Law Commons^™

The Case For Reforming The Program's Spouse Benefits While "Saving Social Security", Peter W. Martin

Cornell Law Faculty Working Papers

The Social Security Act currently provides secondary benefits to the wives or widows of covered workers who retire, become disabled, or die. To qualify, a woman must have been married to the worker for a short period and must be old (sixty-two, dropping to sixty in the case of a widow, fifty in the case of a disabled widow) or caring for children under sixteen. If a wife’s or widow’s primary retired-worker or disability benefits equal or exceed her secondary benefit entitlement, she receives only the primary benefits. However, if her secondary benefit amount is greater she receives both her …

Plea Bargaining And The Right To The Effective Assistance Of Counsel: Where The Rubber Hits The Road In Capital Cases, John H. Blume

Cornell Law Faculty Publications

No abstract provided.

Knowledge In The People: Rethinking "Value" In Public Rulemaking Participation, Cynthia R. Farina, Dmitry Epstein, Josiah Heidt, Mary J. Newhart

Cornell e-Rulemaking Initiative Publications

A companion piece to Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, this Essay continues to examine the nature and value of broader public participation in rulemaking. Here, we argue that rulemaking is a “community of practice,” with distinctive forms of argumentation and methods of reasoning that both reflect and embody craft knowledge. Rulemaking newcomers are outside this community of practice: Even when they are reasonably informed about the legal and policy aspects of the agency’s proposal, their participation differs in kind and form from that of sophisticated commenters. From observing the actual behavior of rulemaking newcomers …

Beneficial Ownership And The Remic Classification Rules, Bradley T. Borden, David J. Reiss

Cornell Law Faculty Publications

REMICs are securitized pools of mortgages that qualify for special flow-through taxation. To qualify for flow-through tax treatment, the pool must satisfy several requirements. An intended REMIC that fails to satisfy those requirements will likely be taxed as a corporation and payments made to holders of interests in a failed REMIC will likely be nondeductible dividend payments, subjecting the REMIC to significant tax and penalties. Such tax and penalties will cause beneficial interests in the pool to lose value and frustrate investors who relied upon REMIC classification as an incentive to purchase interests. Thus, tax classification is critical to REMICs …

An Uneasy Justification For Prosecutorial Abdication In The Subprime Industry, Bradley T. Borden, David J. Reiss

Cornell Law Faculty Publications

No abstract provided.

Building-Related Renewable Energy And The Case Of 360 State Street, Sara C. Bronin

Cornell Law Faculty Publications

This Article argues that a well-conceived policy approach to building-related renewable energy (“BRRE”) — that is, renewable energy incorporated into inhabited structures and used by those structures’ occupants — could transform the way we produce and consume energy by maximizing efficiency while simultaneously minimizing energy sprawl. The vast majority of Americans favor renewable energy, at least in concept. Yet private property owners still face significant obstacles in trying to incorporate renewable energy into their projects. This Article analyzes barriers faced by the project team for 360 State Street, an award-winning, mixed-use LEED® Platinum building in downtown New Haven, Connecticut. Among …

Muslims And Religious Liberty In The Era Of 9/11: Empirical Evidence From The Federal Courts, Gregory C. Sisk, Michael Heise

Cornell Law Faculty Publications

In our continuing empirical study of religious-liberty decisions in the federal courts, American Muslims were at a distinct and substantial disadvantage in raising free exercise or accommodation claims between 1996 and 2005. With other variables held constant, the likelihood of success for non-Muslim claimants in Religious Free Exercise claims was 38%, while the probability of success for Muslim claimants fell to 22% (with an even higher disparity among court of appeals judges). In sum, Muslim claimants enjoyed only about half the chance to receive accommodation of their religious beliefs and practices as did claimants from other religious communities.

Drawing on …

Spandrel Or Frankenstein's Monster? The Vices And Virtues Of Retrofitting In American Law, Michael C. Dorf

Cornell Law Faculty Publications

Ancient mythology, literary fiction, and modern science fiction films all recount a similar cautionary tale: human ingenuity gives rise to a powerful invention, but through human fallibility and, in some tellings, venality, the invention becomes a monster and turns on its creators. Perhaps the most famous example is Mary Shelley's Frankenstein, in which Dr. Frankenstein's attempt to fashion a living man from the dead remains of others succeeds, only then to go horribly awry. Such stories are timeless because they warn of the dangers of indelible features of human nature: hubris and short-sightedness. Recent large-scale catastrophes such as the 2010 …

The Legal Revolution In American Women’S Rights—And The Problems That Remain, Sonia Pressman Fuentes

Avon Global Center for Women and Justice and Dorothea S. Clarke Program in Feminist Jurisprudence

No abstract provided.

