Law Commons^™

The Virtues Of Moderation, James Grimmelmann

Cornell Law Faculty Publications

On a Friday in 2005, the Los Angeles Times launched an experiment: a “wikitorial” on the Iraq War that any of the paper’s readers could edit. By Sunday, the experiment had ended in abject failure: vandals overran it with crude profanity and graphic pornography. The wikitorial took its inspiration and its technology from Wikipedia, but missed something essential about how the “the free encyclopedia that anyone can edit” staves off abuse while maintaining its core commitment to open participation.

The difference is moderation: the governance mechanisms that structure participation in a community to facilitate cooperation and prevent abuse. Town meetings …

Four Decades Of Federal Civil Rights Litigation, Theodore Eisenberg

Cornell Law Faculty Publications

Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge …

Pain And Suffering Damages In Wrongful Death Cases: An Empirical Study, Yun-Chien Chang, Theodore Eisenberg, Han-Wei Ho, Martin T. Wells

Cornell Law Faculty Publications

Most jurisdictions in the United States award pain and suffering damages to spouses of victims in wrongful death cases. In several East Asian countries, spouses, parents, and children of the victim can all demand pain and suffering damages. Despite the prevalence of this type of damages, and the oft‐enormous amount of compensation, there has been no large‐scale empirical study on how judges achieve the difficult task of assessing pain and suffering damages. Using a unique data set containing hundreds of car accident cases rendered by the court of first instance in Taiwan, with single‐equation and structural‐equation models, we find the …

Solving The Puzzle Of Transnational Class Actions, Kevin M. Clermont

Cornell Law Faculty Publications

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The dominant approach has been an exclusionary one, dropping the absentees from the class. This essay instead recommends an inclusionary approach, so that all the foreigners would remain members of the class in transnational class actions. But the court should create a subclass in damages actions for the foreign claimants who might have an incentive to sue again; the subclass would proceed by the accepted technique of claims-made recovery, so that the subclass members could …

Education Rights And Wrongs: Publicly Funded Vouchers, State Constitutions, And Education Death Spirals, Michael Heise

Cornell Law Faculty Publications

A response to Julie F. Mead, The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees, 42 FORDHAM URB. L.J. 703 (2015).

The Death Penalty: Should The Judge Or The Jury Decide Who Dies?, Valerie P. Hans, John H. Blume, Theodore Eisenberg, Amelia Courtney Hritz, Sheri L. Johnson, Caisa Elizabeth Royer, Martin T. Wells

Cornell Law Faculty Publications

This article addresses the effect of judge versus jury decision making through analysis of a database of all capital sentencing phase hearing trials in the State of Delaware from 1977– 2007. Over the three decades of the study, Delaware shifted responsibility for death penalty sentencing from the jury to the judge. Currently, Delaware is one of the handful of states that gives the judge the final decision-making authority in capital trials. Controlling for a number of legally relevant and other predictor variables, we find that the shift to judge sentencing significantly increased the number of death sentences. Statutory aggravating factors, …

Damages Versus Specific Performance: Lessons From Commercial Contracts, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Specific performance is a central contractual remedy but, in Anglo-American law, generally is subordinate to damages. Despite rich theoretical discussions of specific performance, little is known about parties' treatment of the remedy in their contracts. We study 2,347 contracts of public corporations to quantify the presence or absence of specific performance clauses in several types of contracts. Although a majority of contracts do not refer to specific performance, substantial variation exists in the rates of including specific performance clauses. High rates of specific performance use in the area of corporate combinations through merger (53.4 percent) or assets sales (45.1 percent), …

Plaintiphobia In State Courts Redux? An Empirical Study Of State Court Trials On Appeal, Theodore Eisenberg, Michael Heise

Cornell Law Faculty Publications

Prior federal and state civil appeals studies show that appeals courts overturn jury verdicts more than bench decisions and that defendants fare better than plaintiffs on appeal. Attitudinal and selection effect hypotheses may help explain an appellate court tilt that favors defendants. This study builds on and extends our prior work on state civil appeals and examines a comprehensive state court civil appeals data set to test leading theories on appellate outcomes as well as to explore the relation between plaintiff success at trial and on appeal. Using data from 40 different states and 141 counties on 8,872 completed civil …

