Law Commons^™

The Unstoppable Intrusion: The Unique Effect Of Online Harassment And What The United States Can Ascertain From Other Countries' Attempts To Prevent It, Dylan E. Penza

Cornell International Law Journal

The United States must provide some solution to deal with online harassment. Looking at its fellow nations may be a good way to provide a foundation for changes that need to be made

Semi-Confidential Settlements In Civil, Criminal, And Sexual Assault Cases, Saul Levmore, Frank Fagan

Cornell Law Review

Settlement is more likely if parties are free to set its terms, including a promise that these terms will remain secret between them. State sunshine-in-litigation laws work to defeat this incentive for confidentiality in order to protect third parties from otherwise unknown hazards. The intuition is that a wrongdoer should not be able to pay one plaintiff for silence at the expense of other victims. This Article begins by showing that the intuition is often wrong or overstated. A plaintiff who can assess a defendant’s vulnerability to future claims can extract a large enough settlement to provide substantial deterrence, and …

The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger

Cornell Law Review

As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind …

A First Amendment Right To Corrupt Your Politician, Eugene Temchenko

Cornell Law Review

Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is well-established that the Constitution protects the right of political association, which includes contributions to candidates in return for ingratiation and access. Nonetheless, courts and scholars have generally limited this right to contributions to campaigns for public office. After McDonnell v. United States, that may change. Reading the McDonnell opinion in light of McCutcheon, this Note and other commentators conclude that the Supreme Court may have inadvertently created …

Degrees Of Deference: Applying Vs. Adopting Another Sovereign's Law, Kevin M. Clermont

Cornell Law Review

Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of federal law’s constraint on state actors, but also in the horizontal choice-of-law setting and even in connection with the status of international law. Application and adoption are different avenues by which to approach a pluralist world. Application involves the recognition of the other sovereign’s law …

Mdl V. Trump: The Puzzle Of Public Law In Multidistrict Litigation, Andrew D. Bradt, Zachary D. Clopton

Cornell Law Faculty Publications

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered — Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are …

Agency And Insanity, Stephen P. Garvey

Cornell Law Faculty Publications

This Article offers an unorthodox theory of insanity. According to the traditional theory, insanity is a cognitive or volitional incapacity arising from a mental disease or defect. As an alternative to the traditional theory, some commentators have proposed that insanity is an especially debilitating form of irrationality. Each of these theories faces fair-minded objections. In contrast to these theories, this Article proposes that a person is insane if and because he lacks a sense of agency. The theory of insanity it defends might therefore be called the lost-agency theory.

According to the lost-agency theory, a person lacks a sense of …

The Brennan Lecture: The Separation Of Powers And The Public, Josh Chafetz

Cornell Law Faculty Publications

No abstract provided.

Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel

Cornell Law Faculty Publications

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …

Convictions Of Innocent People With Intellectual Disability, Sheri Johnson, John H. Blume, Amelia Courtney Hritz

Cornell Law Faculty Publications

In Atkins v. Virginia, the Supreme Court held that executing individuals with intellectual disability violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. In addition to concerns over culpability and deterrence, the Court’s judgment in Atkins was informed by the heightened “risk of wrongful execution” faced by persons with intellectual disability. This essay explores that question both anecdotally and quantitatively, hoping to illuminate the causes of wrongful conviction of persons with intellectual disability. We provide examples from our experiences in the Cornell Death Penalty Clinic and cases brought to our attention by defense attorneys. We also present data …

Common Sense On Standards Of Proof, Kevin M. Clermont

Cornell Law Faculty Publications

The law speaks clearly on the standards of proof, but listeners often misunderstand its words. This article tries, with some common sense and a modicum of multivalent logic, to explain how the law expects its standards to be applied, and then to show how the law thereby avoids such complications as the conjunction paradox.

First, in accordance with belief function theory, the factfinder should start at zero belief. Given imperfect evidence, the factfinder will end up retaining a fair amount of uncommitted belief. As evidence comes in, though, the factfinder will form a belief in the truth of the disputed …

How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen

Cornell Law Faculty Publications

From the moment Donald Trump was elected President, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed—dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials.

