Law Commons^™

A New Reporter Confronts The Supreme Court’S Unpublished Decisions, Peter W. Martin

Cornell Law Faculty Working Papers

For over two hundred years, the United States Supreme Court has been served by an officially designated “Reporter” charged with overseeing the publication of its decisions. While the statutory framework within which the Court’s Reporter of Decisions must operate has been revised from time to time, it has always reflected the need for that publication to be timely. It has also been focused solely on the production of printed volumes, a growing anachronism in an era of linked and searchable law data. Because of the disconnect, delays in official publication of the Court’s decisions grew over the course of this …

Representative Sara Jacobs And Senator Dick Durbin Take Aim At The Dod Law Of War Manual – And Miss, Brian L. Cox

Cornell Law Faculty Working Papers

In a letter recently sent to the Department of Defense General Counsel, two lawmakers – Representative Sara Jacobs and Senator Dick Durbin – present a number of suggested revisions to the DoD Law of War Manual. In Part I, this Article conducts a critical assessment of the substantive suggestions. By adopting an approach that emphasizes maintaining the delicate balance between humanitarian considerations and military necessity, the critical assessment concludes that the suggested revisions to the Manual are inadvisable.

Part II then considers the Jacobs-Durbin letter in the broader context of public discourse and separation of powers. This component of the …

New York Times, Law Of War, And Congressional Overreach In U.S. Military Operations, Brian L. Cox

Cornell Law Faculty Working Papers

Recent high-profile reporting by the New York Times and other media organizations involving U.S. military combat operations has elevated public awareness related to Department of Defense targeting and accountability practices. While scandal generated by media coverage forms the basis for demands for reform of DoD practice from civil society groups and select members of Congress, the narratives developed in the investigative reporting have thus far not been exposed to comprehensive scrutiny. This article conducts a critical analysis of recent New York Times reporting involving U.S. military combat operations to assess the legitimacy of the narratives developed therein. After considering various …

U.S. Micromobility Law (Major Road Work Ahead), Peter W. Martin

Cornell Law Faculty Working Papers

Over the past decade electrically powered bicycles, stand-up scooters, skateboards, and more have burst onto the nation’s streets and sidewalks. While some have been owned by their riders, a combination of embedded technology and smartphone apps allowed well-funded start-ups to distribute these novel e-vehicles across urban public spaces, making them available for on-demand, short-term rental. This blossoming of “micromobility” has taken place within physical and legal infrastructures ill-prepared for the change. Indisputably, most of the new types of individual motorized mobility fell outside established vehicle categories. The literal terms of existing law banned their use on all public rights of …

A Detailed Assessment Of The Sexual Assault Prevalence Statistics At The Center Of The Military Justice Reform Movement, Brian L. Cox

Cornell Law Faculty Working Papers

“Twenty thousand service members experience sexual assault every year” while “only a tiny fraction of those end up with any kind of action at all in the military justice system.” Lynn Rosenthal, director of the DoD Independent Review Commission, recently offered this observation at a press conference while summarizing the findings reflected in the commission’s report. Senator Kirsten Gillibrand indicated in a recent blog post that “an estimated 20,500 service members are sexually assaulted every year” to make the case that there “is an epidemic of sexual assault in the military and the current military justice system has proven incapable …

Measuring The Effectiveness Of The Proposal To Divest Military Commanders Of Disposition Authority For Sexual Assault Cases: A Comparative Quantitative Analysis, Brian L. Cox

Cornell Law Faculty Working Papers

As suggestions to modify the practice of the U.S. military justice system return to the fore of American political discourse, the perennial proposal to divest commanders of authority to convene courts-martial to adjudicate allegations of sexual assault is once again at the center of the debate. While reformists are adamant that the suggested revision would support efforts to end what has been characterized as an “epidemic of rape” in the U.S. military, the precise connection between the “reform” and the desired improved outcomes remains tenuous. An assessment of jurisdictions that have already divested commanders of such authority could provide persuasive …

The Capital Commons: A Plan For Building Back Better And Beyond, Robert C. Hockett

Cornell Law Faculty Working Papers

To build our Republic back better we must build our banks better. The overwhelmingly greater part of our investment capital is now publicly generated yet privately managed. But pervasive and still underappreciated recursive collective action predicaments endemic to all exchange economies, combined with the decoupling of profits from production made possible by stratified capital ‘markets’ in such economies, render this unsustainable.