The Macroprudential Turn: From Institutional 'Safety And Soundness' To Systematic 'Financial Stability' In Financial Supervision, Robert C. Hockett

Cornell Law Faculty Publications

Since the global financial dramas of 2008-09, authorities on financial regulation have come increasingly to counsel the inclusion of macroprudential policy instruments in the standard ‘toolkit’ of finance-regulatory measures employed by financial supervisors. The hallmark of this perspective is its focus not simply on the safety and soundness of individual financial institutions, as is characteristic of the traditional ‘microprudential’ perspective, but also on certain structural features of financial systems that can imperil such systems as wholes. Systemic ‘financial stability’ thus comes to supplement, though not to supplant, institutional ‘safety and soundness’ as a regulatory desideratum.

The move from primarily micro- …

From Comparison To Collaboration: Experiments With A New Scholarly And Political Form, Annelise Riles

Cornell Law Faculty Publications

In both the anthropology of law and comparative legal studies, a new direction for research and practice is emerging: collaboration. This article analyzes collaboration as a modality of comparative law and legal anthropology and indeed a wider template for social and political life at this moment. I consider the theoretical and practical reasons for its importance at this moment, and its implications for the relationship of comparative law and legal anthropology. I argue that the very ubiquity and mundanity of collaboration discourse and practice in law and policy suggests that a response cannot simply be critique from outside — it …

Size Matters: Commercial Banks And The Capital Markets, Charles K. Whitehead

Cornell Law Faculty Publications

The conventional story is that the Gramm-Leach-Bliley Act broke down the Glass-Steagall Act’s wall separating commercial and investment banking in 1999, increasing risky business activities by commercial banks and precipitating the 2007 financial crisis. But the conventional story is only one-half complete. What it omits is the effect of change in commercial bank regulation on financial firms other than the commercial banks. After all, it was the failure of Lehman Brothers — an investment bank, not a commercial bank — that sparked the meltdown.

This Article provides the rest of the story. The basic premise is straightforward: By 1999, the …

Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton

Cornell Law Faculty Publications

The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. …

Governing And Deciding Who Governs, Josh Chafetz

Cornell Law Faculty Publications

In McCutcheon v. Federal Election Commission, Chief Justice Roberts wrote that, "Campaign finance restrictions that pursue other objectives [than eradicating quid pro quo corruption or its appearance], we have explained, impermissibly inject the Government 'into the debate over who should govern.' And those who govern should be the last people to help decide who should govern."

This passage sounds great — after all, who could object to an attempt to purge official self-dealing, especially in the election-law context? And therein lies its insidiousness: this rousing language masks a programmatic attempt by Roberts and his colleagues to distance themselves rhetorically …

The Corporation As A Time Machine: Intergenerational Equity, Intergenerational Efficiency, And The Corporate Form, Lynn A. Stout

Cornell Law Faculty Publications

This Symposium Article argues that the board-controlled corporation can be understood as a legal innovation that historically has functioned as a means of transferring wealth forward and sometimes backward through time, for the benefit of present and future generations. In this fashion the board-controlled corporation promotes both intergenerational equity and intergenerational efficiency. Logic and evidence each suggest, however, that the modern embrace of "shareholder value" as the only corporate objective and "shareholder democracy" as the ideal of corporate governance is damaging the corporate form's ability to serve this economically and ethically important function.

