Law Commons^™

Judge-Jury Agreement In Criminal Cases: A Partial Replication Of Kalven And Zeisel's The American Jury, Theodore Eisenberg, Paula L. Hannaford-Agor, Valerie P. Hans, Nicole L. Waters, G. Thomas Munsterman, Stewart J. Schwab, Martin T. Wells

Cornell Law Faculty Publications

This study uses a new criminal case data set to partially replicate Kalven and Zeisel's classic study of judge-jury agreement. The data show essentially the same rate of judge-jury agreement as did Kalven and Zeisel for cases tried almost 50 years ago. This study also explores judge-jury agreement as a function of evidentiary strength (as reported by both judges and juries), evidentiary complexity (as reported by both judges and juries), legal complexity (as reported by judges), and locale. Regardless of which adjudicator's view of evidentiary strength is used, judges tend to convict more than juries in cases of "middle" evidentiary …

The Fate Of Firms: Explaining Mergers And Bankruptcies, Clas Bergström, Theodore Eisenberg, Stefan Sundgren, Martin T. Wells

Cornell Law Faculty Publications

Using a uniquely complete data set of more than 50,000 observations of approximately 16,000 corporations, we test theories that seek to explain which firms become merger targets and which firms go bankrupt. We find that merger activity is much greater during prosperous periods than during recessions. In bad economic times, firms in industries with high bankruptcy rates are less likely to file for bankruptcy than they are in better years, supporting the market illiquidity arguments made by Shleifer and Vishny (1992). At the firm level, we find that, among poorly performing firms, the likelihood of merger increases with poorer performance, …

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 …

Fraud By Hindsight, G. Mitu Gulati, Jeffrey J. Rachlinski, Donald C. Langevoort

Cornell Law Faculty Publications

In securities-fraud cases, courts routinely admonish plaintiffs that they are not permitted to rely on allegations of "fraud by hindsight." In effect, courts disfavor plaintiffs' use of evidence of bad outcomes to support claims of securities fraud. Disfavoring hindsight evidence appears to tap into a well known, well-understood, and intuitively accessible problem of human judgment of "20/20 hindsight." Events come to seem predictable after unfolding, and hence, bad outcomes must have been predicted by people in a position to make forecasts. Psychologists call this phenomenon the hindsight bias. The popularity of this doctrine among judges deciding securities cases suggests that …

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 …

The Deep Grammar Of Distribution: A Meta-Theory Of Justice, Robert C. Hockett

Cornell Law Faculty Publications

No abstract provided.

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 …

Environmental Tribalism, Douglas A. Kysar, James Salzman

Cornell Law Faculty Publications

Recent writings by Dan Farber and J.B. Ruhl have put forward a strong case for "eco-pragmatic" and "radical middle" approaches to environmental policymaking. Rather than debate the merits of such an approach, in this Article we examine whether eco-pragmatic policy development is likely in practice and where it might occur, given the tribal nature of public environmental advocacy. We use the remarkably polarized reaction to Bjorn Lomborg's book, "The Skeptical Environmentalist," as a vehicle to explore the seemingly fundamental divide that exists between warring parties within the environmental law and policy communities. By offering a more complete understanding of why …

Separate But Equal And Single-Sex Schools , Gary J. Simson

Cornell Law Faculty Publications

Spurred on by published reports about gender bias in the schools, public single-sex schools, which had almost disappeared from the scene in the U.S. fifteen years ago, began to make a comeback in the early 1990s. In addition, in the past few years, the Bush Administration has taken measures to add momentum to this development. Does the principle that separate is inherently unequal, which the Supreme Court in Brown v. Board of Education laid down in the context of public schools separated by race, also apply to public schools separated by sex?

Part I of this Article examines the constitutionality …

Remarks As Delivered At Cornell University, William Jefferson Clinton

Cornell International Law Journal

No abstract provided.

An Emerging Third Way - The Erosion Of The Anglo-American Shareholder Value Construct, Cynthia A. Williams, John M. Conley

Cornell International Law Journal

No abstract provided.

The World Court’S Ruling Regarding Israel’S West Bank Barrier And The Primacy Of International Law: An Insider’S Perspective, Pieter H. F. Bekker

Cornell International Law Journal

A former UN official & staff lawyer for the International Court of Justice (ICJ) reflects on that courts ruling on Israels construction of a wall in the Occupied Palestinian Territory. It is emphasized that the Court's primary focus was upholding international law. The case was not about Israels right to build a protective structure on its own territory but about the course of the West Bank barrier that extends past the Green Line designated in the 1949 Armistice Agreement. Key pronouncements of the landmark opinion are examined, including condemnation of the settlements that Israel had established in Palestinian territories; the …

In Defense Of Hybridity: Towards A Representational Theory Of International Criminal Justice, Frederic Megret

Cornell International Law Journal

In this article in the Symposium on Milosevic & Hussein on Trial, the author proposes a critical & normative "representational theory" of what international criminals should be tried by in a hybrid tribunal framework that surpasses complementarity & primacy, & mitigates the lack of dimension in purely international or domestic trials. A discussion of universality issues regarding sovereignty & complementarity, & the complications of "ownership" in international crimes supports the assertion that the hybrid nature of the theory as a representation of crimes & acknowledgement of the affected communities. Comparative analysis between complementarity & hybridity are applied to the cases …

Lost In Translation: Distinguishing Between French And Anglo-American Natural Rights In Literary Property, And How Dastar Proves That The Difference Still Matters, Benjamin Davidson

Cornell International Law Journal

No abstract provided.

