Law Commons^™

Complexity, Innovation, And The Regulation Of Modern Financial Markets, Dan Awrey

Cornell Law Faculty Publications

The intellectual origins of the global financial crisis (GFC) can be traced back to blind spots emanating from within conventional financial theory. These blind spots are distorted reflections of the perfect market assumptions underpinning the canonical theories of financial economics: modern portfolio theory, the Modigliani and Miller capital structure irrelevancy principle, the capital asset pricing model and, perhaps most importantly, the efficient market hypothesis. In the decades leading up to the GFC, these assumptions were transformed from empirically (con)testable propositions into the central articles of faith of the ideology of modern finance: the foundations of a widely held belief in …

Reinventing Homeownership: A Compendium Of Concepts To Consider, Denise Gabel, David J. Reiss

Cornell Law Faculty Publications

This policy brief presents a compendium of innovative mortgage products that challenge the dominant mortgage product of the 20th Century, the high down payment, thirty year amortization, fixed interest rate mortgage. These innovative products do not, however, go to the other extreme like the subprime and Alt-A mortgages of the early 21st Century with attributes such as low down payments, balloon payments and quick to adjust interest rates. Rather, they take into account demographic trends, changes in the workplace and existing barriers to homeownership to structure new products for contemporary households. These innovative products take on the big questions in …

License To Deal: Mandatory Approval Of Complex Financial Products, Saule T. Omarova

Cornell Law Faculty Publications

This Article explores the possibility of creating a system of mandatory pre-approval of complex financial products as an ex ante solution to the problem of systemic risk containment. Building on the concept of regulatory precaution borrowed from environmental and health law, and elements of pre-CFMA regulation of commodity futures, the Article outlines the broad contours of a new licensing scheme that would place the burden of proving social and economic utility of complex financial instruments on the intermediaries that structure and market them. Fundamentally a thought experiment, this proposal seeks to enrich the current policy debate by expanding the range …

Targeting Co-Belligerents, Jens David Ohlin

Cornell Law Faculty Working Papers

One of the central controversies of the targeted killing debate is the question of who can be targeted for a summary killing. The following chapter employs a novel normative framework: how to link an individual terrorist with a non-state group that threatens a nation-state. Six linking principles are catalogued and analyzed, including direct participation, co-belligerency, membership, control, complicity and conspiracy. The analysis produces counter-intuitive results, especially for civil libertarians who usually eschew status principles in favor of conduct principles. The concept of membership, a status concept central to international humanitarian law, is ideally suited to situations, like targeted killings, that …

Pluralism And Property, Gregory S. Alexander

Cornell Law Faculty Publications

Welfarism is no longer the only game in the town of property theory. In the last several years a number of property scholars have begun developing various versions of a general vision of property and ownership that, although consistent with welfarism in some respects, purports to provide an alternative to the still-dominant welfarist account. This alternative proceeds under different labels, including “virtue theory” and “progressive,” but for convenience purposes let us call them collectively “social obligation” theories. For what they have in common is a desire to correct the common but mistaken notion that ownership is solely about rights. These …

Property's Memories, Eduardo M. Peñalver

Cornell Law Faculty Publications

This short essay, presented at Fordham's conference on the social functions of property (and in an earlier form at a conference on law and memory at USC), explores the relationship between property and memory. It distinguishes between property as the object of memory ("memory of property") and property as a medium of memory ("memory in property"). With respect to both kinds of memory, the common law expresses a great deal of ambivalence towards memory. Unlimited memory is no less dangerous to a system of property than it is to an individual’s ability to think. Recent reforms of adverse possession, the …

To Dollars From Sense: Qualitative To Quantitative Translation In Jury Damage Awards, Valerie P. Hans, Valerie F. Reyna

Cornell Law Faculty Publications

This article offers a new multistage account of jury damage award decision making. Drawing on psychological and economic research on judgment, decision making, and numeracy, the model posits that jurors first make a categorical gist judgment that money damages are warranted, and then make an ordinal gist judgment ranking the damages deserved as low, medium, or high. They then construct numbers that fit the gist of the appropriate magnitude. The article employs data from jury decision-making research to explore the plausibility of the model.

Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Cornell Law Faculty Publications

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Unwell: Indiana V. Edwards And The Fate Of Mentally Ill Pro Se Defendants, John H. Blume, Morgan J. Clark

Cornell Journal of Law and Public Policy

No abstract provided.

Radicalism And The Modern State: A Critique Of Republican Nostalgia, William E. Forbath

Cornell Journal of Law and Public Policy

No abstract provided.

Lost Causes: Comment On Aziz Rana, The Two Faces Of American Freedom, Nancy L. Rosenblum

Cornell Journal of Law and Public Policy

No abstract provided.

The Abortion Informed Consent Debate: More Light, Less Heat, Nadia N. Sawicki

Cornell Journal of Law and Public Policy

No abstract provided.

A Parent’S Apparent Authority: Why Intergenerational Coresidence Requires A Reassessment Of Parental Consent To Search Adult Children’S Bedrooms, Hillary B. Farber

Cornell Journal of Law and Public Policy

No abstract provided.

The Forgotten Employee Benefit Crisis: Multiemployer Benefit Plans On The Brink, Paul M. Secunda

Cornell Journal of Law and Public Policy

No abstract provided.

Comments On Aziz Rana, The Two Faces Of American Freedom, Richard Bensel

Cornell Journal of Law and Public Policy

No abstract provided.

The Two Faces Of American Freedom: A Reply, Aziz Rana

Cornell Journal of Law and Public Policy

No abstract provided.