The only way to get public capital allocation right, and thus to get credit modulation and long-term productive investment right, is to manage public capital publicly and private capital privately. This paper shows how to do that through the …

The Capital Commons: Digital Money And Citizens' Finance In A Productive Commercial Republic, Robert C. Hockett

Cornell Law Faculty Working Papers

All societies must address two questions where the organization of productive activity is concerned. The first is whether production will be mainly publicly managed, privately managed, or 'mixed.' The second is whether the financing of production will be mainly publicly managed, privately managed, or mixed.

In the American commercial republic, we seem more or less to have answered the 'who does production' question to our own satisfaction. From the founding era to the present, we have elected to leave production primarily, though not of course solely, 'in private hands.' Where the financing of production is concerned, on the other hand, …

Book Review Of The Quiet Power Of Indicators: Measuring Governance, Corruption, And The Rule Of Law, Sital Kalantry

Cornell Law Faculty Working Papers

No abstract provided.

Litigation Trolls, W. Bradley Wendel

Cornell Law Faculty Working Papers

Third-party financing of litigation has been described with a variety of unflattering metaphors. Litigation financers have been likened to gamblers in the courtroom casino, loan sharks, vultures, Wild West outlaws, and busybodies mucking about in the private affairs of others. Now Judge Richard Posner has referred to third-party financers as litigation trolls, an undeniably unflattering comparison to patent trolls. But what it is, if anything, that makes third-party financers “trolls”? Legal claims are, for the most part, freely assignable, the proceeds of claims are assignable, and various strangers to the underlying lawsuit, including liability insurers and plaintiffs’ contingency-fee counsel, are …

Possible Futures For The Legal Treatise In An Environment Of Wikis, Blogs, And Myriad Online Primary Law Sources, Peter W. Martin

Cornell Law Faculty Working Papers

Major law publishers have begun producing ebook versions of some of the legal treatises they own. Despite asserted advantages over both print and online versions of the same content, these represent a step back from what treatises have become within the major online services and even further from what they might become now that numerous sources of primary law are directly accessible via the Internet.

The article traces the corporate and technological developments that have placed existing treatises in their present posture. Drawing upon the author’s own work preparing a legal treatise designed for digital rather print delivery, it reviews …

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 …

Precedent In Contract Cases And The Importance(?) Of The Whole Story, Robert A. Hillman

Cornell Law Faculty Working Papers

I am honored to contribute to this symposium in honor of Bill Whitford. I have been an admirer of Bill's work for the past 39 years, which encompasses my entire teaching career. Bill's scholarship on contracts and consumer law in his law review articles and in his casebook, Contracts: Law in Action, now in its third edition with Macaulay, Braucher, and Kidwell, confirms the importance of examining the non-legal forces at work in exchange transactions, the sometimes tenuous relationship between contract rules and legal decisions, the limitations of legal opinions, and the value of focusing on the relationship of contracting …

Drafting Chapter 2 Of The Ali's Employment Law Restatement In The Shadow Of Contract Law: An Assessment Of The Challenges And Results, Robert A. Hillman

Cornell Law Faculty Working Papers

The American Law Institute (ALI) has just completed the Restatement of the Law Third, Employment Law. Chapter 2 is entitled "Employment Contracts: Termination." As the name suggests, the Chapter focuses on the law's difficult challenge of applying contract law to distinguish lawful terminations of employees from wrongful ones. The question is especially problematic because, on the one hand, employment law's long-existing default rule allows employers to terminate employees "at will" and without cause. Advocates of the at-will doctrine present several policies to support it, including freedom of contract and efficiency. On the other hand, employers seek to attract talented employees …

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

Cornell Law Faculty Working Papers

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 …

The Unexonerated: Factually Innocent Defendants Who Plead Guilty, John H. Blume, Rebecca K. Helm

Cornell Law Faculty Working Papers

Several recent high profile cases, including the case of the West Memphis Three, have revealed (again), that factually innocent defendants do plead guilty. And, more disturbingly, in many of the cases, the defendant’s innocence is known, or at least highly suspected, at the time the plea is entered. Innocent defendants plead guilty most often, but not always, in three sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their …

