Law Commons^™

Rulemaking Versus Adjudication: A Psychological Perspective, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (the adjudicative process) or by declaring general principles through a centralized authority that are to be applied in individual cases (through the rulemaking process). Administrative agencies have long had the unfettered authority to choose between the two methods. Although each method could identify the same solution to the legal issues that come before them, in practice, the two systems commonly settle upon different resolutions. Each system presents the underlying legal issue from a different cognitive perspective, highlighting and hiding different …

Professionalism As Interpretation, W. Bradley Wendel

Cornell Law Faculty Publications

In this Article, I defend the interpretive attitude of professionalism. Professionalism is a stance toward the law which accepts that a lawyer is not merely an agent of her client. Rather, in carrying out her client's lawful instructions, a lawyer has an obligation to apply the law to her client's situation with due regard to the meaning of legal norms, not merely their formal expression. Professionalism requires a lawyer acting in a representative capacity to respect the achievement represented by law, namely the final settlement of contested issues (both factual and normative) with a view toward enabling coordinated action in …

Misunderstanding Ability, Misallocating Responsibility, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

In the Anglo-American legal tradition, people are responsible for damage caused by their failure to conform their conduct with that of the "reasonable person." With few exceptions, so long as one's conduct conforms to that of the reasonable person, then even if the conduct harms others, it does not create liability. Courts understand that the "reasonable person" is an idealized legal fiction but believe the construct to be a useful way to identify culpable conduct. For the reasonable-person test to be useful, courts must identify the characteristics of this reasonable person. As to cognitive and perceptual abilities, courts endow this …

Education And Interrogation: Comparing Brown And Miranda, John H. Blume, Sheri Lynn Johnson, Ross Feldmann

Cornell Law Faculty Publications

Although the Warren Court had its share of grand decisions, perhaps it should be known instead for its grand goals--particularly the goals of ending America's shameful history of segregation and of providing a broad array of constitutional rights to persons accused of committing crimes. Brown v. Board of Education and Miranda v. Arizona, the two most well-known decisions of the Warren Court (and possibly the two most well-known decisions in the history of the Supreme Court), best capture the Court's labor in the rocky fields of our nation's legal, political, and cultural life. In this Article, we explore certain parallels …

The Pluralistic Foundations Of The Religion Clauses, Steven H. Shiffrin

Cornell Law Faculty Publications

Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in …

Common-Law Compulsory Counterclaim Rule: Creating Effective And Elegant Res Judicata Doctrine, Kevin M. Clermont

Cornell Law Faculty Publications

Even in the absence of an applicable statute or court rule, failure to assert an available counterclaim precludes bringing a subsequent action thereon if granting relief would nullify the judgment in the initial action. This so-called common-law compulsory counterclaim rule emerges from the intuitive principle of claim preclusion that a valid and final judgment generally precludes the defendant from later asserting mere defenses to the claim. The implicit extension of this idea is that once a plaintiff obtains a judgment, the defendant generally cannot bring a new action to undo the judgment by reopening the plaintiff’s claim and pushing those …

The Jurisprudence Of Enron: Professionalism As Interpretation, W. Bradley Wendel

Cornell Law Faculty Publications

Jurisprudence can seem like a formidably esoteric field, with conceptual arguments carried on at a high level of abstraction, seemingly remote from the concerns of practicing lawyers. In fact, it is impossible to ignore jurisprudence when thinking about the role of lawyers in the wave of financial accounting scandals exemplified by the collapse of Enron. The Enron case is not about ethics so much as it is about the interpretation and application of a complex scheme of legal norms to innovative business transactions. The lawyers believed they were taking a legitimate, albeit aggressive interpretive attitude toward the law, by structuring …

The Jurisprudence Of Enron: Professionalism As Interpretation, W. Bradley Wendel

Cornell Law Faculty Working Papers

Jurisprudence can seem like a formidably esoteric field, with conceptual arguments carried on at a high level of abstraction, seemingly remote from the concerns of practicing lawyers. In fact, it is impossible to ignore jurisprudence when thinking about the role of lawyers in the wave of financial accounting scandals exemplified by the collapse of Enron. The Enron case is not about ethics so much as it is about the interpretation and application of a complex scheme of legal norms to innovative business transactions. The lawyers believed they were taking a legitimate, albeit aggressive interpretive attitude toward the law, by structuring …

Overview Of Legal Systems In The Asia-Pacific Region: India, Navoneel Dayanand

Overview of Legal Systems in the Asia-Pacific Region (2004)

This article provides a general description of the legal system of India. It further discusses aspects of legal education and legal practice in that country.