Capture In Financial Regulation: Can We Channel It Toward The Common Good, Lawrence G. Baxter

Cornell Journal of Law and Public Policy

No abstract provided.

In The Federal Government We Trust - Federal Funding For Tribal Water Rights Settlements And The Taos Pueblo Indian Water Rights Settlement Act, Erin B. Agee

Cornell Journal of Law and Public Policy

No abstract provided.

Gamestopped: Vernor V. Autodesk And The Future Of Resale, Charles Lopresto

Cornell Journal of Law and Public Policy

No abstract provided.

Courts Resisting Courts: Lessons From The Inter-American Court’S Struggle To Enforce Human Rights, Alexandra Huneeus

Cornell International Law Journal

Courts Resisting Courts explores a critical tension in international law: the relationship between international and national courts. Leading theorists assume that autonomous national courts heighten compliance with international human rights regimes. This article challenges this orthodoxy. It focuses on the Inter-American Court of Human Rights, an international court unique in that it orders far-reaching, innovative remedies that invoke action not only by the State's executive, but also the legislature and local courts. Original data reveals that national courts, more than any other branch of government, shirk the Court's rulings. This article turns this insight into a prescription for gaining greater …

Cutting The Gordian Knot: How And Why The United Nations Should Vest The International Court Of Justice With Referral Jurisdiction, Andrew Strauss

Cornell International Law Journal

The International Court of Justice the global system's oldest and most venerable tribunal has failed to meet its full potential. This is in large measure due to the requirement that the Court may only assert jurisdiction over states with their consent, which is often withheld. To help correct for this failure, this article proposes that the Court be given a referral jurisdiction. Referral jurisdiction would empower the Court to issue advisory opinions on interstate disputes without the requirement of state consent. Standing in the way of nonconsent-based jurisdiction, however, is the problem of the Gordian Knot: The world's most powerful …

Does Access To Justice Improve Compliance With Human Rights Norms - An Empirical Study, Samuel P. Baumgartner

Cornell International Law Journal

No abstract provided.

A Conflict Of Interests: Privacy, Truth, And Compulsory Dna Testing For Argentina’S Children Of The Disappeared, Elizabeth B. Ludwin King

Cornell International Law Journal

From 1976 to 1983, Argentina was ruled by a military dictatorship that disappeared an estimated 30,000 suspected subversives, including parents of young children and pregnant women. Their children, either disappeared along with their parents or born in clandestine detention centers, were then taken from their parents and adopted, often by couples who were sympathetic with the government and knew of the children's origins. This Article addresses Argentina's newest effort to identify these now-adult children: compulsory DNA testing in cases where the raising parents are suspected of having knowingly adopted their children illegally. It argues that, although the mandatory testing permissibly …

Consumer Protection In Choice Of Law, Giesela Ruhl

Cornell International Law Journal

No abstract provided.

Corporate Civil Liability Under The Alien Tort Statute: Exploring Its Possibility And Jurisdictional Limitations, Matthew E. Danforth

Cornell International Law Journal

No abstract provided.

Unmanned, Unprecedented, And Unresolved: The Status Of American Drone Strikes In Pakistan Under International Law, Andrew C. Orr

Cornell International Law Journal

No abstract provided.

Law On The Books Vs. Law In Action: Under-Enforcement Of Morocco's Reformed 2004 Family Law, The Moudawana, Ann Marie Eisenberg

Cornell Law Library Cantwell Prize for Exemplary Student Research Papers

This Note focuses on women’s family law rights in Morocco, a country located in northwestern Africa, and often regarded as the western boundary of the Muslim-Arab world. Significantly, despite Morocco’s shared roots with nations such as Saudi Arabia in culture, religion, and language, the Moroccan government has interpreted similar traditions to yield a starkly different stance: gender equality is desirable. Morocco’s new Moudawana, the 2004 legislation on family law with provisions largely derived from Islamic sources, confers unprecedented rights on Moroccan women.

Part I of this Note evaluates the Moudawana in light of its break with traditional Shari’a, alongside its …

An Evolving Foreclosure Landscape: The Ibanez Case And Beyond, Peter Pitegoff, Laura S. Underkuffler

Cornell Law Faculty Publications

Mortgage securitization, subprime lending, a persistently weak housing market, and an explosion of residential mortgage defaults – today’s homeowners and banks face a new and challenging landscape. Recently, courts in several states have issued decisions that alter the terrain for mortgage foreclosures. In Massachusetts, New Jersey, and New York, among other states, courts have dismissed foreclosure actions on the basis of what might seem to be highly technical deficiencies in the pleading or proof. The most well-known – and controversial – in this cluster of cases is U.S. Bank National Ass’n v. Ibanez, decided by the Supreme Judicial Court of …

Unwell: Indiana V. Edwards And The Fate Of Mentally Ill Pro Se Defendants, John H. Blume, Morgan J. Clark

Cornell Law Faculty Publications

Same-Sex Marriage, Second-Class Citizenship, And Law's Social Meanings, Michael C. Dorf

Cornell Law Faculty Publications

Government acts, statements, and symbols that carry the social meaning of second-class citizenship may, as a consequence of that fact, violate the Establishment Clause or the constitutional requirement of equal protection. Yet social meaning is often contested. Do laws permitting same-sex couples to form civil unions but not to enter into marriage convey the social meaning that gays and lesbians are second-class citizens? Do official displays of the Confederate battle flag unconstitutionally convey support for slavery and white supremacy? When public schools teach evolution but not creationism, do they show disrespect for creationists? Different audiences reach different conclusions about the …