Law Commons^™

Max Weber On Property: An Effort In Interpretive Understanding, Laura R. Ford

Cornell Law School J.D. Student Research Papers

This article reviews Max Weber’s scholarly work pertaining to property, beginning with his first dissertation and ending with the compilation that is Economy and Society. Three phases of Weber’s work are described in detail: a legal phase, an economic-historical phase, and a sociological phase. It is argued that the sociological phase represents the culmination of the two prior phases, drawing on material and arguments from those earlier phases. In the sociological phase of his writing, it is argued that Weber developed a theory of property that is capable of accounting for that phenomenon in all of its dimensions: structural, material, …

Iqbal, Twombly, And The Expected Cost Of False Positive Error, Mark Anderson, Max Huffman

Cornell Journal of Law and Public Policy

No abstract provided.

Options For Student Borrowers: A Derivatives-Based Proposal To Protect Students And Control Debt-Fueled Inflation In The Higher Education Market, Michael C. Macchiarola, Arun Abraham

Cornell Journal of Law and Public Policy

No abstract provided.

Takings For Economic Development In New York: A Constitutional Slam Dunk, Alexander D. Racketa

Cornell Journal of Law and Public Policy

No abstract provided.

The Perils Of Empowerment, Jane Aiken, Katherine Goldwasser

Cornell Journal of Law and Public Policy

No abstract provided.

Puerto Rico’S Stellar Vocation, Luis G. Fortuno

Cornell Journal of Law and Public Policy

No abstract provided.

The American Czars, Kevin Sholette

Cornell Journal of Law and Public Policy

No abstract provided.

Counterfeit Conspiracy: The Misapplication Of Conspiracy As A Substantive Crime In International Law, Taylor R. Dalton

Cornell Law School J.D. Student Research Papers

In the International Criminal Tribunal for Rwanda (ICTR) case Prosecutor v. Musema, the trial chamber held that an individual can be found guilty solely for the crime of conspiracy to commit genocide even if no genocide takes place. The trial chamber found its jurisdiction to punish the crime of conspiracy under its establishing statute, but looks almost exclusively at national legal traditions to determine its content. It cites no other international law supporting its decision to incorporate domestic concepts into the crime. In contrast, the Rome Statute of the International Criminal Court, which relatively recently entered into force, seems to …

Decisional Sequencing: Limitations From Jurisdictional Primacy And Intrasuit Preclusion, Kevin M. Clermont

Cornell Law Faculty Working Papers

This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, by weighing those various interests, the judge gets to choose the decisional sequence, although the parties can control which issues they put before the judge.

The law sees fit to put few limits on the judge’s power, and properly so. The few limits are in fact quite narrow in application, and even narrower if properly understood. The Steel Co.-Ruhrgas rule generally requires a federal court to decide …

Basic Indian Legal Literature For Foreign Legal Professionals, Uma Narayan

International Journal of Legal Information

Among Asian Nations, India has become a major political, cultural and business hub. This situation has contributed to frequent interaction of foreign governments, foreign nationals and businesspersons with India and Indians. In order to make them aware of the Indian Legal System and Literatures - so that they act within scope of the system – I present here a brief article giving an introduction to Indian legal literature and legal sources.

Rethinking The Concept Of Exclusion In Patent Law, Oskar Liivak

Cornell Law Faculty Publications

Patent law’s broad exclusionary rule is one of its defining features. It is unique within intellectual property as it prohibits acts of independent creation. Even if a second inventor had no connection or aid from an initial inventor, patent law allows the first inventor to stop the second. Even though a number of pressing problems can be traced to this rule, it remains untouchable; it is thought to be essential for incentivizing invention. But is it really our only choice? And why is it so different from our otherwise widespread reliance on free entry and competition in markets? The current …

Comment On Enterprise Duty To Serve Underserved Markets, David J. Reiss

Cornell Law Faculty Working Papers

FHFA invited further comment on the merit of considering properties without affordable use restrictions as part of the Enterprises’ duty to serve, noting that affordable housing preservation “encompasses efforts to keep unsubsidized properties in good condition while maintaining affordability for low- and moderate-income households.” (Page 32102)

FHFA should be certain that any aid given to buildings without affordable use restrictions will actually be passed on in large part to their tenants, whether through lower rents or improved conditions. I question whether that is in fact the case.

There are two main rationales for subsidizing multifamily buildings without affordable use restrictions. …

Justifying Subversion: Why Nussbaum Got (The Better Interpretation Of) Butler Wrong, Ori J. Herstein

Cornell Law Faculty Publications

One of the most common critiques directed at deconstructive and poststructuralist theories is that they are amoral – rejecting the validity of the very idea of norms and moral principles as grounds for justifying or criticizing political action and social structures – and that in rejecting the validity of the distinction between what is just and what is unjust, they “collaborate with evil.” By now, an almost canonical example of this common critique is found in Martha Nussbaum’s highly critical essay on the work of Judith Butler, titled The Professor of Parody.3 Here, I focus on Nussbaum’s critique and on …

Free And Fair Elections, Violence And Conflict, Muna Ndulo, Sara Lulo

Cornell Law Faculty Publications

Elections are a defining characteristic of democracy, and thus form an integral part of the democratization process. Over the past decade, electoral systems and processes have become a centerpiece of UN peacekeeping missions and post-conflict democratization projects undertaken by intergovernmental organizations and donor agencies such as World Bank and USAID. The emphasis on elections as an element of UN peacekeeping missions is linked to a shift in focus to state rebuilding (or state creation, as was the case in East Timor). Elections thus provide a means for “jump-starting a new, post-conflict political order; for stimulating the development of democratic politics; …

Resolving The Continuing Controversy Regarding Confidential Informants In Private Securities Fraud Litigation, Michael J. Kaufman, John M. Wunderlich

Cornell Journal of Law and Public Policy

No abstract provided.

