Law Commons^™

Fallback Law, Michael C. Dorf

Cornell Law Faculty Publications

Legislatures sometimes address the risk that a court will declare all or part of a law unconstitutional by including "fallback" provisions that take effect on condition of such total or partial invalidation. The most common kind of fallback provision is a severability clause, which effectively creates a fallback of the original law minus its invalid provisions or applications. However, fallback law can and sometimes does take the express form of substitute provisions. Fallback law can raise a surprisingly large number of constitutional and policy questions. A fallback provision itself must be constitutional, but how to discern the constitutionality of the …

Evidence Of The Need For Aggregate Litigation, Theodore Eisenberg

Cornell Law Faculty Publications

In the experimental game designed by GÜTH et al. [2007], player 1 has promised to render a service to player 2. Player 1 either invests proper effort or shirks and performance may succeed or fail depending on random fluctuation. When player 1 fails to invest proper effort, and performance occurs or not through luck, player 2 must decide whether to punish player 1’s nonperformance. When the transaction fails, punishment may be sought through suing. When the transaction fails, player 2 may seek revenge or punishment though doing so incurs costs to player 2. The game’s design resembles civil enforcement rather …

Foreigners' Fate In America's Courts: Empirical Legal Research, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

This article revisits the controversy regarding how foreigners fare in U.S. courts. The available data, if taken in a sufficiently big sample from numerous case categories and a range of years, indicate that foreigners have fared better in the federal courts than their domestic counterparts have fared. Thus, the data offer no support for the existence of xenophobic bias in U.S. courts. Nor do they establish xenophilia, of course. What the data do show is that case selection drives the outcomes for foreigners. Foreigners’ aversion to U.S. forums can elevate the foreigners’ success rates, when measured as a percentage of …

Heuristics And Biases In Bankruptcy Judges, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Cornell Law Faculty Publications

Do specialized judges make better decisions than judges who are generalists? Specialized judges surely come to know their area of law well, but specialization might also allow judges to develop better, more reliable ways of assessing cases. We assessed this question by presenting a group of specialized judges with a set of hypothetical cases designed to elicit a reliance on common heuristics that can lead judges to make poor decisions. Although the judges resisted the influence of some of these heuristics, they also expressed a clear vulnerability to others. These results suggest that specialization does not produce better judgment.

Comments On The Comments, Robert S. Summers

Cornell Law Faculty Publications

The paper replies to Bix and Soper (Bix 2007; Soper 2007). Bix’s paper raises methodological questions, especially whether a form-theorist merely needs to reflect on form from the arm-chair so to speak. A variety of methods is called for, including conceptual analysis, study of usage, “education in the obvious,” general reflection on the nature of specific functional legal units, empirical research on their operation and effects, and still more. Further methodological remarks are made in response to Soper’s paper. Soper suggests the possibility of substituting “form v. substance” of a unit as the central contrast here rather than form v. …

Racism, Unreasonable Belief, And Bernhard Goetz, Stephen P. Garvey

Cornell Law Faculty Working Papers

How should the law respond when one person (D) kills another person (V), who is black, because D believes that V is about to kill him, but D would not have so believed if V had been white? Should D be exonerated on grounds of self-defense? The canonical case raising this question is People v. Goetz. Some commentators argue that norms of equal treatment and anti-discrimination require that D’s claim of self-defense be rejected. I argue that denying D’s claim of self-defense would be at odds with the principle that criminal liability should only be imposed on an actor if …

Transparency And Textuality: Wilkie Collins' Law Books, Bernadette A. Meyler

Cornell Law Faculty Publications

This article takes as its starting point the priority that Anglo-American legal thought has, in recent centuries, placed upon transparency, a priority that has relied, in large part, on the notion that the law should increasingly be recorded and publicly accessible. Through his representation of trial narratives - an extremely popular quasi-literary form during the nineteenth century - as well as the work of William Blackstone in his supposedly comprehensive Commentaries on the Laws of England, nineteenth-century novelist Wilkie Collins calls into question the idea that simply disseminating textual versions of the law or the records of legal processes will …

Standing Room Only: Why Fourth Amendment Exclusion And Standing Can No Longer Logically Coexist, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

Social Science And Legal Policy: The Case Of Heterosexual Cohabitation, Cynthia Grant Bowman

Cornell Law Faculty Publications

The rate at which people live together in unmarried unions has increased enormously in recent decades, making this one of the remarkable social changes of our era. The response to this change in the law review literature has been inadequate. Recent articles about cohabitation have argued simply that the institution of marriage is better than cohabitation for both the couple and their children, and the law should therefore be structured so as to discourage this conduct, because to give legal protections to cohabitants will harm the institution of marriage. This article explores the findings of social scientists about cohabitation and …

How To Create A Commercial Calamity, Robert A. Hillman

Cornell Law Faculty Publications

This Article briefly catalogs the kinds of commercial calamities and then focuses on one of them, namely laws that are so imprecise and ambiguous that judges do not know how to apply them, and lawyers cannot explain them. The Article illustrates the problem with Uniform Commercial Code (UCC) section 2-209, dealing with contract modification and waiver. The paper does not focus on the ambiguities and obfuscations of section 2-209, but on the strategy of lawmaking that inevitably produces such a result. The drafters of section 2-209 ambitiously sought to reform the law, but then lost their nerve. In short, they …

Legal Change, Gerald Torres

Cornell Law Faculty Publications

The "demos" in demosprudence is meant to refer to those people who are collectively mobilized to make change. Demosprudence is not "the community" at the micro level. Nor is it the "'polity" writ large whether it acts through representative decision-making or voting in referenda and initiatives. It is not the theory or practice of a riot or a lynch mob. Nor is it the study of elections, whether for representatives or referenda. It is the theory and philosophy of legal meaning making through popular mobilization that engages a "thick" form of participation by people who are pushing for change by …