"They Are Destroying Our Futures": Sexual Violence Against Girls In Zambia's Schools, Women And Law In Southern Africa Trust-Zambia, Cornell Law School. Avon Global Center For Women And Justice, Cornell Law School. International Human Rights Clinic

Avon Global Center for Women and Justice and Dorothea S. Clarke Program in Feminist Jurisprudence

This report examines the problem of sexual violence against girls in Zambian schools. In Zambia, many girls are raped, sexually abused, harassed, and assaulted by teachers and male classmates. They are also subjected to sexual harassment and attack while travelling to and from school. Such abuse is a devastating and often overlooked manifestation of the gender-based violence that occurs in numerous settings in Zambia and other countries throughout the world.

This report explores these issues from an international human rights perspective, drawing upon extensive desk research and interviews with 105 schoolgirls and many other stakeholders in Zambia’s Lusaka Province. The …

Is Complementarity The Right Approach For The International Criminal Court’S Crime Of Aggression - Considering The Problem Of Overzealous National Court Prosecutions, Jennifer Trahan

Cornell International Law Journal

At the first Review Conference on the Rome Statute of the International Criminal Court (ICC), the Assembly of States Parties to the ICC adopted an amendment defining the crime of aggression and conditions for the ICC's exercise of jurisdiction over the crime. Because the definition will be incorporated into the existing framework of the Rome Statute, the crime will be subject to the "complementarity" provision contained therein. That provision specifies that a case is "inadmissible" before the ICC if there are national investigations and/or prosecutions, unless the state demonstrates an unwillingness or inability to investigate or prosecute the case. By …

When The Emperor Has No Clothes Iii: Personnel Policies And Conflicts Of Interest In Prosecutors’ Offices, Carrie Leonetti

Cornell Journal of Law and Public Policy

No abstract provided.

Ungating Suburbia: Property Rights, Political Participation, And Common Interest Communities, Ross Thomas

Cornell Journal of Law and Public Policy

No abstract provided.

Pimps, Johns, And Juvenile Prostitutes: Is New York Doing Enough To Combat The Commercial Sexual Exploitation Of Children, Marihug Cedeno

Cornell Journal of Law and Public Policy

No abstract provided.

Defective Information: Should Information Be A Product Subject To Products Liability Claims, Joseph L. Reutiman

Cornell Journal of Law and Public Policy

No abstract provided.

Bad Juror Lists And The Prosecutor’S Duty To Disclose, Ira P. Robbins

Cornell Journal of Law and Public Policy

No abstract provided.

Promises, Policies, And Principles: The Supreme Court And Contractual Obligation In Labor Relations, Daniel P. O'Gorman

Cornell Journal of Law and Public Policy

No abstract provided.

The Icsid Under Siege, Leon E. Trakman

Cornell International Law Journal

Rights-based processes, including binding arbitration and traditional court trials, have limited remedies and may not address the full range of interests and needs that the parties may have. Disputes resolved on the basis of power (e.g. through gunboat diplomacy, or at the extreme, violence and war) weight the outcome in favour of the party with the most leverage, status and resources, but this may be costly on the relationships involved and may result in failure to vindicate rights.(1)

The Puzzling Non-Consequences Of Societal Distrust Of Courts: Explaining The Use Of Russian Courts, Kathryn Hendley

Cornell International Law Journal

Russians' lack of trust in courts as an institution has been repeatedly documented through public opinion polling. Yet the caseload data show a steady increase in the use of courts by both individuals and firms in Russia. But these data cannot explain why Russians choose to use the courts. The Article makes use of two publicly available datasets grounded in representative surveys of Russian citizens and firms to investigate this puzzle. The existing literature assumes that the lack of legitimacy of courts in Russia forestalls use. While confirming the societal disdain for courts, the analysis reveals that this attitude has …

Leahy Law: Congressional Failure, Executive Overreach, And The Consequences, The , Nathanael Tenorio Miller

Cornell International Law Journal

No abstract provided.

Too Big To Fail - Towards A Sovereign Bankruptcy Regime, Davy V. H. Nguyen

Cornell International Law Journal

No abstract provided.

Incompetent Drafting And Complex Laws: Automatically Waiving Set-Aside Of Foreign Arbitration Awards In The United States, Tiina E. Vaisanen

Cornell International Law Journal

No abstract provided.