On International And Interdisciplinary Legal Ethics Scholarship, W. Bradley Wendel

Cornell Law Faculty Publications

"Legal Ethics is an international and interdisciplinary journal dedicated to the field of legal ethics." The mission statement of this journal poses three concise challenges for scholars in this discipline: To define the domain of legal ethics, to study it from a perspective that is valid across jurisdictional boundaries, and to incorporate the insights of related disciplines. As befits an emerging and exciting field, lawyers and university faculty throughout the English- speaking common-law world have begun to engage with all three of these problems. The book reviews section of Legal Ethics has highlighted the publication of many of the …

Legal Indeterminacy And Institutional Design, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Reason And Authority In Legal Ethics, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Pragmatist And Non-Pragmatist Knowledge Practices In American Law, Mariana Valverde

Pragmatism, Law and Governmentality

For anyone interested in documenting and analyzing knowledge practices, legal arenas prove to be fruitful sites, for at least two reasons. 1) First, questions of evidence and of authority are often explicitly contested, with the contestations often forming part of a court’s public record and/or going on in the public setting of the courtroom. Thus, unlike science studies scholars, who must gain access to social interactions that are not mentioned in scientific papers and that do not take place in public view, legal studies scholars have vast amounts of material – affidavits, trial transcripts, etc– that can readily be analyzed, …

Styles Of Pragmatism, Social Science And The Law, Robert P. Burns

Pragmatism, Law and Governmentality

I have long held as an ideal the words of one of foremost American interpreters of John Dewey's philosophy: "An adequate, comprehensive political and social theory must be at once empirical, interpretive, and critical." How these styles of social inquiry, whose practitioners often seem at war, might cohere has never been completely clear. This essay is an attempt to work out in a very limited context some of the issues surrounding these relationships. In particular, I want to explore the relationship between the interpretive style, which I take to be central, and the other two. The focus of these remarks …

Ten Years Of Payne: Victim Impact Evidence In Capital Cases, John H. Blume

Cornell Law Faculty Publications

A little over a decade ago, in Payne v. Tennessee, the U.S. Supreme Court cleared the way for capital sentencing juries to consider “victim impact evidence” (VIE). Reversing its prior decisions in Booth v. Maryland and South Carolina v. Gathers, a six to three majority of the Court held that “if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.” Part I of this Article will discuss the Court’s prior decisions in Booth and Gathers, and Parts II and III will …

Comparative Readings Of Roscoe Pound's Jurisprudence, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

Judges As Altruistic Hierarchs, Lynn A. Stout

Cornell Law Faculty Publications

No abstract provided.

Legal Institutions In Professor H.L.A. Hart's Concept Of Law, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Empirical Methods And The Law, Theodore Eisenberg

Cornell Law Faculty Publications

One can divide empirical analysis of legal issues into three major branches: (1) the use of scientific empirical analysis by litigants to attempt to prevail in individual cases, (2) the use of social scientific empirical analysis in individual cases, and (3) the use of the empirical methods to describe the legal system’s operation. The first two uses present difficulties that reflect a fundamental limitation on using statistical methods in law: the difference between establishing statistical association and establishing actual causation in an individual case filtered through our adversary legal system. The third use encounters no such obstacle and can aid …

Critical Race Theory And Postcolonial Development Theory: Observations On Methodology, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise

Cornell Law Faculty Publications

The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary's participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary's participation take?

Debates over the judiciary's appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My article approaches this …

Causes Of Inequality In The International Economic Order: Critical Race Theory And Postcolonial Development, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

The Supreme Court 1997 Term -- Foreword: The Limits Of Socratic Deliberation, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

"Lit. Theory" Put To The Test: A Comparative Literary Analysis Of American Judicial Tests And French Judicial Discourse, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

The formalism/policy dichotomy has structured American jurisprudential analyses of judicial decisionmaking for most of the twentieth century. In this Article, Professor Lasser analyzes and compares American multi-part judicial tests and French civil judicial discourse to demonstrate that the dichotomy reflects and informs the ways in which judicial decisions are written. Drawing on the works of Roman Jakobson, Roland Barthes, and Paul de Man, he constructs a literary methodology to analyze American and French judicial discourse. Professor Lasser contends that the formalism/policy dichotomy is part of a larger process by which the American and French judicial systems justify how they produce …

Comparative Law And Comparative Literature: A Project In Progress, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

How Law Is Formal And Why It Matters, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Developing Countries And Multilateral Trade Agreements: Law And The Promise Of Development, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Judicial (Self-)Portraits: Judicial Discourse In The French Legal System, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

The French legal system, according to its official pronouncements, functions on a rigid conception of the interpretive and creative role of the civil, private law judge. This conception may be thought of as an "official portrait": It is an image or representation of the judge and of the nature of the judicial role. The official portrait, which represents an interpretive ideology that posits a perfectly grammatical mode of reading the legal code, has been the source of much confusion, especially to common lawyers. This portrait's predominance in the French legal system, and its effect on French judicial practice, has never …

Prediction And The Rule Of Law, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.