Law Commons^™

Equal Access And The Right To Marry, Nelson Tebbe, Deborah A. Widiss

Cornell Law Faculty Publications

How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal …

The Dance Of Death Or (Almost) "No One Here Gets Out Alive": The Fourth Circuit's Capital Punishment Jurisprudence, John H. Blume

Cornell Law Faculty Publications

No abstract provided.

Why Heightened Pleading - Why Now?, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

No abstract provided.

Iqbal And Bad Apples, Michael C. Dorf

Cornell Law Faculty Publications

In addition to its important implications for federal civil procedure, the Supreme Court’s decision in Ashcroft v. Iqbal put the imprimatur of the Supreme Court on a troubling narrative of the excesses carried out by the Bush Administration in the name of fighting terrorism. In this “few bad-apples narrative,” harsh treatment of detainees—especially in the immediate wake of the attacks of September 11th, but also years later in such places as Afghanistan, Iraq, the Guantanamo Bay detention center, and elsewhere—was the work of a small number of relatively low-ranking military and civilian officials who went beyond the limits of the …

Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part One, John H. Blume, Emily C. Paavola

Cornell Law Faculty Publications

This article addresses the Fifth Amendment issues to be considered when analyzing the admissibility of a criminal defendant's out-of-court statements.

The Truth About Property Rules: Some Obstacles To The Economic Analysis Of Remedies, Emily Sherwin

Cornell Law Faculty Publications

Property Rules, as famously described by Calabresi and Melamed, are remedial rules that place a prohibitively high penalty on violations of rights. This essay examines two aspects of property rules. In each case, the form of the rule is critically important. The first question addressed is the capacity of property rules to affect behavior that takes place outside the context of litigation. Most economic analysis assumes that when a right is protected by a property rule, the property rule will guide private decisionmaking at the time of a contemplated violation, and possibly before that time. Yet, to have this effect, …

Why Adr Programs Aren’T More Appealing: An Empirical Perspective, Michael Heise

Cornell Law Faculty Publications

Standard law and economic theory suggests that litigating parties seeking to maximize welfare will participate in alternative dispute resolution (ADR) programs if they generate a surplus. ADR programs claim to generate social surplus partly through promoting settlements and reducing case disposition time. Although most associate ADR programs with trial courts, a relatively recent trend involves appellate court use of ADR programs. The emergence of court-annexed ADR programs raises a question. Specifically, if ADR programs achieve their goals of promoting settlements and reducing disposition time, why do some courts find it necessary to impose ADR participation? Attention to ADR’s ability to …

Beyond The Expected: Creating And Sustaining Relationships For Your Institutions, Claire M. Germain

Cornell Law Faculty Publications

In this day of upheaval in the library and information world, many law librarians have found ways to reaffirm their value to their parent organizations. They have created and now sustain relationships for their institutions—law schools, law firms, government entities, and other organizations—because they have the common good of the institution in mind and are there to stay. The purpose of this article is to inform, inspire, celebrate, and provide concrete examples for other libraries to follow. Library initiatives can lead to benefits for the institution that are larger than the library itself. They also reinforce the value of the …

Inventing Tests, Destabilizing Systems, Kevin M. Clermont, Stephen C. Yeazell

Cornell Law Faculty Publications

The U.S. Supreme Court revolutionized the law on pleading by its suggestive Bell Atlantic Corp. v. Twombly and definitive Ashcroft v. Iqbal. But these decisions did more than redefine the pleading rules: by inventing a foggy test for the threshold stage of every lawsuit, they have destabilized the entire system of civil litigation. This destabilization should rekindle a wide conversation about fundamental choices made in designing our legal system.

Those choices are debatable. Thus, the bone this Article picks with the Court is not that it took the wrong path for pleading, but that it blazed a new and unclear …

Beyond The Expected: Creating And Sustaining Relationships For Your Institutions, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

Achieving The Potential: The Future Of Federal E-Rulemaking, Report Of The Committee On The Status And Future Of Federal E-Rulemaking, Cynthia R. Farina

Cornell Law Faculty Publications

No abstract provided.

