Law Commons^™

Exemplary Legal Writing 2016: Books Selected By Our Respectable Authorities: Five Recommendations, Femi Cadmus

Cornell Law Faculty Publications

No abstract provided.

Private Law And The Future Of Patents, Oskar Liivak

Cornell Law Faculty Publications

As it operates today, patent law does not qualify as private law and, without change, I doubt it ever will. For some, this is as it should be and any private law aspects that remain in the patent system should be purged. The basic argument is that the dominant theory of patents is just not compatible with private law and patent doctrine should reflect a pure public law theoretical basis. I agree that today's dominant patent theory is incompatible with private law principles. Yet agreeing with that inherent incompatibility does not imply that doctrine needs to be reformed. There is …

Judging The Judiciary By The Numbers: Empirical Research On Judges, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that …

Dignity Takings, Dignity Restoration: A Tort Law Perspective, Valerie P. Hans

Cornell Law Faculty Publications

Money damages can operate to restore the dignity of a person who has been injured in tort or deprived of property. A financial award or settlement conveys an acknowledgment of the wrong and signals the reestablishment of equity between defendant and plaintiff. Whether the award is seen as adequate to fully restore dignity is influenced by context, especially comparison cases. And financial compensation directly provided by the defendant holds greater promise for dignity restoration.

Putting Distribution First, Robert C. Hockett

Cornell Law Faculty Publications

It is common for normative legal theorists, economists and other policy analysts to conduct and communicate their work mainly in maximizing terms. They take the maximization of welfare, for example, or of wealth or utility, to be primary objectives of legislation and public policy. Few if any of these theorists seem to notice, however, that any time we speak explicitly of maximizing one thing, we speak implicitly of distributing other things and of equalizing yet other things. Fewer still seem to recognize that we effectively define ourselves by reference to that which we distribute and equalize. For it is in …

Inter-American Court Recognizes Elevated Status Of Trade Unions, Rejects Standing Of Corporations, Angela B. Cornell

Cornell Law Faculty Publications

The Inter-American Court was unanimous in concluding that legal entities do not have the standing to directly access the Inter-American system in a contentious process as presumptive victims. Corporations therefore will not be permitted to access the Court as victims of human rights transgressions, which the Court determined is limited to human beings, with two exceptions: trade unions and indigenous communities. Trade unions have standing as victims of human rights violations on their behalf and that of their members, but under certain limitations. This commentary focuses on the Court’s decision with regard to trade unions, but begins with a description …

Forces Of Federalism, Safety Nets, And Waivers, Edward H. Stiglitz

Cornell Law Faculty Publications

Inequality is the defining feature of our times. Many argue it calls for a policy response, yet the most obvious policy responses require legislative action. And if inequality is the defining feature of our times, partisan acrimony and gridlock are the defining features of the legislature. So being, it is worth considering what role administrative agencies, and administrative law, might play in ameliorating or exacerbating economic inequality. Here, I focus on American safety net programs, many of which are joint operations between federal administrative agencies and state governments. In this context, a central mode of bureaucratic policy innovation comes in …

Are Bank Fiduciaries Special?, Robert C. Hockett

Cornell Law Faculty Publications

A growing body of post-crisis legal and economic literature suggests that future financial crises might be averted by tinkering with the internal governance structures of banks and other financial institutions. In particular, contributors to this literature propose tightening the fiduciary duties under which officers and directors of the relevant financial institutions labor. I argue in this symposium article that such proposals are doomed to failure under all circumstances save one - namely, that under which the relevant financial institutions are in whole or in part treated as publicly owned.

The argument proceeds in two parts. I first show that the …

The Finance Franchise, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Publications

The dominant view of banks and other financial institutions is that they function primarily as intermediaries, managing flows of scarce funds from those who have accumulated them to those who have need of them and can pay for their use. This understanding pervades textbooks, scholarly writings, and policy discussions – yet it is fundamentally false as a description of how a modern financial system works. Finance today is no more primarily “intermediated” than it is pre-accumulated or scarce.

This Article challenges the outdated narrative of finance as intermediated scarce private capital and maps the basic structure and dynamics of the …

Consumer Internet Standard Form Contracts In India: A Proposal, Robert A. Hillman

Cornell Law Faculty Publications

India's burgeoning Internet commerce sector has made consumers susceptible to standard-form contracts. Due to the slim likelihood of consumers reading the terms, vendors may often draft heavy-handed terms in the contracts, thereby adversely impacting consumer interests. The Indian legal framework in this regard is inadequate. This article evaluates the existing suggestions on standard-form contracts and argues that none of them safeguard consumer interests sufficiently. Instead, based on the American Law Institutes' Principles of the Law of Software Contracts, the article proposes a disclosure approach that would benefit the interests of Indian consumers engaged in commerce on the Internet.

Donald Trump And Other Agents Of Constitutional Change, Michael C. Dorf

Cornell Law Faculty Publications

Backlash is just one of the mechanisms by which constitutions change over time, but it is arguably the most important, because constitution writers and amenders react to past evils; they institutionalize backlash. The German Constitution- especially its protection for human dignity-institutionalizes backlash against Nazism. The Fourth Amendment reflects Revolutionary-era backlash against general warrants and writs of assistance. The Reconstruction Amendments embody backlash against slavery and caste.

Even without formal text, backlash can become embedded in our constitutional understanding. For example, eventual backlash against internment of persons of Japanese ancestry inscribes at least a minimally antiracist principle in our constitutional order. …

Brother, Can You Spare A Dollar? Designing An Effective Framework For Foreign Currency Liquidity Assistance, Dan Awrey

Cornell Law Faculty Publications

The core principles of financial crisis management call upon central banks to lend freely, against good quality collateral, and at a penalty rate of interest, to solvent but illiquid banks and other financial institutions during periods of widespread panic and instability. While often taken for granted, these principles were designed for a world in which central banks have the capacity to create money denominated in the same currency as the one in which domestic banks and other financial institutions issue deposits and other short-term liabilities.

Unfortunately, this is not the world in which we live. The application of these principles …