Law Commons^™

Replacing The Presumption Against Extraterritoriality, Zachary D. Clopton

Cornell Law Faculty Publications

The presumption against extraterritoriality tells courts to read a territorial limit into statutes that are ambiguous about their geographic reach. This canon of construction has deep roots in Anglo-American law, and the U.S. Supreme Court recently reaffirmed this principle of statutory interpretation in Morrison v. National Australia Bank and Kiobel v. Royal Dutch Petroleum. Yet as explained in this Article, none of the purported justifications for the presumption against extraterritoriality hold water. Older decisions look to international law or conflict-of-laws principles, but these bodies of law have changed such that they no longer support a territorial rule. Modern courts suggest …

Unaccountable Midnight Rulemaking? A Normatively Informative Assessment, Edward H. Stiglitz

Cornell Law Faculty Publications

Under a common view, the administrative state inherits democratic legitimacy from the President, an individual who is envisioned both to control administrative agencies and to be electorally accountable. Presidents' administrations continue issuing rules, however, even after Presidents lose elections. Conventional wisdom holds that Presidents use the "midnight" period of their administrations-the period between the election and the inauguration of the next President-to issue unpopular and controversial rules. Many regard this midnight regulatory activity as democratically illegitimate. Yet we have scant evidence that presidential administrations in fact issue controversial or unpopular rules during the midnight period. In this Article, I examine …

“Private” Means To “Public” Ends: Governments As Market Actors, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Publications

Many people recognize that governments can play salutary roles in relation to markets by (a) “overseeing” market behavior from “above,” or (b) supplying foundational “rules of the game” from “below.” It is probably no accident that these widely recognized roles also sit comfortably with traditional conceptions of government and market, pursuant to which people tend categorically to distinguish between “public” and “private” spheres of activity.

There is a third form of government action that receives less attention than forms (a) and (b), however, possibly owing in part to its straddling the traditional public/private divide. We call it the “government as …

Philosophy Of Law: Reply To Critics, Andrei Marmor

Cornell Law Faculty Publications

The author addresses issues raised by commentators on his book, Philosophy of Law (2011).

Victim Gender And The Death Penalty, Caisa Elizabeth Royer, Amelia Courtney Hritz, Valerie P. Hans, Theodore Eisenberg, Martin T. Wells, John H. Blume, Sheri Lynn Johnson

Cornell Law Faculty Publications

Previous research suggests that cases involving female victims are more likely to result in death sentences. The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware. Death was sought much more for murders of either male or female white victims compared to murders of black male victims. Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases. The presence of sexual victimization, the method of killing, the relationship between the …

The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe

Cornell Law Faculty Publications

In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and focuses instead on what the stakes might be, should it turn out to be correct. It concludes that the consequences would not be as severe as many people fear.

In Search Of Core Values, W. Bradley Wendel

Cornell Law Faculty Publications

A consensus appears to have emerged among American lawyers that globalization and information technology are transforming the practice of law in fundamental ways. In particular, non-lawyers are increasingly involved in what has traditionally been defined as the practice of law. Scholars such as Richard Susskind, in the United Kingdom, and Thomas Morgan, in the United States, have hypothesized that lawyers may be going the way of wheelwrights, cordwainers or mercers (traders in fine cloths and silks), and that one day in the not-so-distant future we will consider the profession of lawyer as something to be studied historically, wonder why lawyers …

Whose Secrets?, Josh Chafetz

Cornell Law Faculty Publications

No abstract provided.

Market Collaboration: Finance, Culture, And Ethnography After Neoliberalism, Annelise Riles

Cornell Law Faculty Publications

In the wake of the disasters of March 2011, financial regulators and financial-risk management experts in Japan expressed little hope that much could be done nor did they take great interest in defining possible policy interventions. This curious response to regulatory crisis coincided with a new fascination with culturalist explanations of financial markets, on the one hand, and a resort to what I term “data politics”—a politics of intensified data collection—on the other. In this article, I analyze these developments as being exemplary of a new regulatory moment characterized by a loss of faith in both free market regulation and …

Dirty Remics, Revisited, Bradley T. Borden, David J. Reiss

Cornell Law Faculty Publications

No abstract provided.

Government Nonendorsement, Nelson Tebbe

Cornell Law Faculty Publications

What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no …

3 Housing Riddles For De Blasio, David Reiss

Cornell Law Faculty Publications

No abstract provided.

Beyond Finance: Permissible Commercial Activities Of U.S. Financial Holding Companies, Saule T. Omarova

Cornell Law Faculty Publications

!is essay explains the legal basis for, and examines public policy implications of, recent expansion of large U.S. financial holding companies’ non-financial business activities. Despite its potentially significant impact on economic growth and systemic stability, this phenomenon of financial conglomeration beyond finance remains poorly understood. Yet, any truly comprehensive and effective reform of financial services regulation must address public policy issues that arise when “too-big-to-fail” banks grow even bigger and more systemically significant by combining finance with commerce.