Reframing Financial Regulation, Charles K. Whitehead

Cornell Law Faculty Publications

Financial regulation today is largely framed by traditional business categories. The financial markets, however, have begun to bypass those categories, principally over the last thirty years. Chief among the changes has been convergence in the products and services offered by traditional intermediaries and new market entrants, as well as a shift in capital-raising and risk-bearing from traditional intermediation to the capital markets. The result has been the reintroduction of old problems addressed by (but now beyond the reach of) current regulation, and the rise of new problems that reflect change in how capital and financial risk can now be managed …

False Comfort And Impossible Promises: Uncertainty, Information Overload, And The Unitary Executive, Cynthia R. Farina

Cornell Law Faculty Publications

The movement toward President-centered government is one of the most significant trends in modern American history. This trend has been accelerated by unitary executive theory, which provided constitutional and “good government” justifications for what political scientists have been calling the “personal” or “plebiscitary” presidency.

This essay draws on cognitive, social and political psychology to suggest that the extreme cognitive and psychological demands of modern civic life make us particularly susceptible to a political and constitutional ideology organized around a powerful and beneficent leader who champions our interests in the face of internal obstacles and external threats. The essay goes on …

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Cornell Law Faculty Publications

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …

Making Sense Of The Health Care Reform Debate, Robert C. Hockett

Cornell Law Faculty Publications

It has been bemusing to behold how ill-informed, mis-informed, and even dis-informed much of the current debate over health care reform has been these past several months. Some of the trouble surely has stemmed from bad faith on the part of some protagonists. Another part of the trouble has stemmed from ineffective communication on the part of other protagonists. Much of our trouble, however, might stem from less than full clarity on all of our parts about two facts. The first is that in talking about “health care reform” as a public policy issue, we are actually talking about social …

The Need For A National Civil Justice Survey Of Incidence And Claiming Behavior, Theodore Eisenberg

Cornell Law Faculty Publications

Civil justice issues play a prominent role in society. Family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behaviors are part of the fabric of daily life. Policymakers and interest groups regularly debate and assess whether civil problems are best resolved by legislative action, agency action, litigation, alternative dispute resolution, other methods, or some combination of actions. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice …

Rethinking The Future Of Self-Regulation In The Financial Industry, Saule T. Omarova

Cornell Law Faculty Publications

In today's post-crisis world, arguing in favor of self-regulation in the financial services industry is sure to raise many eyebrows and invite significant disagreement. Much of the skepticism in this respect may be fully justified: the lack of truly effective incentives or political obstacles may ultimately foreclose the possibility of creating a new regime of embedded self-regulation aimed at detection and prevention of systemic financial risks. Nevertheless, as this Article sought to demonstrate, the realities of today's financial marketplace make it critically important that we give the idea of industry self-regulation a full consideration.

The main goal of this Article …

Affirmative Action In Higher Education Over The Next Twenty-Five Years: A Need For Study And Action, Sandra Day O'Connor, Stewart Schwab

Cornell Law Faculty Publications

No abstract provided.

Japan's New Lay Judge System: Deliberative Democracy In Action?, Zachary Corey, Valerie P. Hans

Cornell Law Faculty Publications

No abstract provided.

Enhancing Enforcement Of Economic, Social, And Cultural Rights Using Indicators: A Focus On The Right To Education In The Icescr, Sital Kalantry, Jocelyn E. Getgen, Steven A. Koh

Cornell Law Faculty Publications

Nearly fifteen years ago, Audrey Chapman emphasized the importance of ascertaining violations of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a means to enhance its enforcement. Today, this violations approach is even more salient given the recent adoption of the Optional Protocol to the ICESCR. This article focuses on the right to education in the ICESCR to illustrate how indicators can be employed to ascertain treaty compliance and violations. Indicators are important to enforcing economic, social, and cultural rights because they assist in measuring progressive realization. The methodology that we propose calls for: 1) analyzing the …

Privacy As Product Safety, James Grimmelmann

Cornell Law Faculty Publications

Online social media confound many of our familiar expectations about privacy. Contrary to popular myth, users of social software like Facebook do care about privacy, deserve it, and have trouble securing it for themselves. Moreover, traditional database-focused privacy regulations on the Fair Information Practices model, while often worthwhile, fail to engage with the distinctively social aspects of these online services.

Instead, online privacy law should take inspiration from a perhaps surprising quarter: product-safety law. A web site that directs users' personal information in ways they don't expect is a defectively designed product, and many concepts from products liability law could …

D Is For Digitize: An Introduction, James Grimmelmann

Cornell Law Faculty Publications

This symposium issue of the New York Law School Law Review collects seven articles springing from the D Is for Digitize conference on the Google Books lawsuit and settlement, held at New York Law School October 8-10, 2009. In the spirit of Chaucer's "good feyth," thirty panelists and over one hundred attendees (plus dozens more watching online) gathered to discuss the legal and social issues raised by the proposed settlement. For three days, lawyers, academics, librarians, programmers, and public-interest advocates met for a rich, respectful, and wide-ranging conversation on this once-in-a-lifetime settlement. These articles continue that conversation.

Deconstructing Nondelegation, Cynthia R. Farina

Cornell Law Faculty Publications

This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law “right,” for nondelegation doctrine—at least as traditionally stated—does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly rather than …

Toward Internationally Regulated Goods: Controlling The Trade In Small Arms And Light Weapons, Asif Efrat

Cornell Law Faculty Publications

Contrary to the general trend of trade liberalization, specific goods—such as small arms, drugs, and antiquities—have come under increasing international control in recent decades through a set of international regulatory agreements. This article offers a theoretical framework of government preferences on the international regulation of these goods. Departing from conventional models of trade policy, the theoretical framework introduces negative externalities, rather than protection, as the motivation for restricting trade; it also takes moral concerns into account. I test this framework empirically through an original survey of government views on international small-arms regulation. Based on interviewing officials from 118 countries, the …

The Argument For Same-Sex Marriage, Nelson Tebbe, Deborah A. Widiss, Shannon Gilreath

Cornell Law Faculty Publications

Professors Tebbe and Widiss revisit the arguments they made in "Equal Access and the Right to Marry" and emphasize their belief that distinguishing between different-sex marriage and same-sex marriage is inappropriate. They lament the sustained emphasis on the equal-protection and substantive-due-process challenges in the Perry litigation and suggest that an equal-access approach is more likely to be successful on appeal.

Professor Shannon Gilreath questions some of the fundamental premises for same-sex marriage. He challenges proponents to truly reflect on "what there is to commend marriage to Gay people," and points to his own reversal on the question as evidence. Though …

The New Family: Challenges To American Family Law, Cynthia Grant Bowman

Cornell Law Faculty Publications

The vast demographic and social changes of the twentieth century have produced a variety of new family forms – cohabiting couples, same-sex couples, an increased number of single-parent families, and extended families resulting from divorce, for example. The legal system in the United States has yet adequately to address the legal problems that these new family forms create. This article discusses a number of major issues that arise from this failure, including: (1) the sometimes negative impact of gender-neutral rules in divorce upon women and children; (2) the ambiguity and inadequacy of property and support obligations between cohabitants; (3) the …

Solar Rights For Texas Property Owners, Sara C. Bronin

Cornell Law Faculty Publications

In response to Jamie France's note, A Proposed Solar Access Law for the State of Texas, Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids. Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. …

The Torture Lawyers, Jens David Ohlin

Cornell Law Faculty Publications

One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda regarding torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following Article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by …

Federal Governmental Power: The Voting Rights Act, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

A Reintroduction: Survival Skills For Post-Conviction Practice In South Carolina, John H. Blume, Emily C. Paavola

Cornell Law Faculty Publications

Post-conviction practice is an important safeguard against unjust, unconstitutional, and erroneous convictions. Despite the importance of the topic, the subject has historically received scant attention from legal commentators. In 1994, "An Introduction to Post-Conviction Remedies, Practice And Procedure in South Carolina" was published. At the time, very little had been written about the post-conviction remedies available to prisoners in South Carolina, and the article was intended to introduce appointed counsel and pro se inmates to the various post-conviction remedies available. In the forty years since its initial enactment, South Carolina's Post-Conviction Relief (PCR) Act was amended three times, the South …