This Article calls attention to that latent instability and, in so …

Evaluating Employment Arbitration: A Call For Better Empirical Research, Samuel Estreicher, Michael Heise, David Sherwyn

Cornell Law Faculty Publications

Since at least 1991, issues surrounding mandatory arbitration of employment and other disputes have intrigued, perplexed, angered, gratified, and confounded academics, politicians, lawyers, and others. As with many legal issues, the first wave of scholarly work centered on the law. As the law has pretty much settled, academics have turned to empirical work, focusing on how employment arbitration works, and how it compares to employment litigation. In part due to pressure from California legislation, the American Arbitration Association (“AAA”), the nation’s leading provider of arbitration services, opened access to its data base. Owing to inevitable data limitations, most analyses have …

Legal Vs. Factual Normative Questions & The True Scope Of Ring, Emad H. Atiq

Cornell Law Faculty Publications

When is a normative question a question of law rather than a question of fact? The short answer, based on common law and constitutional rulings, is: it depends. For example, if the question concerns the fairness of contractual terms, it is a question of law. If it concerns the reasonableness of dangerous risk-taking in a negligence suit, it is a question of fact. If it concerns the obscenity of speech, it was a question of fact prior to the Supreme Court's seminal cases on free speech during the 1970s, but is now treated as law-like. This variance in the case …

The Role Of Skills Instruction In Legal Education, Eduardo M. PeñAlver

Cornell Law Faculty Publications

No abstract provided.

North Korean Illicit Activities And Sanctions: A National Security Dilemma, Bruce E. Bechtol Jr.

Cornell International Law Journal

North Korea is a nation-state that for many years (including the years following the Cold War) has been off of the main radar for American foreign policy. Whether it was because the United States was worried about other issues such as problems in the Balkans in the 1990s, or fighting wars in Iraq and Afghanistan in the new millennium, challenges from the DPRK never seemed to be at the top of the priorities list with American foreign policy makers. This has now changed. It has become obvious to the world that North Korea has an active nuclear weapons program, and …

Are The Stars Aligning For Fannie And Freddie Reform?, David J. Reiss

Cornell Law Faculty Publications

There has been a lot of talk of the closed-door discussions in the Senate about a reform plan for Fannie Mae and Freddie Mac, the two mammoth housing finance government-sponsored enterprises. There has long been a bipartisan push to get the two entities out of their conservatorships with some kind of permanent reform plan in place, but the stars never aligned properly. There was resistance on the right because of a concern about the increasing nationalization of the mortgage market and there was resistance on the left because of a concern that housing affordability would be unsupported in a new …

The Perverse Consequences Of Disclosing Standard Terms, Tess Wilkinson-Ryan

Cornell Law Review

Although assent is the doctrinal and theoretical hallmark of contract, its relevance for form contracts has been drastically undermined by the overwhelming evidence that no one reads standard terms. Until now, most political and academic discussions of this phenomenon have acknowledged the truth of universally unread contracts, but have assumed that even unread terms are at best potentially helpful, and at worst harmless. This Article makes the empirical case that unread terms are not a neutral part of American commerce; instead, the mere fact of fine print inhibits reasonable challenges to unfair deals. The experimental study reported here tests the …

Fundamental Rights Not So Fundamental? Critique Of The Supreme Court Judgment In Law Association Of Zambia V. The Attorney General, Muna B. Ndulo, Samuel Ngure Ndungu

Southern African Journal of Policy and Development

The article discusses the constitutionality of sections 5 and 6 of the Public Order Act of Zambia. The Law Association of Zambia had unsuccessfully argued in the High Court of Zambia that the sections violated section 20 (Freedom of expression) and 21 (Freedom of assembly) of the Zambian Constitution. The Supreme Court of Zambia upheld the decision of the High Court and held that the sections did not violate sections 20 and 21 of the constitution and were constitutional. This article argues that the Supreme Court decision is wrong and falls short of effectively protecting citizen’s rights of peaceful assembly …

Beware The "Terror Gap": Closing The Loophole Between The U.S. Terrorist Watchlist System And The Right To Bear Arms, Elizabeth M. Sullivan

Cornell Law Review

No abstract provided.

