Law Commons^™

Social Security Is Fair To All Generations: Demystifying The Trust Fund, Solvency, And The Promise To Younger Americans, Neil H. Buchanan

Cornell Journal of Law and Public Policy

The Social Security system has come under attack for having illegitimately transferred wealth from younger generations to the Baby Boom generation. This attack is unfounded, because it fails to understand how the system was altered in order to force the Baby Boomers to finance their own benefits in retirement. Any challenges that Social Security now faces are not caused by the pay-as-you-go structure of the system but by Baby Boomers' other policy errors, especially the emergence of extreme economic inequality since 1980. Attempting to fix the wrong problem all but guarantees a solution that will make matters worse. Generational justice …

An Expressive Theory Of Tax, Kitty Richards

Cornell Journal of Law and Public Policy

The tax code is full of ineffective, inefficient, inequitable, or otherwise problematic provisions that make little sense when evaluated through the lens of traditional tax policy analysis, yet remain popular with citizens and legislators alike. The tax literature is equally full of carefully-researched, technically precise, and theoretically sound proposals for reform that nonetheless fail to get traction in the public debate. Why?

What tax scholarship is missing is the importance of social meaning: what do our tax laws say about our society's values, and how is taxation being used to construct cultural ideals in contested spaces?

This Article applies expressive …

Use Case Product Markets And The Spirit Of Reasonable Interchangeability, Denis Hurley

Cornell Journal of Law and Public Policy

This Note posits that a single product with multiple, non-reasonably interchangeable use cases can function like multiple products, exchanged in multiple product markets, for purposes of assessing antitrust liability.

In antitrust law, individual product markets are defined by the principle of reasonable interchangeability (or substitutability). Where a single product has multiple uses that are not reasonably interchangeable, the use cases should define the product market. The lay concept of what constitutes a single product is not applicable to antitrust law when a single product has multiple, non-reasonably interchangeable use cases. As a result, antitrust liability should attach where a seller …

Copyright Without Copying, Christina Mulligan

Cornell Journal of Law and Public Policy

Digital media and software have broken copyright law. Although a consumer experiences the same work when reading a book printed on paper or copied onto an e-reader, the applications of copyright law to traditional and digital media usage have diverged dramatically because digital works are frequently copied in the course of their use. Copyright theorists have struggled with how to craft legal rules that would align rights in traditional and digital works, frequently proposing new exceptions for digital uses or interpretations of fair use. But there is a more elegant path forward, which has been too difficult to contemplate seriously …

State Ownership In Terms Of Transition: Curse Or Blessing, Roza Nurgozhayeva

Cornell International Law Journal

No abstract provided.

Mnuchin, When No One Is Watching, David J. Reiss

Cornell Law Faculty Working Papers

UCLA’s legendary basketball coach John Wooden said that the “true test of a man’s character is what he does when no one is watching.” Steven Mnuchin, another leading citizen of Los Angeles, is now in the spotlight as President-Elect Trump’s nominee to lead the Department of the Treasury. Running the Treasury requires financial know-how, which this former Goldman Sachs banker has in spades. But it also requires character, as a large part of the Treasury Secretary’s job is to embody the good faith that the American people want the rest of the world to have in us.

Kazakhstan's National Identity - Building Policy: Soviet Legacy, State Efforts, And Societal Reactions, Aziz Burkhanov

Cornell International Law Journal

No abstract provided.

Legalized Rent-Seeking: Eminent Domain In Kazakhstan, Margaret Hanson

Cornell International Law Journal

No abstract provided.

Objective Or Perception-Based: A Debate On The Ideal Measure Of Corruption, Riccardo Pelizzo, Omer Baris, Saltanat Janenova

Cornell International Law Journal

No abstract provided.

Between Convictions And Reconciliations: Processing Criminal Cases In Kazakhstani Courts, Alexei Trochev

Cornell International Law Journal

No abstract provided.

Recent Japanese Legislation Unconstitutional: Reasons And Consequences, Thomas N. Kim

Cornell International Law Journal

No abstract provided.

Carson’S Call Of Duty, David J. Reiss

Cornell Law Faculty Working Papers

Dr. Ben Carson, the nominee for Housing and Urban Development Secretary, has made almost no public pronouncements about housing policy. The one exception is a 2015 Washington Times opinion piece in which he addresses the Obama Administration’s Affirmatively Furthering Fair Housing rule. While Dr. Carson appears to agree with the Obama Administration’s diagnosis of the problem of segregation, he attacks its solution. If he refuses to vigorously enforce the rule at HUD, it is still incumbent on him to address the underlying problem it was meant to address.

Voluntariness With A Vengeance: The Coerciveness Of Police Lies In Interrogations, Amelia C. Hritz

Cornell Law Review

No abstract provided.

Let's Keep It Civil: An Evaluation Of Civil Disabilities, A Call For Reform, And Recommendations To Reduce Recidivism, Victor J. Pinedo

Cornell Law Review

No abstract provided.

A Market Test For Bayh-Dole Patents, Ian Ayres, Lisa Larrimore Ouellette

Cornell Law Review

No abstract provided.

Constitutional Liberty And The Progression Of Punishment, Robert J. Smith, Zoe Robinson

Cornell Law Review

No abstract provided.

The Structure Of Federal Public Defense: A Call For Independence, David E. Patton

Cornell Law Review

No abstract provided.