Becoming A Fifth Branch, William A. Birdthistle, M. Todd Henderson

Cornell Law Review

No abstract provided.

Patent Invalidity Versus Noninfringement, Roger Allan Ford

Cornell Law Review

No abstract provided.

Reframing Commodity Pools In The Wake Of Dodd-Frank And The Volcker Rule, Jenny Liu

Cornell Law Review

No abstract provided.

Finding Federalism In Waiver Of Personal Jurisdiction: Federalism And Individual Rights In The Second Circuit, Joshua M. Wesneski

Cornell Law Review

No abstract provided.

Private Environmental Governance, Michael P. Vandenbergh

Cornell Law Review

No abstract provided.

The Merchants Of Wall Street: Banking, Commerce, And Commodities, Saule T. Omarova

Cornell Law Faculty Publications

This Article explores the legal, regulatory, policy, and theoretical aspects of an ongoing transformation of large U.S. banking organizations into global merchants of physical commodities and energy. In the absence of detailed and reliable information, it is difficult to draw definitive conclusions as to the social efficiency and desirability of allowing this transformation to continue. What we can already ascertain about U.S. financial institutions' physical commodity assets and activities, however, raises potentially serious public policy concerns that must be addressed through a fully-informed public deliberation. Even if big U.S. FHCs were, in fact, to scale down their physical commodity operations …

Is New Governance The Ideal Architecture For Global Financial Regulation?, Annelise Riles

Cornell Law Faculty Publications

A central challenge for international financial regulatory systems today is how to manage the impact of global systemically important financial institutions (G-SIFIs) on the global economy, given the interconnected and pluralistic nature of regulatory regimes. This paper focuses on the Financial Stability Board (FSB) and proposes a new research agenda for the FSB’s emerging regulatory forms. In particular, it examines the regulatory architecture of the New Governance (NG), a variety of approaches that are supposed to be more reflexive, collaborative, and experimental than traditional forms of governance. A preliminary conclusion is that NG tools may be effective in resolving some …

Meaning And Belief In Constitutional Interpretation, Andrei Marmor

Cornell Law Faculty Publications

The distinction between a concept and its different conceptions plays a prominent role in debates about constitutional interpretation. Proponents of a dynamic reading of the Constitution-espousing interpretation of constitutional concepts according to their contemporary understandings typically rely on the idea that the Constitution entrenches only the general concepts it deploys, without authoritatively favoring any particular conception of them-specifically, without favoring the particular conception of the relevant concept that the framers of the Constitution may have had in mind. Originalists argue, to the contrary, that fidelity to the Constitution requires an understanding of its provisions according to the particular conception of …

Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, Anthony J. Sebok, W. Bradley Wendel

Cornell Law Faculty Publications

Litigation investment, which is also known as “litigation finance” or “third party litigation finance,” has grown in importance in many common law and civilian legal systems and has come to the United States as well. While many questions remain about both legality and social desirability of litigation finance, this paper starts with the assumption that the practice will become widespread in the US and explores the obligations of the parties to the litigation finance contract.

The first part of the article uses an example to illustrate the risks imposed by one of the other party on the other which should …

Mandated Mediocrity: Modernizing Education Law By Reducing Mandates And Increasing Professional Discretion, Shavar D. Jeffries

Cornell Journal of Law and Public Policy

No abstract provided.

When Standards Collide: How The Federal Death Penalty Fails The Supreme Court's Eighth Amendment Evolving Standards Of Decency Test When Applied To Puerto Rican Federal Capital Defendants, Cristina M. Quinones-Betancourt

Cornell Journal of Law and Public Policy

No abstract provided.

Congressional Disclosure Of Time Spent Fundraising, Brent Ferguson

Cornell Journal of Law and Public Policy

No abstract provided.

The Jurisdiction Of The D.C. Circuit, Eric M. Fraser, David K. Kessler, Matthew J. B Lawrence, Stephen A. Calhoun

Cornell Journal of Law and Public Policy

No abstract provided.

Economic Theory Lost In Translation: Will Behavioral Economics Reshape The Compelled Commercial Speech Doctrine, Kyle Rozema

Cornell Journal of Law and Public Policy

No abstract provided.

Deferred/Non Prosecution Agreements: Effective Tools To Combat Corporate Crime, Michael Yangming Xiao

Cornell Journal of Law and Public Policy

No abstract provided.

Large-Sized Soda Ban As An Alternative To Soda Tax, Hery Min

Cornell Journal of Law and Public Policy

No abstract provided.

Targeting And The Concept Of Intent, Jens David Ohlin

Cornell Law Faculty Publications

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively …