Law Commons^™

The Phenomenology Of Gridlock, Josh Chafetz

Cornell Law Faculty Publications

Assertions that our legislative process is gridlocked — perhaps even "hopelessly" so — are endemic. So many more of our problems would be fixed, the thinking goes, if only our political institutions were functioning properly. The hunt for the causes of gridlock is therefore afoot.

This brief Essay, written for the Notre Dame Law Review's 2012 "The American Congress: Legal Implications of Gridlock" Symposium, argues that this hunt is fundamentally misguided, because gridlock is not a phenomenon. Rather, gridlock is the absence of phenomena; it is the absence, that is, of legislative action. Rather than asking why we experience gridlock, …

Why Paretians Can’T Prescribe: Preferences, Principles, And Imperatives In Law And Policy, Robert C. Hockett

Cornell Law Faculty Publications

Recent years have witnessed two linked revivals in the legal academy. The first is renewed interest in articulating a normative “master principle” by which legal rules might be evaluated. The second is renewed interest in the prospect that a variant of Benthamite “utility” might serve as the requisite touchstone. One influential such variant now in circulation is what the Article calls “Paretian welfarism.”

This Article rejects Paretian welfarism and advocates an alternative it calls “fair welfare.” It does so because Paretian welfarism is inconsistent with ethical, social, and legal prescription, while fair welfare is what we have been groping for …

Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Cornell Law Faculty Publications

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear …

A Study In Rule-Specific Issue Categorization For E-Rulemaking, Claire Cardie, Cynthia R. Farina, Adil Aijaz, Matt Rawding, Stephen Purpura

Cornell Law Faculty Publications

We address the e-rulemaking problem of categorizing public comments according to the issues that they address. In contrast to previous text categorization research in e-rulemaking, and in an attempt to more closely duplicate the comment analysis process in federal agencies, we employ a set of rule-specific categories, each of which corresponds to a significant issue raised in the comments. We describe the creation of a corpus to support this text categorization task and report interannotator agreement results for a group of six annotators. We outline those features of the task and of the e-rulemaking context that engender both a non-traditional …

The State Attorney General And Preemption, Trevor W. Morrison

Cornell Law Faculty Publications

According to the National Association of Attorneys General, "the rise of preemption of state laws and regulations by federal administrative agencies, rather than directly by Congress" is "[p]erhaps the most significant development in federal preemption in the last several decades." This kind of preemption is typically claimed in an agency ruling or regulation declaring certain state laws or activities preempted, even though the underlying statute says nothing about preemption in those areas. That an association of state attorneys general would view "agency preemption" as particularly worrisome is hardly surprising: the main casualties are often state attorneys general, whose broad investigative …

The Morality Of Prophylactic Legislation (With Special Reference To Speed Limits, Assisted Suicide, Torture, And Detention Without Trial), Michael C. Dorf

Cornell Law Faculty Publications

My subject is the morality of prophylactic legislation. What do I mean by ‘prophylactic’ legislation? Let me illustrate the concept by drawing a contrast with the most famous hypothetical case in the scholarly literature of Anglo-American jurisprudence. During the course of their debate over the relation between law and morality, Lon Fuller and H. L. A. Hart disagreed about what tools are needed to discern the meaning and scope of a rule barring vehicles from a public park. Hart and Fuller clashed over whether legislative purpose and considerations of morality enter into the process of discerning what Hart famously called …

The Immorality Of Textualism, Andrei Marmor

Cornell Law Faculty Publications

No abstract provided.

The Odyssey Of The J-2: Forty-Three Years Of Trying Not To Go Home Again, Naomi Schorr, Stephen W. Yale-Loehr

Cornell Law Faculty Publications

We wrote this article to address one question: Should a J-2 nonimmigrant exchange visitor be subject to the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act (INA) if the J-1 principal is so subject? In trying to answer that question, the authors confronted additional issues that seem to have gone unresolved for close to half a century. If a J nonimmigrant is subject, be it J-1 or J-2, where can he fulfill the foreign residence requirement: in the country of his nationality or the country of his last residence? Does he have a choice? Where …

Moral Rights, Judicial Review, And Democracy: A Response To Horacio Spector, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

The Rhetoric Of Legal Backfire, Robert A. Hillman

Cornell Law Faculty Publications

This Article focuses on legal backfire claims. A claim of legal backfire constitutes the position that a law produces or will produce results directly contrary to one or more of those intended. Legal backfire claims are pervasive, yet potentially misleading and harmful argumentation used primarily to undermine existing law (or policy) or to forestall the enactment of new law. This Article analyzes many examples of legal backfire to suggest that the concept is often a rhetorical strategy for opposing the promulgation of new law or policy or for attempting to have existing law rolled back, and that actual legal backfires …

Cognitive Psychology And Optimal Government Design, Jeffrey J. Rachlinski, Cynthia R. Farina

Cornell Law Faculty Publications

Amici Curiae Brief Of New York Law School Professors In People V. Harris: Constitutionality Of The New York Death Penalty Statute Under The State Constitution's Cruel And Unusual Punishments And Antidiscrimination Clauses, Anthony G. Amsterdam, Ursula Bentele, Vivian Berger, John H. Blume, Peggy Davis, Deborah Denno, Markus Dubber, Stephen Ellmann, Deborah Fins, Eric M. Freedman, Stephen P. Garvey, Jack Greenberg, Randy Hertz, Sheri Lynn Johnson, Richard Klein, James Liebman, Peter Neufeld, Barry Scheck, Bryan Stevenson

Cornell Law Faculty Publications

Amici are teachers in New York law schools who have studied the operation of the death penalty for the purpose of teaching the subject, writing about it in scholarly journals, or representing persons accused or convicted of capital crimes. Most of us have worked in the field both as academics and as pro bono counsel for condemned inmates. Collectively, we have had first-hand experience in hundreds of death cases, in dozens of jurisdictions, extending over more than a third of a century.

Our experience has convinced us that capital punishment cannot be administered with the fairness, reliability, and freedom from …

A Comparative Look At Immigration And Human Capital Assessment, Stephen W. Yale-Loehr, Christoph Hoashi-Erhardt

Cornell Law Faculty Publications

This article examines the formation of an immigration policy designed to build up the skill and human capital of a country. We discuss how the process of selecting economic-stream migrants could be designed to yield economic benefits to the host country. Part I examines the theoretical considerations involved in framing a policy that governs economic-stream immigration. In this section, we outline the goals that a host country seeks to achieve in selecting these migrants and propose important elements of a selection scheme. Part II takes a comparative look at existing points-based schemes for selecting economic migrants, focusing on Canada and …

Regulatory Improvement Legislation: Risk Assessment, Cost-Benefit Analysis, And Judicial Review, Fred Anderson, Mary Ann Chirba-Martin, E. Donald Elliott, Cynthia R. Farina, Ernest Gellhorn, John D. Graham, C. Boyden Gray, Jeffrey Holmstead, Ronald M. Levin, Lars Noah, Katherine Rhyne, Jonathan Baert Weiner

Cornell Law Faculty Publications

As the number, cost, and complexity of federal regulations have grown over the past twenty years, there has been growing interest in the use of analytic tools such as risk assessment and cost-benefit analysis to improve the regulatory process. The application of these tools to public health, safety, and environmental problems has become commonplace in the peer-reviewed scientific and medical literatures. Recent studies prepared by Resources for the Future, the American Enterprise Institute, the Brookings Institution, and the Harvard Center for Risk Analysis have demonstrated how formal analyses can and often do help government agencies achieve more protection against hazards …

Rules And Judicial Review, Emily Sherwin

Cornell Law Faculty Publications

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written; they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible; and they interpret statutes in ways that avoid constitutional difficulty. These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest …

Leave Bad Enough Alone, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.

Legal Rules And Social Reform, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

Rustic Justice: Community And Coercion Under The Federal Arbitration Act, Katherine V.W. Stone

Cornell Law Faculty Publications

Arbitration clauses are appearing in a wide variety of consumer transactions, including routine product purchase forms, residential leases, housing association charters, medical consent forms, banking and credit card applications, and employment handbooks. In the past fifteen years, the Supreme Court has reinterpreted the Federal Arbitration Act (FAA) so as to grant tremendous deference to private arbitral tribunals. By doing so, it has altered the landscape of civil litigation, taking many consumer claims out of the legal system and relegating them to private tribunals. In this Article, Professor Stone assesses the recent trend toward the privatization of civil justice in light …

On Misusing “Revolution” And “Reform”: Procedural Due Process And The New Welfare Act, Cynthia R. Farina

Cornell Law Faculty Publications

After a long dry spell, the debate over procedural due process flows again. The Supreme Court has announced the first major doctrinal revision in years; Congress has gutted the regulatory program that underlay Goldberg v. Kelly; and Richard Pierce has published an essay in the Columbia Law Review prophesying a radical de-evolution of due process doctrine that will bring constitutional law into line with the profound political and social revolution evidenced by welfare “reform.” My essay takes Professor Pierce's recent work as a springboard for reengaging the debate about the direction of procedural due process. I begin by recapitulating …

Are Housekeepers Like Judges?, Stephen P. Garvey

Cornell Law Faculty Publications

Professor Greenawalt proposes that we look at interpretation "from the bottom up." By taking a close look at informal relationships between an authority and his or her agent, and how the agent "faithfully performs" instructions within such relationships, he hopes to gain insight into the problems surrounding the interpretation of legal directives. The analysis of "faithful performance" in informal contexts which Professor Greenawalt presents in From the Bottom Up is the first step in a larger project. His next step is to see what lessons the interpretation of instructions in informal contexts has for law. This Comment tries to contribute …

Ending Welfare, Leaving The Poor To Face New Risk, Jeffrey S. Lehman, Sheldon Danziger

Cornell Law Faculty Publications

No abstract provided.

Who Are The Parents Of Biotechnological Children?, Larry I. Palmer

Cornell Law Faculty Publications

No abstract provided.

A Rejoinder, Larry I. Palmer

Cornell Law Faculty Publications

No abstract provided.

The Deceptive Nature Of Rules, Larry Alexander, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

The Many Contexts Of Welfare Reform, Jeffrey S. Lehman

Cornell Law Faculty Publications

No abstract provided.

The Argument From Ordinary Meaning In Statutory Interpretation, Robert S. Summers, Geoffrey Marshall

Cornell Law Faculty Publications

No abstract provided.

Bankruptcy In The Administrative State, Theodore Eisenberg

Cornell Law Faculty Publications

The Art Of Decoupling: Keeping Social Security's Promise Up-To-Date, Peter W. Martin

Cornell Law Faculty Publications

No abstract provided.

Property, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.