Inter-American Court Recognizes Elevated Status Of Trade Unions, Rejects Standing Of Corporations, Angela B. Cornell

Cornell Law Faculty Publications

The Inter-American Court was unanimous in concluding that legal entities do not have the standing to directly access the Inter-American system in a contentious process as presumptive victims. Corporations therefore will not be permitted to access the Court as victims of human rights transgressions, which the Court determined is limited to human beings, with two exceptions: trade unions and indigenous communities. Trade unions have standing as victims of human rights violations on their behalf and that of their members, but under certain limitations. This commentary focuses on the Court’s decision with regard to trade unions, but begins with a description …

Putting Distribution First, Robert C. Hockett

Cornell Law Faculty Publications

It is common for normative legal theorists, economists and other policy analysts to conduct and communicate their work mainly in maximizing terms. They take the maximization of welfare, for example, or of wealth or utility, to be primary objectives of legislation and public policy. Few if any of these theorists seem to notice, however, that any time we speak explicitly of maximizing one thing, we speak implicitly of distributing other things and of equalizing yet other things. Fewer still seem to recognize that we effectively define ourselves by reference to that which we distribute and equalize. For it is in …

Forces Of Federalism, Safety Nets, And Waivers, Edward H. Stiglitz

Cornell Law Faculty Publications

Inequality is the defining feature of our times. Many argue it calls for a policy response, yet the most obvious policy responses require legislative action. And if inequality is the defining feature of our times, partisan acrimony and gridlock are the defining features of the legislature. So being, it is worth considering what role administrative agencies, and administrative law, might play in ameliorating or exacerbating economic inequality. Here, I focus on American safety net programs, many of which are joint operations between federal administrative agencies and state governments. In this context, a central mode of bureaucratic policy innovation comes in …

Limiting The Last-In-Time Rule For Judgments, Kevin M. Clermont

Cornell Law Faculty Publications

A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound, the last-in-time rule …

Inside The Arbitrator's Mind, Susan D. Franck, Anne Van Aaken, James Freda, Chris Guthrie, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

Bank Governance And Systemic Stability: The "Golden Share" Approach, Saule T. Omarova

Cornell Law Faculty Publications

The global financial crisis of 2008-2009 has sharply reframed the debate on the role of bank corporate governance as a mechanism of systemic crisis prevention. Among other things, it revealed how often the incentives of bank managers and shareholders to maximize short-term private gains are perfectly aligned as a matter of internal governance, but work directly against the broader public interest in preserving long-term financial stability. This Article accepts the existence of that built-in potential conflict as the critical starting point for answering the central question of post-crisis bank governance: How do we ensure that the board of directors of …

Exemplary Legal Writing 2016: Books Selected By Our Respectable Authorities: Five Recommendations, Femi Cadmus

Cornell Law Faculty Publications

No abstract provided.

Consumer Internet Standard Form Contracts In India: A Proposal, Robert A. Hillman

Cornell Law Faculty Publications

India's burgeoning Internet commerce sector has made consumers susceptible to standard-form contracts. Due to the slim likelihood of consumers reading the terms, vendors may often draft heavy-handed terms in the contracts, thereby adversely impacting consumer interests. The Indian legal framework in this regard is inadequate. This article evaluates the existing suggestions on standard-form contracts and argues that none of them safeguard consumer interests sufficiently. Instead, based on the American Law Institutes' Principles of the Law of Software Contracts, the article proposes a disclosure approach that would benefit the interests of Indian consumers engaged in commerce on the Internet.

The Federal Housing Administration And African-American Homeownership, David Reiss

Cornell Law Faculty Publications

The United States Federal Housing Administration (“FHA”) has been a versatile tool of government since it was created during the Great Depression. It achieved success with some of its goals and had a terrible record with others. Its impact on African-American households falls, in many ways, into the latter category. The FHA began redlining African-American communities at its very beginning. Its later days have been marred by high default and foreclosure rates in those same communities.

At the same time, the FHA’s overall impact on the housing market has been immense. Over its lifetime, it has insured more than 40 …

Real + Imaginary = Complex: Toward A Better Property Course, James Grimmelmann

Cornell Law Faculty Publications

“Property” in most law schools means real property: the dense, illogical, and special-purpose body of land law. But this is wrong: property also comes in personal, intangible, and intellectual flavors—all of them more important to modern lawyers than land. Real property is deeply unrepresentative of property law, and focusing our teaching on it sells the subject short. A better property course would fully embrace these other forms of property as real property’s equals. Escaping the traditional but labyrinthine classifications of real property frees teachers to bring out the underlying conceptual coherence and unity of property law. The resulting course is …

The Finance Franchise, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Publications

The dominant view of banks and other financial institutions is that they function primarily as intermediaries, managing flows of scarce funds from those who have accumulated them to those who have need of them and can pay for their use. This understanding pervades textbooks, scholarly writings, and policy discussions – yet it is fundamentally false as a description of how a modern financial system works. Finance today is no more primarily “intermediated” than it is pre-accumulated or scarce.

This Article challenges the outdated narrative of finance as intermediated scarce private capital and maps the basic structure and dynamics of the …

Judging The Judiciary By The Numbers: Empirical Research On Judges, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that …

Private Law And The Future Of Patents, Oskar Liivak

Cornell Law Faculty Publications

As it operates today, patent law does not qualify as private law and, without change, I doubt it ever will. For some, this is as it should be and any private law aspects that remain in the patent system should be purged. The basic argument is that the dominant theory of patents is just not compatible with private law and patent doctrine should reflect a pure public law theoretical basis. I agree that today's dominant patent theory is incompatible with private law principles. Yet agreeing with that inherent incompatibility does not imply that doctrine needs to be reformed. There is …