Law Commons^™

Constitutionalism And The Foundations Of The Security State, Aziz Rana

Cornell Law Faculty Publications

Scholars often argue that the culture of American constitutionalism provides an important constraint on aggressive national security practices. This Article challenges the conventional account by highlighting instead how modern constitutional reverence emerged in tandem with the national security state, critically functioning to reinforce and legitimize government power rather than primarily to place limits on it. This unacknowledged security origin of today’s constitutional climate speaks to a profound ambiguity in the type of public culture ultimately promoted by the Constitution. Scholars are clearly right to note that constitutional loyalty has created political space for arguments more respectful of civil rights and …

Real Arrow-Securities For All: Just And Efficient Insurance Through Macro-Hedging, Robert C. Hockett

Cornell Law Faculty Publications

As a new hurricane season opened in June of 2006, it emerged that a number of online gaming sites were offering bettors the opportunity to wager on whether New Orleans might suffer another Katrina calamity. Commentators condemned the announced practice with howls of disgust, labeling it both tasteless and heartless. Perhaps they were right. All I could think about as one who grew up in New Orleans, however, was how risk pools might hereby be broadened to include all the world’s bettors. We shouldn’t condemn these people; we should use them—while requiring that they maintain margin accounts at their betting …

The Virtues Of Moderation, James Grimmelmann

Cornell Law Faculty Publications

On a Friday in 2005, the Los Angeles Times launched an experiment: a “wikitorial” on the Iraq War that any of the paper’s readers could edit. By Sunday, the experiment had ended in abject failure: vandals overran it with crude profanity and graphic pornography. The wikitorial took its inspiration and its technology from Wikipedia, but missed something essential about how the “the free encyclopedia that anyone can edit” staves off abuse while maintaining its core commitment to open participation.

The difference is moderation: the governance mechanisms that structure participation in a community to facilitate cooperation and prevent abuse. Town meetings …

Congress's Tax Bomb: Income-Based Repayment And Disarming A Problem Facing Student Loan Borrowers, Jonathan A. Laplante

Cornell Law Review

No abstract provided.

Paying For Risk: Bankers, Compensation, And Competition, Simone M. Sepe, Charles K. Whitehead

Cornell Law Review

Efforts to control bank risk address the wrong problem in the wrong way. They presume that the financial crisis was caused by CEOs who failed to super­vise risk-taking employees. The responses focus on exe­cutive pay, believing that exe­cu­tives will bring non-execu­tives into line—using incen­­­­tives to manage risk-taking—once their own pay is regu­lated. What they over­look is the effect on non-executive pay of the com­pe­­ti­­tion for talent. Even if exe­­cu­tive pay is regu­lated, and exe­cu­tives act in the bank’s best interests, they will still be trapped into providing incentives that encourage risk-taking by non-executives due to the negative exter­nality that arises …

Citizenship And The War On Terror: Should Federal Courts Consider A Plaintiff's Citizenship In Post-9/11 Litigation, Christopher M. Sarma

Cornell Law Review

No abstract provided.

The Case For Uranium Mining In Greenland, Chelsea Gunter

Cornell International Law Journal

No abstract provided.

The Invisisble Hand Of Law: Private Regulation And The Rule Of Law, Joel Bakan

Cornell International Law Journal

No abstract provided.

Due Diligence And Gender Violence: Parsing Its Power And Its Perils, Debra J. Liebowtiz, Julie Goldscheid

Cornell International Law Journal

No abstract provided.

On Failing Forward: Neoliberal Legality In The Mekong River Basin, Fleur Johns

Cornell International Law Journal

No abstract provided.

Transitional Justice And Judicial Activism - A Right To Accountability, Ruti Teitel

Cornell International Law Journal

No abstract provided.

Feeling Salty: Regulating Desalination Plants In The United States And Spain, Karen M. O'Neill Ocasio

Cornell International Law Journal

No abstract provided.

Just Repair, Lisa J. Laplante

Cornell International Law Journal

No abstract provided.

Bait And Switch: Why United States V. Morrison Is Wrong About Section 5, Kermit Roosevelt Iii

Cornell Law Review

No abstract provided.

The Return Of Lochner, Thomas B. Colby, Peter J. Smith

Cornell Law Review

No abstract provided.