The Delaware Death Penalty: An Empirical Study, Sheri Johnson, John H. Blume, Theodore Eisenberg, Valerie P. Hans, Martin T. Wells

Cornell Law Faculty Publications

For the last five years, we have conducted an empirical study of the “modern era” of capital punishment in Delaware. By “modern era,” we refer to the time period after the Supreme Court’s 1972 decision in Furman v.Georgia, which invalidated all then-existing state death penalty regimes. Some readers might ask, “Why Delaware?” They might observe that it is a small state and is not a significant national player in terms of death sentences imposed or death row inmates executed. While both are true, several features of Delaware’s capital punishment system intrigue us. First, Delaware has a high death sentencing rate. …

It Takes A Village: Municipal Condemnation Proceedings And Public/Private Partnerships For Mortgage Loan Modification, Value Preservation, And Local Economic Recovery, Robert C. Hockett

Cornell Law Faculty Publications

Respected real estate analysts forecast that the U.S. is now poised to experience a renewed round of home mortgage foreclosures over the coming six years. Up to eleven million underwater mortgages will be affected. Neither our families, our neighborhoods, nor our state and national economies can bear a resumption of crisis on this order of magnitude.

I argue that ongoing and self-worsening slump in the primary and secondary mortgage markets is rooted in a host of recursive collective action challenges structurally akin to those that brought on the real estate bubble and bust in the first place. Collective action problems …

Not Your Parents' Law Library: A Tale Of Two Academic Law Libraries, Julian Aiken, Femi Cadmus, Fred Shapiro

Cornell Law Faculty Publications

As academic law libraries continue to face the inevitability of a rapidly changing landscape which includes a new breed of digital users with sophisticated technological needs, it remains to be seen what libraries will look like in years to come. It is certain that libraries as we know them today will have changed, but to what extent? An ability to remain adaptable and to anticipate the evolving needs of users in a dynamic environment will continue to be key for libraries to remain relevant, and even to survive, in the 21st century; vital to this endeavor will also be an …

Consumer Protection Out Of The Shadows Of Shadow Banking: The Role Of The Consumer Financial Protection Bureau, David J. Reiss

Cornell Law Faculty Publications

Consumer protection remains the stepchild of financial regulation. Notwithstanding the fact that the economic doldrums we find ourselves in originated in the under-regulated subprime mortgage sector, relatively few academic commentators focus on the role that consumer protection can play in reducing such risks as well as in restoring the balance between consumer and producer in the financial markets. This essay suggests that consumer protection regulation has an important role to play in the regulatory structure of the shadow banking sector.

This essay does four things. First, it describes the role of shadow banking in the residential mortgage market—the shadow mortgage …

How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The Debt Ceiling Standoff, Neil H. Buchanan, Michael C. Dorf

Cornell Law Faculty Publications

The federal statute known as the “debt ceiling” limits total borrowing by the United States. Congress has repeatedly raised the ceiling to authorize necessary borrowing, but a political standoff in 2011 nearly made it impossible to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling, while others responded that such borrowing would violate the separation of powers and therefore that the president should refuse to spend appropriated funds.

This Article analyzes the choice the president nearly faced in summer 2011, and which he or a successor …

Eminently Reasonable, David J. Reiss

Cornell Law Faculty Working Papers

Using the power of eminent domain to restructure underwater mortgages is constitutional, beneficial and administratively feasible.

Comment On The Use Of Eminent Domain To Restructure Performing Loans, David J. Reiss

Cornell Law Faculty Working Papers

There has been a lot of fear-mongering by financial industry trade groups over the widespread use of eminent domain to residential mortgages. While there may be legitimate business reasons to oppose its use, its inconsistency with Takings jurisprudence should not be one of them. To date, the federal government’s responses to the current crisis in the housing markets have been at cross purposes, half-hearted and self-defeating. So it is not surprising that local governments are attempting to fashion solutions to the problem with the tools at their disposal. Courts should, and likely will, give these democratically-implemented and constitutionally-sound solutions a …

Piracy Prosecutions In National Courts, Maggie Gardner

Cornell Law Faculty Publications

At least for the time being, the international community must rely on national courts to prosecute modern-day pirates. The first wave of domestic piracy prosecutions suggests, however, that domestic courts have yet to achieve the necessary consistency and expertise in resolving key questions of international law in these cases. This article evaluates how courts trying modern-day pirates have addressed common questions of international law regarding the exercise of universal jurisdiction, the elements of the crime of piracy, and the principle of nullum crimen sine lege. In doing so, it evaluates five decisions issued in 2010 by courts in Kenya, the …