Law Commons^™

Drug Treatment Courts And Emergent Experimentalist Government, Michael C. Dorf, Charles Frederick Sabel

Cornell Law Faculty Publications

Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies …

David Peterson Mar, What Trouble I Have Seen: A History Of Violence Against Wives, Cynthia Grant Bowman

Cornell Law Faculty Publications

No abstract provided.

The Emotional Economy Of Capital Sentencing, Stephen P. Garvey

Cornell Law Faculty Publications

You often hear that one reason capital jurors condemn capital defendants is that jurors don't empathize with defendants. And one reason they don't empathize is that the process of capital sentencing is rigged against empathy. Using data from the South Carolina segment of the Capital Jury Project, I try to examine the role emotion plays in capital sentencing.

Without entering here all the important and necessary caveats, I find that the self-reported emotional responses jurors have toward capital defendants run the gamut from sympathy and pity at one extreme, to disgust, anger, and fear at the other. What causes these …

The Timing Of Opinion Formation By Jurors In Civil Cases: An Empirical Examination, Paula Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, G. Thomas Munsterman

Cornell Law Faculty Publications

The question of when and how jurors form opinions about evidence presented at trial has been the focus of seemingly endless speculation. For lawyers, the question is how to capture the attention and approval of the jury at the earliest possible point in the trial. Their goal is to maximize the persuasiveness of their arguments--or at least to minimize the persuasiveness of those of the opposing side. Judges, in contrast, are more concerned about prejudgment. They regularly admonish jurors to suspend judgment until after all the evidence has been presented and after the jurors have been instructed on the law. …

A Cognitive Theory Of Fiduciary Relationships, Gregory S. Alexander

Cornell Law Faculty Publications

Is there anything special or distinctive about fiduciary relationships? Or is the term "fiduciary" nothing more than a label that obscures rather than clarifies? Recently, several law-and-economics scholars, building on the economic literature on agency costs, have argued that nothing categorically distinguishes fiduciary from nonfiduciary legal relationships. So-called fiduciary relationships, they argue, are nothing more or less than contractual relationships.

This Essay hypothesizes that courts possess a fairly well-developed schema of the fiduciary role, but have not developed a comparable schema for ordinary contracting parties. The fiduciary role-schema often makes courts more likely to over-interpret behavior of fiduciaries than in …

The Meaning Of "Agreement" Under The Sherman Act: Thoughts From The "Facilitating Practices" Experience, George A. Hay

Cornell Law Faculty Publications

While the Economic Policy Office was involved in a number of interesting and important matters during the six years I was Director (1973–1979), for the most part my involvement in individual investigations and cases was vicarious, i.e., supervising, supporting, and advising the staff economists assigned to the particular matter. The one major exception – a matter in which I became personally involved in an intensive way – was the General Electric (GE)-Westinghouse price signaling matter. In what follows, I provide a brief summary of what transpired in the GE-Westinghouse matter and then trace through some of the longer term consequences …

Spectral Evidence: The Ramona Case: Incest, Memory, And Truth On Trial In Napa Valley, By Moira Johnston [Book Review], Cynthia Grant Bowman

Cornell Law Faculty Publications

No abstract provided.

The "New" Law And Psychology: A Reply To Critics, Skeptics, And Cautious Supporters, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Mirror, Mirror On The Wall: A Vision For The Future, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus

Cornell Law Faculty Publications

In Weeks v. Angelone, 528 U.S. 225 (2000), the members of the capital sentencing jury asked for clarification of the jury instructions on the essential question of whether they were required to sentence Weeks to death upon the finding of certain aggravating factors. The judge merely informed the jurors to reread the instruction. The jurors returned with a death penalty sentence. The Supreme Court held that these jurors likely understood the instructions and at most Weeks had shown a slight possibility that the jurors believed they were precluded from considering mitigating evidence. However, the results of a mock jury study …

Assessing Proposals For Mandatory Procedural Protections For Sentencings Under The Guidelines, Steven D. Clymer

Cornell Law Faculty Publications

The federal sentencing guidelines have received sustained criticism from scholars, judges, and practitioners. Critics claim that the guidelines unwisely shift sentencing discretion from federal judges to prosecutors and probation officers; often mandate undeservedly harsh sentences; are complex, mechanistic, and bureaucratic; fail to achieve their goal of reducing sentencing disparity; and clog both district and appellate courts with litigation. Despite the attacks, some critics acknowledge that the guidelines will remain in force for the foreseeable future. While some nonetheless continue to urge abolition, others propose less ambitious reform, including enhancing the procedural protections available to criminal defendants at sentencing. Recommendations include …

Balance-Of-Payments Crises In The Developing World: Balancing Trade, Finance And Development In The New Economic Order, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

The Products Liability Restatement In The Courts: An Initial Assessment, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

The Future Of Civil Justice Reform And Empirical Legal Scholarship: A Reply, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

The Psychology Of Global Climate Change, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

In its attempt to address the threat of global climate change, society has struggled to reach a consensus regarding the need for preventive measures. Professor Rachlinski describes the threat of global climate change as a unique commons dilemma and explains that various psychological phenomena of judgment render it unlikely that society will be able to respond effectively to the threat. After considering the effects of biased assimilation, loss aversion, and other psychological processes, the author explains that an innovative approach is necessary to properly address the dilemma of global climate change.

