks without qualification in a population that includes many women. The legal analysis raises the …

The Dilemma Of The Criminal Defendant With A Prior Record - Lessons From The Wrongfully Convicted, John H. Blume

Cornell Law Faculty Publications

This article examines challenges the conventional wisdom that an innocent defendants will testify on their own behalf at trial. Data gathered from the cases of persons subsequently exonerated due to DNA evidence demonstrates that factually innocent defendants do not testify on their own behalf at substantially higher rates than criminal defendants generally. Why? The primary reason is that many of these individuals had been previously convicted of a crime, and they did not testify at trial because of the risk that their credibility would be impeached with evidence of the prior record and, despite any limiting instruction the court might …

Like A Nation State, Douglas Kysar, Bernadette A. Meyler

Cornell Law Faculty Publications

Using California's self-consciously internationalist approach to climate change regulation as a primary example, this Article examines constitutional limitations on state foreign affairs activities. In particular, by focusing on the prospect of California's establishment of a greenhouse gas (GHG) emissions trading system and its eventual linkage with comparable systems in Europe and elsewhere, this Article demonstrates that certain constitutional objections to extrajurisdictional linkage of state GHG emissions trading systems and the response that these objections necessitate may be more complicated than previously anticipated. First, successfully combatting the Bush Administration's potential claim that state-level climate change activities interfere with a federal executive …

Summary Judgment Rates Over Time, Across Case Categories, And Across Districts: An Empirical Study Of Three Large Federal Districts, Theodore Eisenberg, Charlotte Lanvers

Cornell Law Faculty Publications

Prior research on summary judgment hypothesizes a substantial increase in summary judgment rates after a trilogy of Supreme Court cases in 1986 and a disproportionate adverse effect of summary judgment on civil rights cases. This article analyzes summary judgment rates in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA), for two time periods, 1980-81 and 2001-02. It also analyzes summary judgment rates for the Central District of California (CDCA) for 1980-81 and for other civil rights cases in the CDCA in 1975-76. The combined sample consists of over 5,000 cases. The three-district sample for 1980-81 …

An Overview Of Brazilian Corporate Governance, Bernard S. Black, Antonio Gledson De Carvalho, Érica Gorga

Cornell Law Faculty Publications

We provide the first detailed picture of firm-level corporate governance practices in an emerging market. We report on the corporate governance practices of Brazilian public companies, based primarily on an extensive 2005 survey of 116 companies. Most firms have a controlling shareholder or group. Board independence is an area of weakness. The boards of most Brazilian private firms are comprised entirely or almost entirely of insiders or representatives of the controlling family or group. Many firms have no independent directors. Financial disclosure is a second area of weakness. Only a minority of firms provide a statement of cash flows or …

Accidental Privacy Spills, James Grimmelmann

Cornell Law Faculty Publications

The realm of privacy law has more crimes than criminals, more wrongs than wrongdoers. Some invasions of privacy are neither intentional nor negligent; it's easy to recognize the harm, but hard to pin the blame.

Laurie Garrett attended the World Economic Forum as a journalist and wrote a private email to a few close friends, only to see that email end up on a widely-read weblog.

This essay tells the story of that inevitable accident: an "accident" in that it needn't have happened, but "inevitable" in that there's no principled way to prevent similar misunderstandings from recurring, again and again …

Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Cornell Law Faculty Publications

We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared arbitration clause use in consumer contracts with their use in the same firms' nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% of the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in nearly all material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers. …

The Anti-Network: Private Global Governance, Legal Knowledge, And The Legitimacy Of The State, Annelise Riles

Cornell Law Faculty Publications

Global private law has become the source of both anxiety and euphoria. Inherent in this fascination is the assumption that global private law threatens the legitimacy of the state by taking over its functions through new techniques of governance. In this article, I build upon research in one arena of global private governance, the production of legal documentation for the global swap markets, to challenge the most prominent assumptions about private law beyond the state. I argue that rather than focusing on how global private law is or is not an artifact of state power, a body of private norms, …

Transdisciplinary Conflict Of Laws Foreword: Cavers's Double Legacy, Karen Knop, Ralf Michaels, Annelise Riles

Cornell Law Faculty Publications

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Cultural Conflicts, Annelise Riles

Cornell Law Faculty Publications

This article builds upon insights from contemporary anthropology to rethink the field of conflicts as a matter of cultural conflict. This approach shifts the analysis away from the dominant approaches in the discipline, which take as their primary metric either questions of state power or of individual rights. Drawing on a case of conflict between Native American legal norms and U.S. state and federal law, this article argues for a conflicts methodology that takes seriously the role of cultural description in the process of cultural adjudication. To do so, in turn will require us to adopt a more sophisticated, flexible, …