Damages Versus Specific Performance: Lessons From Commercial Contracts, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Specific performance is a central contractual remedy but, in Anglo-American law, generally is subordinate to damages. Despite rich theoretical discussions of specific performance, little is known about parties' treatment of the remedy in their contracts. We study 2,347 contracts of public corporations to quantify the presence or absence of specific performance clauses in several types of contracts. Although a majority of contracts do not refer to specific performance, substantial variation exists in the rates of including specific performance clauses. High rates of specific performance use in the area of corporate combinations through merger (53.4 percent) or assets sales (45.1 percent), …

Four Decades Of Federal Civil Rights Litigation, Theodore Eisenberg

Cornell Law Faculty Publications

Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge …

Solving The Puzzle Of Transnational Class Actions, Kevin M. Clermont

Cornell Law Faculty Publications

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The dominant approach has been an exclusionary one, dropping the absentees from the class. This essay instead recommends an inclusionary approach, so that all the foreigners would remain members of the class in transnational class actions. But the court should create a subclass in damages actions for the foreign claimants who might have an incentive to sue again; the subclass would proceed by the accepted technique of claims-made recovery, so that the subclass members could …

The Death Penalty: Should The Judge Or The Jury Decide Who Dies?, Valerie P. Hans, John H. Blume, Theodore Eisenberg, Amelia Courtney Hritz, Sheri L. Johnson, Caisa Elizabeth Royer, Martin T. Wells

Cornell Law Faculty Publications

This article addresses the effect of judge versus jury decision making through analysis of a database of all capital sentencing phase hearing trials in the State of Delaware from 1977– 2007. Over the three decades of the study, Delaware shifted responsibility for death penalty sentencing from the jury to the judge. Currently, Delaware is one of the handful of states that gives the judge the final decision-making authority in capital trials. Controlling for a number of legally relevant and other predictor variables, we find that the shift to judge sentencing significantly increased the number of death sentences. Statutory aggravating factors, …

Plaintiphobia In State Courts Redux? An Empirical Study Of State Court Trials On Appeal, Theodore Eisenberg, Michael Heise

Cornell Law Faculty Publications

Prior federal and state civil appeals studies show that appeals courts overturn jury verdicts more than bench decisions and that defendants fare better than plaintiffs on appeal. Attitudinal and selection effect hypotheses may help explain an appellate court tilt that favors defendants. This study builds on and extends our prior work on state civil appeals and examines a comprehensive state court civil appeals data set to test leading theories on appellate outcomes as well as to explore the relation between plaintiff success at trial and on appeal. Using data from 40 different states and 141 counties on 8,872 completed civil …

Pain And Suffering Damages In Wrongful Death Cases: An Empirical Study, Yun-Chien Chang, Theodore Eisenberg, Han-Wei Ho, Martin T. Wells

Cornell Law Faculty Publications

Most jurisdictions in the United States award pain and suffering damages to spouses of victims in wrongful death cases. In several East Asian countries, spouses, parents, and children of the victim can all demand pain and suffering damages. Despite the prevalence of this type of damages, and the oft‐enormous amount of compensation, there has been no large‐scale empirical study on how judges achieve the difficult task of assessing pain and suffering damages. Using a unique data set containing hundreds of car accident cases rendered by the court of first instance in Taiwan, with single‐equation and structural‐equation models, we find the …

Education Rights And Wrongs: Publicly Funded Vouchers, State Constitutions, And Education Death Spirals, Michael Heise

Cornell Law Faculty Publications

A response to Julie F. Mead, The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees, 42 FORDHAM URB. L.J. 703 (2015).

Whose Truth? Objective And Subjective Perspectives On Truthfulness In Advocacy, W. Bradley Wendel

Cornell Law Faculty Working Papers

A lawyer confronts many features of the world that are given, inflexible, and must simply be dealt with; at the same time she has latitude for creativity, for the exercise of skill and judgment toward the realization of the client’s ends. Although in law school it may seem that the law that is open-textured, manipulable, and the wellspring of creative lawyering, in practice the facts do not come pre-packaged and accepted as true for the purposes of an appellate court’s review, but are highly contingent and the product of the interaction between a lawyer and witnesses, documents, and other sources …

Law And Finance In The Chinese Shadow Banking System, Dan Awrey

Cornell International Law Journal

No abstract provided.

South Africa's Land Restitution Challenge: Mining Alternatives From Evolving Mineral Taxation Policies, Sasha F. Belinkie

Cornell International Law Journal

No abstract provided.

The Crisis Of Secular Liberalism And The Constitutional State In Comparative Perspective: Religion, Rule Of Law, And Democratic Organization Of Religion Privileging States, Larry Catá Backer

Cornell International Law Journal

No abstract provided.

Escaping The American Blot - A Comparative Look At Federalism In Australia And The United States Through The Lens Of Family Law, William Buss, Emily Buss

Cornell International Law Journal

No abstract provided.

Legal Obligation In International Law And International Finance, David Zaring

Cornell International Law Journal

No abstract provided.

First Amendment Versus Laicite: Religious Exemptions, Religious Freedom, And Public Neutralit, Arthur Kutoroff

Cornell International Law Journal

No abstract provided.

An (Un)Fair Cross Section: How The Application Of Duren Undermines The Jury, David M. Coriell

Cornell Law Review

No abstract provided.