When Nominal Is Reasonable: Damages For The Unpracticed Patent, Oskar Liivak

Cornell Law Faculty Publications

To obtain a substantial patent damage award a patentee need not commercialize the patented invention; the patentee need only show that its patent was infringed. This surely incentivizes patenting but it dis-incentivizes innovation. Why commercialize yourself? The law allows you to wait for others to take the risks, and then you emerge later to lay claim to “in no event less than a reasonable” fraction of other people’s successes. It is rational to be a patent troll rather than an innovator. This troll-enabling interpretation of patent law’s reasonable royalty provision, however, is wrong as a matter of patent policy. Surprisingly, …

Religion And Marriage Equality Statutes, Nelson Tebbe

Cornell Law Faculty Publications

To date, every state statute that has extended marriage equality to gay and lesbian couples has included accommodations for actors who oppose such marriages on religious grounds. Debate over those accommodations has occurred mostly between, on the one hand, people who urge broader religion protections and, on the other hand, those who support the types of accommodations that typically have appeared in existing statutes. This article argues that the debate should be widened to include arguments that the existing accommodations are normatively and constitutionally problematic. Even states that presumptively are most friendly to LGBT citizens, as measured by their demonstrated …

Introduction To Juries And Lay Participation: American Perspectives And Global Trends, Nancy S. Marder, Valerie P. Hans

Cornell Law Faculty Publications

The jury in the United States is fraught with paradoxes. Even though the number of jury trials in the United States continues to decline, jury trials play a prominent role in American culture and continue to occupy headlines in newspapers and top stories on television. Americans might not always agree with the verdict that any given jury renders, but they continue to express their support for the jury system in poll after poll. This Symposium of the Chicago-Kent Law Review presents new theories and research, with a focus on the contemporary American jury. The Introduction begins by connecting discussions at …

Fixing Failure To Warn, Aaron D. Twerski, James A. Henderson Jr.

Cornell Law Faculty Publications

Design-defect and failure-to-warn cases share the same structural elements. Just as the defendant cannot defend a case premised on defective design without knowing the specifics of how the plaintiff would redesign the product to make it safer, so with regard to defective warnings the plaintiff cannot challenge the reasonableness of the defendant's marketing or whether better warnings would have saved the plaintiff from injury without knowing the specifics of the proposed warnings. No court would accept as adequate a statement by the plaintiff that she has a general idea for a reasonable alternative design (RAD), and no court should accept …

Decoding "Never Again", Sherry F. Colb

Cornell Law Faculty Publications

This article, Decoding “Never Again,” narrates its author’s experience as a child of two Holocaust survivors, one of whom participated in rescuing thousands of his fellow Jews during the war. Colb meditates on this legacy and concludes that her understanding of it has played an important role in inspiring her scholarship about (and ethical commitment to) animal rights. She examines and analyzes the ways in which analogies between the Holocaust and anything else can trigger people’s anger and offense, and she then draws a distinction between occasions when offense is an appropriate response to such analogies and when it need …

The Doctrine Of Legitimate Defense, Jens David Ohlin

Cornell Law Faculty Publications

The following article reorients mainstream conceptions of self-defense by defending a broader doctrine of legitimate defense that, in limited circumstances, justifies unilateral intervention. The source of the doctrine is natural law, which was explicitly incorporated into the text of UN Charter article 51. The effect of this incorporation was to preserve, as a carve-out from the prohibition against force in Article 2, the natural law rights of defensive force. Specifically, the Article concludes that defensive force under natural law included, in extreme situations, a right of intervention in rogue States that refused to comply with natural law. The Article then …

Public Actors In Private Markets: Toward A Developmental Finance State, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Publications

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

Law And Ethics Of Experiments On Social Media Users, James Grimmelmann

Cornell Law Faculty Publications

If you were on Facebook in January 2012, there is a chance that it tried to make you sad. If you were on OkCupid, there is a chance that it tried to match you up with someone incompatible. These were social psychology experiments: Facebook and OkCupid systematically manipulated people's environments to test their reactions. Academics doing similar experiments in a university setting would typically need to obtain informed consent from participants and approval from an Institutional Review Board (IRB). But Facebook and OkCupid, and the academics working with Facebook, had neither. This, I believe, is a problem.

These experiments offer …

A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court's Creation Of A Categorical Bar, John H. Blume, Sheri Lynn Johnson, Paul Marcus, Emily C. Paavola

Cornell Law Faculty Publications

This article examines empirically the capital cases decided by the lower courts since the United States Supreme Court created the categorical ban against the execution of persons with intellectual disability twelve years ago in the Atkins decision.

