Law Commons^™

A Third Way: The Presidential Nonsigning Statement, Ross A. Wilson

Cornell Law Review

No abstract provided.

Double Jeopardy As A Limit On Punishment, Carissa Byrne Hessick, F. Andrew Hessick

Cornell Law Review

No abstract provided.

Curtailing Copycat Couture: The Merits Of The Innovative Design Protection And Piracy Prevention Act And A Licensing Scheme For The Fashion Industry, Aya Eguchi

Cornell Law Review

No abstract provided.

Foreign Citizens In Transnational Class Actions, Linda Sandstrom Simard, Jay Tidmarsh

Cornell Law Review

No abstract provided.

Langdell And The Leviathan: Improving The First-Year Law School Curriculum By Incorporating Moby-Dick, Gary D. Finley

Cornell Law Review

No abstract provided.

The Origins, Nature, And Promise Of Empirical Legal Studies And A Response To Concerns, Theodore Eisenberg

Cornell Law Faculty Publications

This Article describes the origins of three movements in legal academia: empirical legal studies (ELS), law and society, and law and economics. It then quantifies the distribution across scholarly fields (for example, economics and psychology) of authors in these movements’ journals and reports the impact of the movements’ scholarly journals. By focusing on two leading law and economics journals, this Article also explores the effect of a journal being centered in law schools rather than in a social science discipline. It suggests that ELS has achieved rapid growth and impact within the academic legal community because of (1) its association …

Wall Street As Community Of Fate: Toward Financial Industry Self-Regulation, Saule T. Omarova

Cornell Law Faculty Publications

This Article proposes an approach to regulatory design that aims to create structural incentives for the emergence of a new model of embedded self-regulation in the financial industry. Without a doubt, the ideas laid out in this Article are more of a thought experiment than a polished set of fully developed regulatory proposals. These ideas and suggestions need a great deal of additional thought and a deeper, more granular and rigorous analysis of their potential consequences, benefits, and costs. Moreover, this Article explores only how to create conditions conducive to the emergence of comprehensive industry self-regulation that is embedded in …

Responses To The Ten Questions, Aziz Rana

Cornell Law Faculty Publications

This essay responds to a question posed by the William Mitchell Law Review for its annual national security issue: Has Obama Improved Bush's National Security Policies? I maintain that Obama Administration practices have been marked by striking continuities with those of the previous Administration. I then attempt to explain these continuities by discussing how American policymakers across the political spectrum share basic assumptions about the concept of national security and the need for an aggressive and interventionist foreign policy.

Russia & Legal Harmonization: An Historical Inquiry Into Ip Reform As Global Convergence And Resistance, Boris N. Mamlyuk

Cornell Law Faculty Publications

This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with an examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence, and tension between state ideology, positive law, and "law in action." The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has emerged as one of the largest hurdles for Russia's prolonged accession to the World Trade Organization (WTO), these historical precedents may help explain Russia's apparent theoretical and political disconnect from the WTO. If Russian policymakers …

Sandbagging: Default Rules And Acquisition Agreements, Charles K. Whitehead

Cornell Law Faculty Publications

In the M&A world, a buyer "sandbags" a seller when, knowing the seller has materially breached a warranty, it closes the deal and then asserts a post-closing claim. Traditionally, the buyer must have relied on the warranty, without knowledge of the breach, in order to prevail. The modern trend, with some exceptions, permits the buyer to sue without regard to knowledge. Parties, in both cases, can contract around the default rule--so that the default rule should affect how acquisition agreements are structured. Yet, a survey of publicly available deals, from July 2007 to June 2011, reveals that--regardless of default rule--roughly …

Should Law Schools Teach Professional Duties, Professional Virtues, Or Something Else? A Critique Of The Carnegie Report On Educating Lawyers, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

African Customary Law, Customs, And Women's Rights, Muna Ndulo

Cornell Law Faculty Publications

The sources of law in most African countries are customary law, the common law and legislation both colonial and post-independence. In a typical African country, the great majority of the people conduct their personal activities in accordance with and subject to customary law. Customary law has great impact in the area of personal law in regard to matters such as marriage, inheritance and traditional authority, and because it developed in an era dominated by patriarchy some of its norms conflict with human rights norms guaranteeing equality between men and women. While recognizing the role of legislation in reform, it is …

Class Certification’S Preclusive Effects, Kevin M. Clermont

Cornell Law Faculty Publications

In September 2010, the Supreme Court granted certiorari in the controversial Baycol litigation. The central question will be whether, subsequent to a denial of class certification, preclusion can prevent an absentee from seeking to certify another class action on a similar claim. This Essay answers that question in the affirmative, while warning that the preclusion is very limited in scope. It arrives at this answer by analogizing to the more established doctrine of jurisdiction to determine no jurisdiction: if a court’s finding of no jurisdiction over the subject matter or the person can preclude, then a finding of no authority …