Constitutional Commitments And Religious Identity, Bernadette Meyler

Cornell Journal of Law and Public Policy

No abstract provided.

Rethinking Liability For Vaccine Injury, Joanna B. Apolinsky, Jeffrey A. Van Detta

Cornell Journal of Law and Public Policy

No abstract provided.

Making Sense Of Drug Regulation: A Theory Of Law For Drug Control Policy, Kimani Paul-Emile

Cornell Journal of Law and Public Policy

No abstract provided.

In Celebration Of Steven Shiffrin’S The Religious Left And Church-State Relations, Kent Greenawalt

Cornell Journal of Law and Public Policy

No abstract provided.

Punitive Damages Caps: A Proposed Middle Ground After Exxon Shipping Co. V. Baker, Ryan J. Strasser

Cornell Journal of Law and Public Policy

No abstract provided.

The Religious Left And Church-State Relations: A Response To Kent Greenawalt And Bernie Meyler, Steven H. Shiffrin

Cornell Journal of Law and Public Policy

No abstract provided.

The Iphone Jailbreaking Exemption And The Issue Of Openness, Michael H. Wolk

Cornell Journal of Law and Public Policy

No abstract provided.

Responsibility In Negligence: Why The Duty Of Care Is Not A Duty “To Try”, Ori J. Herstein

Cornell Law Faculty Publications

Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—it is a mistake to conceive of the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility-component in negligence.

The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of …

Essay: Constitutional Commitments And Religious Identity, Bernadette Meyler

Cornell Law Faculty Publications

This essay comments on Steve Shiffrin's The Religious Left and Church-State Relations. It contends, on the one hand, that Shiffrin has valuably brought to the fore various reasons why religious believers might resist close relations between church and state. On the other hand, it argues that no fundamental connection exists between the "religious Left" and a particular position on church-state relations and that religious liberals will not necessarily be more persuasive than secular liberals in arguing against positions espoused by religious conservatives.

"Our Cities Institutions" And The Institution Of The Common Law, Bernadette Meyler

Cornell Law Faculty Publications

The audiences of early modern English drama were multiple, and they intersected with the legal system in various ways, whether through the cross-pollination of the theaters and the Inns of Court, the representations of the sovereign’s justice performed before him, or the shared evidentiary orientations of jurors and spectators. As this piece written for a symposium on “Reasoning from Literature” contends, Shakespeare’s Measure for Measure addressed to these various audiences the question of whether the King should judge in person. In doing so, it drew on extant political theories suggesting that the King refrain from exposing himself to public censure …

Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

Attorney Fees And Expenses In Class Action Settlements: 1993–2008, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

We report on a comprehensive database of 18 years of available opinions (1993–2008, inclusive) on settlements in class action and shareholder derivative cases in state and federal courts. An earlier study, covering 1993–2002, revealed a remarkable relationship between attorney fees and class recovery size: regardless of the methodology for calculating fees ostensibly employed by the courts, the class recovery size was the overwhelmingly important determinant of the fee. The present study, which nearly doubles the number of cases in the database, confirms that relationship. Fees display the same relationship to class recoveries in both data sets and neither fees nor …

Principles Of The Law Of Software Contracts: Some Highlights, Robert A. Hillman, Maureen O'Rourke

Cornell Law Faculty Publications

The final draft of the Principles of the Law of Software Contracts ("Principles") was unanimously approved by the American Law Institute membership in May of 2009. The goal of the project is to “clarify and unify the law of software transactions.” However, the Principles will not become law in any jurisdiction unless and until a court adopts them, so only time will tell whether the project will accomplish this goal. Nevertheless, one thing is certain. The current law of software transactions, a mish-mash of common law, Article 2 of the Uniform Commercial Code, and federal intellectual property law, among other …

Punitive Damages In Securities Arbitration: An Empirical Study, Stephen Choi, Theodore Eisenberg

Cornell Law Faculty Publications

This article provides the first empirical analysis of punitive damages in securities arbitrations. Using a data set of over 6,800 securities arbitration awards, we find that claimants prevailed in 48.9 percent of arbitrations and that 9.1 percent of those claimant victories included a punitive damages award. The existence of a punitive damages award was associated with claims that suggested egregious misbehavior and with claims that provided higher compensatory awards. The pattern of punitive awards is more consistent with a traditional view of punitive damages that incorporates a retributive component than with a law and economics emphasis on efficient deterrence. We …

The Internet Is A Semicommons, James Grimmelmann

Cornell Law Faculty Publications

The Internet is a semicommons. Private property in servers and network links coexists with a shared communications platform. This distinctive combination both explains the Internet's enormous success and illustrates some of its recurring problems.

Building on Henry Smith's theory of the semicommons in the medieval open-field system, this essay explains how the dynamic interplay between private and common uses on the Internet enables it to facilitate worldwide sharing and collaboration without collapsing under the strain of misuse. It shows that key technical features of the Internet, such as its layering of protocols and the Web's division into distinct "sites," respond …