Are Constitutions Legitimate?, Andrei Marmor

Cornell Law Faculty Publications

Liberalism may not have won the global victory that some commentators predicted, but constitutionalism certainly has. The vast majority of countries in the world, democratic and non-democratic alike, have written constitutions that are designed to entrench the basic legal structure of their regime. Most constitutions also enumerate a list of rights and general principles that purport to have a higher legal standing than ordinary law, and most countries entrust the interpretation of their constitution to a court of law. I will not try to speculate here about why this is the case. My aim is to scrutinize the idea of …

How To Create A Commercial Calamity, Robert A. Hillman

Cornell Law Faculty Publications

There are many ways to define a legal calamity. For example, a grossly unfair or inefficient law constitutes a legal calamity. A law that produces serious and deleterious unintended effects, such as effects opposite from those intended, is another kind of legal calamity. A law that is so imprecise and confusing that judges do not know how to apply it and lawyers do not know how to advise their clients is still another example of a legal calamity, which I focus on in this paper. Because this paper is a contribution to a symposium on commercial legal calamities, my example …

Valuing The Waiver: The Real Beauty Of Ex Ante Over Ex Post, Robert C. Hockett

Cornell Law Faculty Publications

Irony abounds in connection with demands and proposals made, in the wake of the Enron, Worldcom, and other corporate scandals, that firms be required or encouraged to waive attorney-client privilege. Justice Department officials speak to the importance of "getting at the truth" as trumping firms' interest in confidential internal communications as a prerequisite to compliance with law. They do so notwithstanding their own contrary arguments made on behalf of the secretive Bush administration that employs them. Corporate officers, for their part, speak as though Ralph Nader were the Attorney General when they denounce waiver proposals. They do so notwithstanding the …

Our Undemocratic Constitution: Where The Constitution Goes Wrong (And How We The People Can Correct It), Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In The Contracts Of Publicly Held Companies, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Informed parties bargaining for their mutual advantage will tend to agree to provisions that maximize the social surplus. Such bargaining includes provisions regarding the resolution of disputes that might arise under the contract. Thus, if a form of alternative dispute resolution, such as binding arbitration, provides greater social benefits than litigation, the dynamics of the process should tend to induce the parties to include a clause submitting future disputes to arbitration. This Article studies the actual contracting practices of large, sophisticated actors with respect to arbitration clauses. We examined over 2800 contracts, filed with the Securities Exchange Commission (SEC) in …

Deliberation And Dissent: 12 Angry Men Versus The Empirical Reality Of Juries, Valerie P. Hans

Cornell Law Faculty Publications

This article contrasts the cinematic portrayal of jury deliberation in 12 Angry Men with an empirical portrait of real world juries derived from fifty years of jury research. The messages of this iconic movie converge with the findings of research studies in some surprising ways. During the course of the movie's deliberation, the different perspectives of the movie's jurors emerge as important contributors to the jury's fact finding, reinforcing the empirical finding that diversity among jurors produces robust deliberation and superior decision making. 12 Angry Men also illustrates both the importance of majority opinions and the power of dissenters under …

Lessons From Outlaws, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

The European Constitution And Its Implications For China, Xingzhong Yu

Cornell Law Faculty Publications

The European Constitution is significant not only for the European Union, but also for a developing constitutional system like that of China. The EU constitutional practice may have positive implications on China's constitutional theory and practice. In the wake of the European constitutional achievement, Chinese constitutional scholars need to re-examine their long-held conviction in the indispensable role of the state in constitutional formation and imagination. The EU experience may have provided China with valuable insights and ways to deal with its inherited ethnic problems and improve its institutions on regional autonomy for ethnic minorities. China's own constitutional experiment in Hong …

Economic Emergency And The Rule Of Law, Bernadette Meyler

Cornell Law Faculty Publications

Academic work extolling the merits of the "rule of law" both domestically and internationally abounds today, yet the meanings of the phrase itself seem to proliferate. Two of the most prominent contexts in which rule of law rhetoric appears are those of economic development and states of emergency. In the area of private law, dissemination of the rule of law across the globe and, in particular, among emerging market countries is often deemed a prerequisite for enhancing economic development, partly because it ensures that foreign investments will not be summarily expropriated and that contractual rights will not be frustrated by …

Commentaries: The Ambiguous Work Of “Natural Property Rights”, Gregory S. Alexander

Cornell Law Faculty Publications

The three fascinating papers by Dick Helmholz, Jim Ely, and Mark Tushnet prompt me to ask, why was there so much talk among late 18th and 19th century American lawyers about property as a "natural" right and why has the language persisted today? More specifically, what work is the rhetoric of "natural property rights" intended to do? This is not the proper occasion for developing anything like complete answers to those questions, but I do want to offer three lines of thought that might begin to approach a fuller explanation of the puzzling persistence of natural-property-rights talk.

The 2006 Winthrop And Frances Lane Lecture: The Unintended Legal And Policy Consequences Of The No Child Left Behind Act, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Judges, Juries, And Scientific Evidence, Valerie P. Hans

Cornell Law Faculty Publications

The rise in scientific evidence offered in American jury trials, along with court rulings thrusting judges into the business of assessing the soundness of scientific evidence, have produced challenges for judge and jury alike. Many judges have taken up the duty of becoming “amateur scientists.” But what about juries? Surely they too could benefit from assistance as they attempt to master and apply complex testimony about scientific matters during the course of a trial. Concerns about the jury’s ability to understand, critically evaluate, and employ scientific evidence in deciding complex trials have led to many suggestions for reform.

This article …