Life, Death, And Neuroimaging: The Advantages And Disadvantages Of The Defense's Use Of Neuroimages In Capital Cases - Lessons From The Front, John H. Blume, Emily C. Paavola

Cornell Law Faculty Publications

The use of neuroimaging in capital cases has become increasingly common. An informal survey of cases produced over one hundred opinions from reported decisions alone discussing the use of computed tomography (CT) scanning, magnetic resonance imaging (MRI), functional MRI, positron emission tomography (PET) scans, single-photon emission computed tomography (SPECT) scans, and similar technology in capital cases. This article gives practical advice to defense counsel considering the use of neuroimaging in a capital case. We discuss how, in the right case, this technology can be a valuable investigative tool used to produce an important component of a successful mitigation story. However, …

Bowman Lives: The Extraterritorial Application Of U.S. Criminal Law After Morrison V. National Australia Bank, Zachary D. Clopton

Cornell Law Faculty Publications

No abstract provided.

Convergences And Divergences In International Legal Norms On Migrant Labor, Chantal Thomas

Cornell Law Faculty Publications

This essay will argue that even where disparate treaties converge doctrinally, they may diverge normatively and that normative divergence may be significant in its own right. Section I of this essay seeks to chart out an initial such analysis, conducting a concise comparison of particular rules affecting migrant workers from different realms of international law. Section I concludes with both a graphic representation of doctrinal convergences and divergences, and a further discussion the doctrinal relationships among treaties as elucidated through consideration of hypothetical legal disputes.

Section II considers the normative implications of divergent rule systems. In particular, Section II raises …

Joint Intentions To Commit International Crimes, Jens David Ohlin

Cornell Law Faculty Publications

The following article is an attempt to provide a coherent theory that international tribunals may use to ground the imposition of vicarious liability for collective crimes. Currently, the case law and the literature is focused on a debate between the Joint Criminal Enterprise (JCE) doctrine applied by the ICTY and the co-perpetration doctrine applied by the ICC, which defines co-perpetrators as those who have joint control over the collective crime. The latter doctrine, influenced by German criminal law theory, has recently won many converts, both in The Hague and in the Academy, because it allegedly avoids many of the pitfalls …

Destructive Coordination, Charles K. Whitehead

Cornell Law Faculty Publications

An important goal of financial risk regulation is promoting coordination. Law's coordinating function minimizes costly conflict and encourages greater uniformity among market participants. Likewise, privately developed market standards, such as standard-form contracts and rules incorporated into widely-used vendor technology systems, help to lower transaction costs partly by increasing coordination.

By contrast, much of financial economics is premised on a world without coordination. Basic tools used to manage financial risk presume that changes in asset prices follow a random walk and individuals buy and sell assets independently. Thus, a bedrock premise of traditional risk management is that a portfolio manager’s actions …

Reconsidering Trials In Absentia At The Special Tribunal For Lebanon: An Application Of The Tribunal's Early Jurisprudence, Maggie Gardner

Cornell Law Faculty Publications

Since Nuremburg, no individual has been prosecuted in an international or internationalized court entirely in his or her absence. That may soon change. The Special Tribunal for Lebanon, which is empowered to try defendants in absentia, has now confirmed its first indictment. While its trial in absentia procedures were met with concern and criticism from some quarters when they were first announced, reconsideration is warranted in light of subsequent judicial developments. The judges of the Special Tribunal for Lebanon have now established in their preliminary decisions an interpretive approach to the Tribunal’s Statute that is adamantly purposive. This purposive approach …

The Psychological Foundations Of Behavioral Law And Economics, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Over the past decade, psychological research has enjoyed a rapidly expanding influence on legal scholarship. This expansion has established a new field—“Behavioral Law and Economics” (BLE). BLE’s principal insight is that human behavior commonly deviates from the predictions of rational choice theory in the marketplace, the election booth, and the courtroom. Because these deviations are predictable, and often harmful, legal rules can be crafted to reduce their undesirable influence. Ironically, BLE seldom recognizes that its intellectual origins lie with psychology more so than economics. This failure leaves BLE open to criticisms that can be answered only by embracing the underlying …

The Elephantine Google Books Settlement, James Grimmelmann

Cornell Law Faculty Publications

The genius - some would say the evil genius - of the proposed Google Books settlement was the way it fuses legal categories. The settlement raised important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement was more than the sum of the individual issues it raised. These “issues” were really just different ways of describing a single, overriding issue of law and policy - a new way to concentrate an intellectual property industry.