Juries, Lay Judges, And Trials, Toby S. Goldbach, Valerie P. Hans

Cornell Law Faculty Working Papers

“Juries, Lay Judges, and Trials” describes the widespread practice of including ordinary citizens as legal decision makers in the criminal trial. In some countries, lay persons serve as jurors and determine the guilt and occasionally the punishment of the accused. In others, citizens decide cases together with professional judges in mixed decision-making bodies. What is more, a number of countries have introduced or reintroduced systems employing juries or lay judges, often as part of comprehensive reform in emerging democracies. Becoming familiar with the job of the juror or lay citizen in a criminal trial is thus essential for understanding contemporary …

Unborn Communities, Gregory S. Alexander

Cornell Law Faculty Working Papers

Do property owners owe obligations to members of future generations? Although the question can be reframed in rights-terms so that it faces rights-oriented theories of property, it seems to pose a greater challenge to those theories of property that directly focus on the obligations that property owners owe to others rather than (or, better, along with) the rights of owner. The challenge is compounded where such theories emphasize the relationships between individual property owners and the various communities to which they belong. Do those communities include members of future generations? This paper addresses these questions as they apply to a …

Property's Ends: The Publicness Of Private Law Values, Gregory S. Alexander

Cornell Law Faculty Working Papers

Property theorists commonly suppose that property has as its ends certain private values, such as individual autonomy and personal security. This Article contends that property’s real end is human flourishing, that is, living a life that is as fulfilling as possible. Human flourishing, although property’s ultimate end, is neither monistic or simple. Rather, it is inclusive and comprises multiple values. Those values, the content of human flourishing, derives, at least in part, from an understanding of the sorts of beings we are ― social and political. A consequence of this conception of the human condition is that the values of …

Anti-Competitive Agreements: The Meaning Of “Agreement”, George A. Hay

Cornell Law Faculty Working Papers

The trend towards convergence of substantive antitrust doctrine means that most jurisdictions now condemn agreements among competitors that fix prices. But that same convergence means that those same jurisdictions must wrestle with the problem of how to establish the existence of an agreement, especially in an oligopolistic industry where high prices could, at least in theory, be the result simply of oligopolistic interdependence. Do we condemn such interdependence? Do we ignore it and require an explicit agreement? Or is there some middle ground? This chapter explores how the U.S. and, to a lesser extent, the EU, have approached the problem …

The Case For Reforming The Program's Spouse Benefits While "Saving Social Security", Peter W. Martin

Cornell Law Faculty Working Papers

The Social Security Act currently provides secondary benefits to the wives or widows of covered workers who retire, become disabled, or die. To qualify, a woman must have been married to the worker for a short period and must be old (sixty-two, dropping to sixty in the case of a widow, fifty in the case of a disabled widow) or caring for children under sixteen. If a wife’s or widow’s primary retired-worker or disability benefits equal or exceed her secondary benefit entitlement, she receives only the primary benefits. However, if her secondary benefit amount is greater she receives both her …

Changing Social Security To Achieve Long-Term Solvency And Make Other Improvements: Background Factors, Issues, Options, Peter W. Martin

Cornell Law Faculty Working Papers

For years those responsible for Social Security and policy analysts have acknowledged that the present statutory framework for determining and financing program benefits is unsustainable. Nonetheless, despite the work of Presidential commissions, countless Congressional hearings, proposals for reform advanced by individuals and groups across the political spectrum, changes to Social Security that would restore its fiscal balance into the foreseeable future have repeatedly been deferred or deflected by the nation's law-makers.

This paper aims to assist analysis of and reflection on the range of options for ensuring Social Security's future while not adding yet another solvency proposal to the already …

Were "It" To Happen: Contract Continuity Under Euro Regime Change, Robert C. Hockett

Cornell Law Faculty Working Papers

One way or another, the European Monetary Union (EMU) is apt to endure. The prospect of continuation under the precise contours of the regime as we presently find it, however, is anything but certain. Hence many investors and other actual or prospective contract parties are likely to remain skittish until matters grow clearer. This skittishness, importantly, can itself hamper the prospect of expeditious European recovery. Addressing particular sources of ongoing uncertainty about EMU prospects can itself therefore aid in the project of recovery.