Panel Assignment In The Federal Courts Of Appeals, Marin K. Levy

Cornell Law Review

It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random. This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews …

Sharing, Samples, And Generics: An Antitrust Framework, Michael A. Carrier

Cornell Law Review

Rising drug prices are in the news. By increasing price, drug companies have placed vital, even life-saving, medicines out of the reach of consumers. In a recent development, brand firms have prevented generics even from entering the market. The ruse for this strategy involves risk-management programs known as Risk Evaluation and Mitigation Strategies (“REMS”). Pursuant to legislation enacted in 2007, the FDA requires REMS when a drug’s risks (such as death or injury) outweigh its rewards. Brands have used this regime, intended to bring drugs to the market, to block generic competition. Regulations such as the federal Hatch-Waxman Act and …

Columbia University And Incarcerated Worker Labor Unions Under The National Labor Relations Act, Kara Goad

Cornell Law Review

No abstract provided.

Unprecedented? Judicial Confirmation Battles And The Search For A Usable Past, Josh Chafetz

Cornell Law Faculty Publications

Recent years have seen intense conflicts over federal judicial appointments, culminating in Senate Republicans' 2016 refusal to consider the nomination of Merrick Garland to the Supreme Court, Senate Democrats' 2017 filibuster of Neil Gorsuch's nomination to the same seat, and Republicans' triggering of the "nuclear option" to confirm Gorsuch. At every stage in this process, political actors on both sides have accused one another of "unprecedented" behavior.

This Essay, written for the 2017 Supreme Court issue of the Harvard Law Review, examines these disputes and their histories, with an eye toward understanding the ways in which discussions of (un)precedentedness …

State Criminal Appeals Revealed, Michael Heise, Nancy J. King, Nicole A. Heise

Cornell Law Faculty Publications

Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments. We focus on two subpools of state …

From No Child Left Behind To Every Student Succeeds: Back To A Future For Education Federalism, Michael Heise

Cornell Law Faculty Publications

When passed in 2001, the No Child Left Behind Act represented the federal government’s most dramatic foray into the elementary and secondary public school policymaking terrain. While critics emphasized the Act’s overreliance on standardized testing and its reduced school district and state autonomy, proponents lauded the Act’s goal to close the achievement gap between middle- and upper-middle-class students and students historically ill served by their schools. Whatever structural changes the No Child Left Behind Act achieved, however, were largely undone in 2015 by the Every Student Succeeds Act, which repositioned significant federal education policy control in state governments. From a …

Consumer Financial Protection And Human Rights, Chrystin Ondersma

Cornell International Law Journal

This summer the Consumer Financial Protection Bureau proposed a rule that would restrict the use of mandatory arbitration clauses in consumer financial credit contracts. With the administration and Congress seemingly eager to pull back on consumer financial regulations, it is crucial to examine the rights at stake. Many financial institutions have agreed to protect and promote human rights, so pressure from consumers, human rights organizations, and consumer protection advocates may succeed even though Congress has declined to promulgate the CFPB’s proposed rule. This Article argues that the existing binding, mandatory arbitration system in consumer credit contracts is inconsistent with human …

Three Cheers For Trekonomics: The Future Of Copyright Doctrine According To Star Athletica And Star Trek, Philip M. Duclos

Cornell Journal of Law and Public Policy

No abstract provided.

Explaining The Absence Of Surgical Procedure Regulation, Jonathan J. Darrow

Cornell Journal of Law and Public Policy

Systematic evaluation of both existing and innovative surgical procedures is needed to make important safety and efficacy data available to surgeons, facilitating optimal treatment decisions. High quality risk-benefit data is also essential if the healthcare system is to honor its obligation to inform patients of relevant benefits and risks prior to obtaining their consent to treatment.

Yet for a variety of reasons, surgical procedures are not subject to direct regulation. As a result, surgeons consulting the available literature may find it inadequate to answer fundamental questions about optimal treatment choices. This failure of information increases the chance that, for years …

Under-Propertied Persons, Marc L. Roark

Cornell Journal of Law and Public Policy

Property shapes the way we talk about our communities and ourselves. It also, unintentionally, shapes the way we talk about the poor. Within property, the doctrine of waste reinforces notions of autonomy, privacy, and boundary-making for property owners, while leaving those without property searching for other ways to assert these self-defining protections. Likewise, nuisance assists owners' participation in their communities by dictating when individuals must account for harms their property use causes to neighbors. The law, however, provides few legal remedies for poor persons who are harmed by owners' sanctioned use of property. Through the language of ownership, property doctrines …