In this essay, I argue for the critical importance of …

The Political Animal And The Ethics Of Constitutional Commitment, Josh Chafetz

Cornell Law Faculty Publications

In his article Parchment and Politics: The Positive Puzzle of Constitutional Commitment, Professor Daryl J. Levinson identifies a variety of public choice mechanisms that lead politically empowered groups to accept constitutional limitations on their political power. In this response, Professor Josh Chafetz argues that Levinson overlooks another set of mechanisms, ones which work not at the level of material interests but rather at the level of political morality. Focusing on an Aristotelian account of political morality—an account that was influential among the Framers of the U.S. Constitution and that remains influential today — Chafetz suggests that at least some …

Racial Epithets In The Criminal Process, Sheri Lynn Johnson, John H. Blume, Patrick M. Wilson

Cornell Law Faculty Publications

The evidence of modern bias is often difficult to document and, even when documented, still capable of racially neutral interpretations. In contrast, the use of racial epithets is neither subtle nor ambiguous. Prior to the research that generated this article and our representation of two clients whose cases involved racial epithets, we would have assumed that the use of a racial epithet by a decision-maker in a criminal trial would be rare, but that assumption turns out to be wrong. We also would have assumed that the use of an epithet by any of the decision makers would lead to …

Risk, Speculation, And Otc Derivatives: An Inaugural Essay For Convivium, Lynn A. Stout

Cornell Law Faculty Publications

Speculative trading, including speculative trading in derivatives, is often claimed to provide social benefits by decreasing risk and improving the accuracy of market prices. This assumption overlooks the possibility that speculation can be driven not just by differences in traders' risk aversion and information investments, but also by differences in traders' subjective expectations. Disagreement-based speculation erodes traders' returns, increases traders' risks, and can distort market prices. There is reason to believe that by 2008, the market for OTC derivatives may have been dominated by disagreement-based speculation that contributed to the Fall 2008 credit crisis.

Rulemaking In 140 Characters Or Less: Social Networking And Public Participation In Rulemaking, Cynthia R. Farina, Paul Miller, Mary J. Newhart, Claire Cardie, Dan Cosley, Rebecca Vernon

Cornell Law Faculty Publications

Rulemaking—the process by which administrative agencies make new regulations—has long been a target for egovernment efforts. The process is now one of the most important ways the federal government makes public policy.  Moreover, transparency and participation rights are already part of its legal structure. The first generation of federal erulemaking involved putting the conventional process online by creating an e-docket of rulemaking materials and allowing online submission of public comments. Now the Obama administration is urging agencies to embark on the second generation of technology-assisted rulemaking, by bringing social media into the process.

In this Article we describe the initial …

Rulemaking 2.0, Cynthia R. Farina, Mary J. Newhart, Claire Cardie, Dan Cosley, Cornell Erulemaking Initiative

Cornell Law Faculty Publications

In response to President Obama's Memorandum on Transparency and Open Government, federal agencies are on the verge of a new generation in online rulemaking. However, unless we recognize the several barriers to making rulemaking a more broadly participatory process, and purposefully adapt Web 2.0 technologies and methods to lower those barriers, Rulemaking 2.0 is likely to disappoint agencies and open-government advocates alike.

This article describes the design, operation, and initial results of Regulation Room, a pilot public rulemaking participation platform created by a cross-disciplinary group of Cornell researchers in collaboration with the Department of Transportation. Regulation Room uses selected live …

Defending Disclosure In Software Licensing, Robert A. Hillman, Maureen O'Rourke

Cornell Law Faculty Publications

This Article surveys prominent kinds of disclosures in contract law-of facts, contract terms, and performance intentions. We show why the disclosure tool, although subject to substantial criticism, promotes important social values and goals, including efficiency, autonomy, corrective justice, fairness, and the legitimacy of the contract process. Further, proposals to replace disclosure with other alternatives are unrealistic because they are too expensive or complex. Our working example is the American Law Institute's Principles of the Law of Software Contracts.

An Empirical Analysis Of Empirical Legal Scholarship Production, 1990-2009, Michael R. Heise

Cornell Law Faculty Publications

Inspired by the retirement of Professor Tom Ulen of the University of Illinois, the author considers the growth and development of empirical legal scholarship over two decades—a period of time that corresponds, not coincidentally, with Professor Ulen’s career. Starting in the 1990s when empirical scholarship had not yet “caught on,” the author first documents the increase in quantity of empirical scholarship over two decades. Next, the author applies a law and economics perspective to the recent surge in empirical scholarship, explaining that the trend has been fueled by an increase in the number of empirically trained scholars and also by …

The French Jury At A Crossroads, Valerie P. Hans, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

Response, Eduward M. Penalver

Cornell Journal of Law and Public Policy

No abstract provided.