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Articles 1 - 12 of 12

Full-Text Articles in Legal History

Inside The Bankruptcy Judge's Mind, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich Dec 2006

Inside The Bankruptcy Judge's Mind, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Cornell Law Faculty Publications

In this paper, we extend our prior work on generalist judges to explore whether specialization leads to superior judicial decision making. To do so, we report the results of a study of federal bankruptcy judges. In one prior study of bankruptcy judges, Ted Eisenberg reported evidence suggesting that bankruptcy judges, like generalist judges, are susceptible to the "self-serving" or "egocentric" bias when making judgments. Here, we report evidence showing that bankruptcy judges are vulnerable to anchoring and framing effects, but appear largely unaffected by the omission bias, a debtor's race, a debtor's apology, and "terror management" or "mortality ...


Michelman As Doctrinalist, Gregory S. Alexander Dec 2006

Michelman As Doctrinalist, Gregory S. Alexander

Cornell Law Faculty Publications


Towards A Common Law Originalism, Bernadette Meyler Dec 2006

Towards A Common Law Originalism, Bernadette Meyler

Cornell Law Faculty Publications

Originalists' emphasis upon William Blackstone's "Commentaries on the Laws of England" tends to suggest that the common law of the Founding era consisted in a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some more archaic and others more innovative, co-existed at the time of the Founding. Furthermore, jurists and politicians of the Founding generation were not unaware that the common law constituted a disunified field; indeed, the jurisprudence of the common law ...


Reconstructing Richard Epstein, Eduardo M. Peñalver Dec 2006

Reconstructing Richard Epstein, Eduardo M. Peñalver

Cornell Law Faculty Publications


Insurers, Illusions Of Judgment & Litigation, Chris Guthrie, Jeffrey J. Rachlinski Nov 2006

Insurers, Illusions Of Judgment & Litigation, Chris Guthrie, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Insurers play a critical role in the civil justice system. By providing liability insurance to parties who would otherwise be untenable as defendants, insurers make litigation possible. Once litigation materializes, insurers provide representation, pay legal fees, and often play a central role in resolving disputes through settlement or adjudication. In this paper, we explore empirically how these key litigation players make important decisions in the litigation process, like evaluating a case, deciding whether to settle, and if so, on what terms. We find that insurers that have been shown to distort litigation decision making, appear to make decisions in a ...


Bottom-Up Versus Top-Down Lawmaking, Jeffrey J. Rachlinski Jul 2006

Bottom-Up Versus Top-Down Lawmaking, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Democratic legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (from the bottom up); or by declaring general principles through a centralized authority that are to be applied in individual cases (from the top down). These two processes are, respectively, adjudication and legislation. Each process highlights and hides different aspects of a legal problem. The single-case perspective of adjudication can seem narrow, and hence inferior to the broad perspectives that legislatures can incorporate into their decisionmaking processes. The adjudicative approach, however, has advantages that are less obvious. Notably, the ...


Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver May 2006

Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver

Cornell Law Faculty Publications


Institutional And Individual Justification In Legal Ethics: The Problem Of Client Selection, W. Bradley Wendel Apr 2006

Institutional And Individual Justification In Legal Ethics: The Problem Of Client Selection, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.


The Equal Protection Of Free Exercise: Two Approaches And Their History, Bernadette Meyler Mar 2006

The Equal Protection Of Free Exercise: Two Approaches And Their History, Bernadette Meyler

Cornell Law Faculty Publications

Contrary to critics of the Supreme Court's current equal protection approach to religious liberty, this Article contends that, from the very first federal free exercise cases, the Equal Protection and Free Exercise Clauses have been mutually intertwined. The seeds of an equal protection analysis of free exercise were, indeed, planted even before the Fourteenth Amendment within the constitutional jurisprudence of the several states. Furthermore, this Article argues, equal protection approaches should not be uniformly disparaged. Rather, the drawbacks that commentators have observed result largely from the Supreme Court's application of an inadequate version of equal protection. By ignoring ...


Substitute Chancellors: The Role Of The Jury In The Contest Between Common Law And Equity, Bernadette A. Meyler Feb 2006

Substitute Chancellors: The Role Of The Jury In The Contest Between Common Law And Equity, Bernadette A. Meyler

Cornell Law Faculty Publications

The common law - thought to provide an ancient constitution securing the liberties of the people from monarchical tyranny - and opposition against it, played an acknowledged part in the debates among Royalists, Parliamentarians, and Puritans during seventeenth-century England. Very little attention has, however, been devoted to the status of the jury within these arguments either for the supremacy of the common law or for the King's prerogative, institutionally embodied most prominently in the Star Chamber and the Court of Chancery. As this Article argues, the procedural virtues and the philosophical goals of the jury and of the Chancellor as expressed ...


Some Observations On The Role Of Social Change On The Courts, Gerald Torres Jan 2006

Some Observations On The Role Of Social Change On The Courts, Gerald Torres

Cornell Law Faculty Publications

No abstract provided.


Cognitive Errors, Individual Differences, And Paternalism, Jeffrey J. Rachlinski Jan 2006

Cognitive Errors, Individual Differences, And Paternalism, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Legal scholars commonly argue that the widespread presence of cognitive errors in judgment justifies legal intervention to save people from predictable mistakes. Such arguments often fail to account for individual variation in the commission of such errors even though individual variation is probably common. If predictable groups of people avoid making the errors that others commit, then law should account for such differences because those who avoid errors will not benefit from paternalistic interventions and indeed may be harmed by them. The research on individual variation suggests three parameters that might distinguish people who can avoid error: cognitive ability, experience ...