This Essay accordingly aims to impose structure upon one particular, and indeed particularly complex, source of uncertainty …

Targeting Co-Belligerents, Jens David Ohlin

Cornell Law Faculty Working Papers

One of the central controversies of the targeted killing debate is the question of who can be targeted for a summary killing. The following chapter employs a novel normative framework: how to link an individual terrorist with a non-state group that threatens a nation-state. Six linking principles are catalogued and analyzed, including direct participation, co-belligerency, membership, control, complicity and conspiracy. The analysis produces counter-intuitive results, especially for civil libertarians who usually eschew status principles in favor of conduct principles. The concept of membership, a status concept central to international humanitarian law, is ideally suited to situations, like targeted killings, that …

Civil Procedure’S Five Big Ideas, Kevin M. Clermont

Cornell Law Faculty Working Papers

Civil procedure, more than any other of the basic law-school courses, conveys to students an understanding of the whole legal system. I propose that this purpose should become more openly the organizing theme of the course. The focus should remain, of course, on the mechanics of the judicial branch. What I am championing is giving some conscious attention, albeit mainly in the background and at an introductory level, to the big ideas of the constitutional structure within which the law formulates civil procedure. Such attention would unify the doctrinal study, while enriching it for the students and revealing its true …

Rewiring Old Architecture: Why U.S. Courts Have Been So Slow And Uneven In Their Take-Up Of Digital Technology, Peter W. Martin

Cornell Law Faculty Working Papers

Given the centrality of information and communication to the activities and institutions of law and government it is not surprising that during the early turbulent days of the digital revolution enthusiasts imagined that the new technology would work dramatic changes on this critical sphere, changes far greater in magnitude than those flowing from such past innovations as calculators, tape recorders, or copy machines. Students of government and consultants drew analogies between transformations taking place in the private sector (the emergence of e-commerce and distributed, virtual enterprises) and what governments might or should or would become (e-government). Greater efficiency, improved accessibility …

Forgetting Oblivion: The Demise Of The Legislative Pardon, Bernadette A. Meyler

Cornell Law Faculty Working Papers

Since the post-Civil War cases arising out of conflicts over the proper location of the amnesty power, it has generally been thought that pardon and amnesty are synonymous and that the capacity to effect both is vested in the President under Article II. The history of the English version of amnesty—oblivion—within the seventeenth and eighteenth centuries and the colonial and state oblivions that were legislatively enacted from 1650 through the period of the Second Continental Congress suggest otherwise. Oblivion was distinct from pardoning because it erased the underlying events rather than remitting punishment and often arose as a response to …

Creditors And Debt Governance, Charles K. Whitehead

Cornell Law Faculty Working Papers

This chapter from the book Research Handbook on the Economics of Corporate Law (Claire Hill & Brett McDonnell, eds.), provides an introduction to the law and economic theory relating to creditors and debt governance.

The chapter begins with a look at the traditional role of debt, focusing on the impact of debt on corporate governance and, in particular, the effect of an illiquid credit market on creditors’ reliance on covenants and monitoring. It then turns to changes in the private credit market and their effect on lending structure. Greater liquidity raises its own set of agency costs. In response, loans …

Abandoning Law Reports For Official Digital Case Law, Peter W. Martin

Cornell Law Faculty Working Papers

In 2009, Arkansas ended publication of the Arkansas Reports. Since 1837 this series of volumes, joined in the late twentieth century by the Arkansas Appellate Reports covering the state's intermediate court of appeals, had served as the official record of Arkansas's case law. For all decisions handed down after February 12, 2009, not books but a database of electronic documents “created, authenticated, secured, and maintained by the Reporter of Decisions” constitute the “official report” of all Arkansas appellate decisions.

The article examines what distinguishes this Arkansas reform from the widespread cessation of public law report publication that occurred during the …

Decisional Sequencing: Limitations From Jurisdictional Primacy And Intrasuit Preclusion, Kevin M. Clermont

Cornell Law Faculty Working Papers

This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, by weighing those various interests, the judge gets to choose the decisional sequence, although the parties can control which issues they put before the judge.

The law sees fit to put few limits on the judge’s power, and properly so. The few limits are in fact quite narrow in application, and even narrower if properly understood. The Steel Co.-Ruhrgas rule generally requires a federal court to decide …