Specifically, the author examines the prospect of governmental intervention …

Evidence: 1998-1999 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

Shared Constitutional Interpretation, Michael C. Dorf, Barry Friedman

Cornell Law Faculty Publications

In United States v. Dickerson the Supreme Court reaffirmed its decision in Miranda v. Arizona, stating that it was a 'constitutional decision' and, thus, not subject to congressional overruling. At the same time, the Dickerson Court reiterated Miranda's "invitation" to "Congress and the States to . . . search for . . . other procedures which are at least as effective" as the Court's prescribed warnings in protecting the suspect's rights.

This article uses Dickerson as a lens through which to examine the possibilities of shared constitutional interpretation. After all, the Court that decided Dickerson has, in recent years, been …

What Does The Second Amendment Mean Today?, Michael C. Dorf

Cornell Law Faculty Publications

A growing body of scholarship argues that the Second Amendment protects a right of individuals to possess firearms, regardless of whether those individuals are organized in state militias. Proponents of the individual right view do not merely disagree with those who champion the competing view that the Second Amendment poses few if any obstacles to most forms of gun control legislation by the state or federal governments. They appear to believe that the Second Amendment has been subject to uniquely shabby treatment by the courts and, until recently, academic commentators.

This Article argues that the Second Amendment has not been …

Courts, Reasons, And Rules, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Employment Discrimination, Stewart J. Schwab

Cornell Law Faculty Publications

This article first parses the multiple overlapping definitions of discrimination, including distinctions between group and individual discrimination and between segregation and discrimination in pay. The article then summarizes the major economic models of discrimination, particularly Becker’s taste-for-discrimination model and statistical-discrimination models, as well as sorting the status-production models. The discussion focuses on the conditions under which markets will tend to eliminate discrimination, noting that this occurs in a more limited range of situations than commonly recognized. The article next surveys the economic role of anti-discrimination laws, evaluating arguments that the law speeds the journey to a non-discriminatory equilibrium and that …

The Limits Of Behavioral Decision Theory In Legal Analysis: The Case Of Liquidated Damages, Robert A. Hillman

Cornell Law Faculty Publications

Discontent with the apparent tunnel vision of economic analysis of law's rational choice theory, legal scholars recently have turned with enthusiasm to "behavioral decision theory" (BDT) to enrich their understanding of how people make decisions and of the law's effect on human behavior. This article, for the first time, evaluates BDT's potential contribution to legal analysis by focusing on a single, important legal paradox: Despite contract law's freedom of contract paradigm, courts actively and enthusiastically police agreed damages provisions. Although the article finds an important place in legal analysis for this new discipline, the article raises and discusses several obstacles …

Redistributing Property: Natural Law, International Norms, And The Property Reforms Of The Cuban Revolution, Eduardo M. Peñalver

Cornell Law Faculty Publications

Epstein's Property, Emily Sherwin

Cornell Law Faculty Publications

In an era of skepticism about common law traditions and sensitivity to claims of distributive injustice, Richard Epstein has been an unflinching defender of private property rights. He has insisted that property rights are intelligible, and reminded us of their importance to social and economic welfare. In this paper, I shall offer what I believe is a friendly interpretation of Epstein's writings on property, and then pose some internal questions about the approach he has outlined. I begin with a quick summary of his description of property rights in an ideal legal regime.

Vouchers And Beyond: The Individual As Causative Agent In Establishment Clause Jurisprudence, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

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

Cornell Law Faculty Publications

No abstract provided.

Inbreeding In Law School Hiring: Assessing The Performance Of Faculty Hired From Within, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

This study compares the scholarly impact of inbred entry-level law school faculty members with the scholarly impact of noninbred entry-level law school faculty members. The sample includes 32 law schools and approximately 700 entry-level faculty members. By our measure of performance, scholarly impact as measured by citation frequency, inbred entry-level law school faculty members do not perform as well as noninbred entry-level faculty members.

Current Trends In Illegal Reentry Cases, Stephen W. Yale-Loehr, Rachel J. Valente

Cornell Law Faculty Publications

As the Immigration and Naturalization Service (INS) begins removing more and more aliens, a growing number are reentering illegally after their removal. Many of those reentering do not realize that by doing so they are committing a crime. The case law in this area is quite complex and fraught with constitutional considerations. This article provides an overview of the crime of illegal reentry under Immigration and Nationality Act (INA) § 276.

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 …