The Iraqi Special Tribunal: A Human Rights Perspective, Michael A. Newton

Cornell International Law Journal

In this article in the Symposium on Milosevic & Hussein on Trial, the author argues that the creation of the Iraq Special Tribunal (IST) is warranted under the existing structure of international law, & accords the highest aspirations of those who purport to believe in the rule of law. The legal authorities for the creation of the Special Iraqi Tribunal in Articles 64 & 43 of the Hague regulations regarding occupation, legal authority through the UN Security Council Resolution 1483, & the Coalitional Provisional Authority are defined. The structure of the IST is described in terms of jurisdictional reach, procedural …

Milosevic And Hussein On Trial, Alfred P. Rubin

Cornell International Law Journal

In this article in the Symposium on Milosevic & Hussein on Trial, the author discusses the difficulties of trying Saddam in the International Court of Justice (ICJ) at the Hague to argue that previous cases of genocide have resulted in the political strategy of exile or extermination. Four points that limit the possibilities for an ICJ trial are discussed, & the probable unjustness of the Iraqi Special Tribunal (IST) is related to the treatment of historical cases of Napoleon & Milosevic, & genocide criminals in the Rwanda & Nuremberg criminal trials. The author argues that the current position on genocide …

Nonracialism As An Educational And World View: Lessons From South African Teachers, Alan Wieder

Cornell Law Review

No abstract provided.

Economic Authority And The Limits Of Expertise In Antitrust Cases, John E. Lopatka, William H. Page

Cornell Law Review

No abstract provided.

Behavioral Economics And Health Policy: Understanding Medicaid’S Failure, Barak D. Richman

Cornell Law Review

No abstract provided.

A Right With No Remedy: Forced Disclosure Of Sexual Orientation And Public Outing Under 42 U.S.C. 1983, Brad S. Weinstein

Cornell Law Review

No abstract provided.

A Constitutional Oddity Of Almost Byzantine Complexity: Analyzing The Efficiency Of The Political Function Doctrine, Gregory A. Scopino

Cornell Law Review

No abstract provided.

Speech As Conduct: Generally Applicable Laws, Illegal Courses Of Conduct, Situation-Altering Utterances, And The Uncharted Zones, Eugene Volokh

Cornell Law Review

No abstract provided.

Cabining The Discretion Of The Federal Bureau Of Prisons And The Federal Courts: Interpretive Rules, Statutory Interpretation, And The Debate Over Community Confinement Centers, Yana Dobkin

Cornell Law Review

No abstract provided.

Unveiling The Real Issue: Evaluating The European Court Of Human Rights’ Decision To Enforce The Turkish Headscarf Ban In Leyla Sahin V. Turkey, Benjamin Bleiberg

Cornell Law Review

No abstract provided.

Who Pays The Auditor Calls The Tune?: Auditing Regulations And Clients' Incentives, Amy Shapiro

Cornell Law Faculty Publications

As we move on from the financial scandals of the early 2000s, the question of how to prevent the next Enron continues to be a pressing one. This Article focuses on the law’s deeply conflicted treatment of auditors of public corporations. Though the audit firm is charged with serving as the public’s watchdog in insuring good financial disclosure, the auditor’s actual client is the audited corporation itself, whose interests concerning disclosure are not necessarily aligned with those of investors. Because the Sarbanes-Oxley Act of 2002 left this structure in place, further reform is needed. One promising suggestion is to give …

Reflections On Lee, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

Domestic And International Developments Relating To The Death Penalty: Introduction And Remarks, Sandra L. Babcock

Cornell Law Faculty Publications

In recent years, international law has played an increasingly prominent role in the development of death penalty jurisprudence in both domestic and international tribunals. In the United States, the citation of foreign jurisprudence by the Supreme Court in Roper v. Simmons and Atkins v. Virginia has generated an intense debate within the Court, Congress, and the media. In the Caribbean, decisions of the Judicial Committee of the Privy Council and the Inter-American Court on Human Rights have resulted in commutations of numerous death sentences. While abolitionists have celebrated these developments, the death penalty remains a popular sanction, and human rights …

Administrative Injunctions: Assessing The Propriety Of Non-Class Collective Relief, Daniel J. Walker

Cornell Law Review

No abstract provided.

Legal Ethics And The Separation Of Law And Morals, W. Bradley Wendel

Cornell Law Review

No abstract provided.

Brown V. Board Of Education, Footnote 11, And Multidisciplinarity, Michael Heise

Cornell Law Review

No abstract provided.