Heuristics, Biases, And Philosophy, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Commenting on Professor Cass Sunstein's work is a daunting task. There is simply so much of it. Professor Sunstein produces scholarship at a rate that is faster than I can consume it. Scarcely an area of law has failed to feel his impact. One cannot today write an article on administrative law, free speech, punitive damages, Internet law, law and economics, separation of powers, or animal rights law without addressing one or more of Sunstein's papers. And his work is typically not a mere footnote. Sunstein has changed how scholars think about each of these areas of law. More broadly, …

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Eclecticism, Nelson Tebbe

Cornell Law Faculty Publications

This short piece comments on Kent Greenawalt's new book, Religion and the Constitution: Establishment and Fairness. It argues that although Greenawalt's eclectic approach carries certain obvious costs, his theory cannot be evaluated without comparing its advantages and disadvantages to those of its competitors. It concludes by giving some sense of what that comparative calculus might look like.

Lawyers As Quasi-Public Actors, W. Bradley Wendel

Cornell Law Faculty Publications

This paper was written for a panel on access to justice at the 100th anniversary conference of the Law Society of Alberta, Canada. In it I argue that the debate over access to justice, which in the United States generally means pro bono representation provided by individual lawyers, cannot be divorced from broader theoretical debates about the lawyer's role. My claim is that lawyers are quasi-public actors, in the sense that they have some responsibility to aim directly at justice in their representation of clients, and cannot rely only on indirect strategies to ensure that justice is served. The argument …

Cafa Judicata: A Tale Of Waste And Politics, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

The Class Action Fairness Act has taken on its real form through construction by the federal judges. That form emerges in this empirical study of judicial activity and receptivity to the Act. Our data comprise the opinions under the Act published during the two and a half years following its enactment in 2005.

CAFA has produced a lot of litigation in its short life. The cases were varied, of course, but most typically the resulting published federal opinion involved a removed contract case, with the dispute turning on the statute's effective date or on federal jurisdiction. Even though the opinions …

The Bounds Of Necessity, Jens David Ohlin

Cornell Law Faculty Publications

The current controversy surrounding the legality of torture can only be understood through an analysis of the distinction between justified necessity and excused necessity. Although there may be strong prudential reasons for international criminal courts to declare torture unlawful under any circumstance, this would not necessarily prevent a court from recognizing that an excuse may apply. However, the hallmark of the necessity excuse should not be understood, as it is in German law, as an exception that only applies when a defendant breaks the law to save someone close to him. Rather, the basic principle of the excuse ought to …

Excluding Religion, Nelson Tebbe

Cornell Law Faculty Publications

This Article considers whether government may single out religious actors and entities for exclusion from its support programs. The problem of selective exclusion has recently sparked interest in lower courts and in informal discussions among scholars, but the literature has not kept pace. Excluding Religion argues that government generally ought to be able to select religious actors and entities for omission from support without offending the Constitution. At the same time, the Article carefully circumscribes that power by delineating several limits. It concludes by drawing out some implications for the question of whether and how a constitutional democracy ought to …

A Study In Rule-Specific Issue Categorization For E-Rulemaking, Claire Cardie, Cynthia R. Farina, Adil Aijaz, Matt Rawding, Stephen Purpura

Cornell Law Faculty Publications

We address the e-rulemaking problem of categorizing public comments according to the issues that they address. In contrast to previous text categorization research in e-rulemaking, and in an attempt to more closely duplicate the comment analysis process in federal agencies, we employ a set of rule-specific categories, each of which corresponds to a significant issue raised in the comments. We describe the creation of a corpus to support this text categorization task and report interannotator agreement results for a group of six annotators. We outline those features of the task and of the e-rulemaking context that engender both a non-traditional …

Finding And Citing The "Unimportant" Decisions Of The U.S. Courts Of Appeals, Peter W. Martin

Cornell Law Faculty Publications

A Federal Rule of Appellate Procedure that took effect at the end of 2006 overturned past policies in several circuits that banned or severely limited citation of unpublished or nonprecedential opinions. All U.S. Court of Appeals decisions issued after January 1, 2007, published or not, may be cited. One of the objections raised by those opposed to the rule rested on concern about access to such opinions, which constitute more than 80% of the annual total. The Judicial Conference committee that drafted and pressed for adoption of the rule pointed out that federal legislation called on the circuit courts to …

Curing Congress’S Ills: Criminal Law As The Wrong Paradigm For Congressional Ethics, Josh Chafetz

Cornell Law Faculty Publications

No abstract provided.