Reflections On The Korean Jury Trial, Valerie P. Hans

Cornell Law Faculty Publications

Korea's experience with its new jury system offers many lessons for those interested in juries and jury reform worldwide. Aiming for a unique jury system that was ideally suited to Korean citizens and their legal system, those who crafted Korea's jury incorporated elements of both classic jury systems and mixed tribunals. Initially, the jury deliberates on guilt independently of the judge, but the procedure includes optional as well as mandatory opportunities for the presiding judge to advise the jury during its deliberation. The Korean jury delivers an advisory rather than binding jury verdict. These and other features of the Korean …

Fast-Food Workers Fight For A Raise And Create A Movement, Angela B. Cornell

Cornell Law Faculty Publications

No abstract provided.

The Limits Of Private Ordering Within Modern Financial Markets, Dan Awrey

Cornell Law Faculty Publications

From standardized contracts for loans, repurchase agreements, and derivatives, to stock exchanges and alternative trading platforms, to benchmark interest and foreign exchange rates, private market structures play a number of important roles within modern financial markets. These market structures hold out a number of significant benefits. Specifically, by harnessing the powerful incentives of market participants, these market structures can help lower information, agency, coordination, and other transaction costs, enhance the process of price discovery, and promote greater market liquidity. Simultaneously, however, successful market structures are the source of significant and often overlooked market distortions. These distortions--or limits of private ordering--stem …

Democratic Deliberation In The Wild: The Mcgill Online Design Studio And The Regulationroom Project, Cynthia R. Farina, Hoi Kong, Cheryl Blake, Mary J. Newhart, Nik Luka

Cornell Law Faculty Publications

Although there is no single unified conception of deliberative democracy, the generally accepted core thesis is that democratic legitimacy comes from authentic deliberation on the part of those affected by a collective decision. This deliberation must occur under conditions of equality, broadmindedness, reasonableness, and inclusion. In exercises such as National Issue forums, citizen juries, and consensus conferences, deliberative practitioners have shown that careful attention to process design can enable ordinary citizens to engage in meaningful deliberation about difficult public policy issues. Typically, however, these are closed exercises-that is, they involve a limited number of participants, often selected to achieve a …

Anarchy, Status Updates, And Utopia, James Grimmelmann

Cornell Law Faculty Publications

Social software has a power problem. Actually, it has two. The first is technical. Unlike the rule of law, the rule of software is simple and brutal: whoever controls the software makes the rules. And if power corrupts, then automatic power corrupts automatically. Facebook can drop you down the memory hole; Paypal can garnish your pay. These sovereigns of software have absolute and dictatorial control over their domains.

Is it possible to create online spaces without technical power? It is not, because of social software’s second power problem. Behind technical power there is also social power. Whenever people come together …

The Future Of Fault In Contract Law, Robert A. Hillman

Cornell Law Faculty Publications

According to judicial opinions, the Restatement (Second) of Contracts, and some analysts, the reasons for failing to perform a contract, whether willful, negligent, or unavoidable, have little or no bearing in determining contract liability. Contract liability is said to be “strict,” meaning that the reasons for nonperformance are irrelevant in determining the injured party’s rights. In this Article, I argue that the reasons for failing to perform, which focus on whether non-performance is the promisor’s fault, are crucially important in the resolution of many, perhaps most disputes under contract law.

Legitimacy And Impartiality In A Sovereign Debt Workout Mechanism, Odette Lienau

Cornell Law Faculty Publications

Particularly in light of recent developments in sovereign debt litigation, there is a pressing need for discussion of more robust sovereign debt restructuring mechanisms. This paper contends that any sovereign debt workout mechanism (DWM) should embody the principles of legitimacy and impartiality, to the extent possible, in order to garner the stable and long-term adherence of international stakeholders. These two elements are important both for attracting support ex ante, i.e. in the initial development of any treaty, ad hoc, or soft law restructuring mechanism, and for ensuring ex post that a DWM is ultimately utilized by states and their creditors. …