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Full-Text Articles in Law

Rewriting Our Nation's Deadly Traffic Manual, Sara C. Bronin, Gregory H. Shill Oct 2021

Rewriting Our Nation's Deadly Traffic Manual, Sara C. Bronin, Gregory H. Shill

Cornell Law Faculty Publications

Every day, Americans entrust their lives to a road system that is governed by the Manual on Uniform Traffic Control Devices for Streets and Highways (the Manual). On its face, this Federal Highway Administration (FHWA) publication is a straightforward technical document. It contains over eight hundred pages of engineering guidance on everything from traffic-light placement to the font of highway signs. It also establishes acceptable methods for officials to modify speed limits.

While such provisions may sound inconsequential, some of the Manual’s provisions have far-reaching, even deadly, consequences. They prioritize vehicular speed over public safety, mobility over other uses ...


Inflation In The 21st Century: Taking Down The Inflationary Straw Man Of The 1970s, Daniel Alpert, Cornell Research Academy Of Development, Law, And Economics, Mario Einaudi Center For International Studies Oct 2021

Inflation In The 21st Century: Taking Down The Inflationary Straw Man Of The 1970s, Daniel Alpert, Cornell Research Academy Of Development, Law, And Economics, Mario Einaudi Center For International Studies

Cornell Law Faculty Publications

This overview of the history of, and future prospects for, undesirable levels of price inflation in the U.S. economy concludes that concerns raised in 2021 by several well-known economists and analysts – regarding the prospects for accelerating levels of inflation as a result of pandemic-era and post-pandemic fiscal and monetary policy (enacted and proposed) – is misplaced. The wisdom of continuing expanded fiscal policy from late 2021 onwards is supported by an analysis of the prospects for future inflation in terms of both (i) the shortfall in aggregate domestic demand relative to existing endogenous and exogenous supply; and (ii) the metrics ...


Competing Explanations For Parallel Conduct: Lessons From The Australian Detergent Case (Colgate-Palmolive), George Hay, E. Jane Murdoch Sep 2021

Competing Explanations For Parallel Conduct: Lessons From The Australian Detergent Case (Colgate-Palmolive), George Hay, E. Jane Murdoch

Cornell Law Faculty Publications

Parallel conduct by competing firms is an almost unavoidable phenomenon in the real world. Of course, parallel conduct can be the result of completely independent and uncontroversial behaviour, such as when all suppliers are affected by and respond unilaterally to an identical increase in costs. Few would suggest that, in such circumstances, the firms’ conduct should be subject to sanctions. At the other extreme, parallel conduct can be the result of interdependent and deliberately coordinated behaviour, such as when all suppliers meet in the proverbial smoke-filled room and agree to fix prices. Few would hesitate to condemn such conduct under ...


Rules Of The Road: The Struggle For Safety And The Unmet Promise Of Federalism, Sara C. Bronin Jul 2021

Rules Of The Road: The Struggle For Safety And The Unmet Promise Of Federalism, Sara C. Bronin

Cornell Law Faculty Publications

American streets have become increasingly dangerous. 2020 saw the highest year-over-year increase in roadway death rates in 96 years, and the last year for which we have data on non-drivers, 2018, was the was the deadliest year for pedestrians and cyclists in three decades. Though this resurgence of road violence has many complex causes, what makes American roads uniquely deadly are laws that lock in two interrelated design problems: unfriendly streets and unsafe vehicles.

Design standards articulate how streets and vehicles look and function. As they have been enshrined in law, they favor drivers and their passengers over any other ...


Transnational Law As A Framework For Law Clinics, Sital Kalantry, Rachael E. Hancock Feb 2021

Transnational Law As A Framework For Law Clinics, Sital Kalantry, Rachael E. Hancock

Cornell Law Faculty Publications

As the law becomes increasingly globalised and online education is increasingly emphasised, clinical legal education presents new opportunities for transnational collaboration. With more law schools introducing global clinical experiences into their curriculum, clinicians, students, clients, and practitioners are facing a host of new questions, challenges, and obstacles. These challenges are practical, logistical, ethical, and cultural. As research has found, finding a means of addressing these issues in ways that advance social justice has proven difficult. Striking a balance between client service and student learning, navigating relationships between different learning institutions, and setting ambitious but attainable goals are important elements of ...


Law’S Disaster: Heritage At Risk, Sara C. Bronin Jan 2021

Law’S Disaster: Heritage At Risk, Sara C. Bronin

Cornell Law Faculty Publications

Large-scale meteorological and geological events—including hurricanes, tropical storms, tornadoes, floods, blizzards, wildfires, earthquakes, extreme heat, and drought—have many consequences: loss of life, economic catastrophe, and destruction of homes among them. Perhaps less well-known are the threats to the historic and cultural sites that speak to human identity and create a sense of connection across generations. These sites are designated spaces of value, given their historical or cultural significance, and they are preserved to commemorate important moments in the story of the lived human experience. Yet hurricanes can destroy old buildings, especially ones that have not been structurally reinforced ...


The Time Has Come For Disaggregated Sovereign Bankruptcy, Odette Lienau Jan 2021

The Time Has Come For Disaggregated Sovereign Bankruptcy, Odette Lienau

Cornell Law Faculty Publications

The ongoing economic crisis caused by the COVID-19 pandemic has generated important proposals for addressing countries’ financial distress in the short to medium term. However, it has also made even more apparent the existing gaps in the global financial architecture writ large and highlighted the extent to which key actors pay closest attention to this infrastructure in situations of crisis. By then, of course, it is already too late.

This essay argues that the international community should use the energy generated in the current context to move toward ‘disaggregated sovereign bankruptcy’—which can be understood as a framework by which ...


The Contested Boundaries Of Emerging International Migration Law In The Post-Pandemic, Ian M. Kysel, Chantal Thomas Nov 2020

The Contested Boundaries Of Emerging International Migration Law In The Post-Pandemic, Ian M. Kysel, Chantal Thomas

Cornell Law Faculty Publications

One measure of how and whether the COVID-19 pandemic reshapes the emerging field of international migration law will be the extent to which transnational civil society and activist movements can counteract the intensification of state border controls that the pandemic has triggered. Before the pandemic, transnational efforts to establish a new normative framework for migration seemed to be accelerating. These efforts included new, if nonbinding, global compacts on refugees and migration, and new, if modest, efforts at facilitating global cooperation, alongside innovative approaches to scholarly engagement. Such developments arguably contributed to an emerging framework for protecting migrants under international law ...


Harm To Border Irreparable, Sara C. Bronin Jul 2020

Harm To Border Irreparable, Sara C. Bronin

Cornell Law Faculty Publications

No abstract provided.


Recruiting For The Future: A Realistic Road To A Points-Tested Visa Program In The United States, Stephen W. Yale-Loehr, Mackenzie Eason Jul 2020

Recruiting For The Future: A Realistic Road To A Points-Tested Visa Program In The United States, Stephen W. Yale-Loehr, Mackenzie Eason

Cornell Law Faculty Publications

For over 40 years, lawmakers and academics have been debating whether the United States should adopt a merit-or skills-based approach to labor immigration and a points-based program for selecting foreign workers. Despite having bipartisan support, efforts to adopt such a program thus far have been unsuccessful.

This idea is now back at the center of public debate, having been given new life by President Trump. He has called for “merit-based” immigration reforms that would make the United States more effective at attracting the world’s “best and brightest” and make it more competitive in the global marketplace for highly skilled ...


Recklessness, Intent, And War Crimes: Refining The Legal Standard And Clarifying The Role Of International Criminal Tribunals As A Source Of Customary International Law, Brian L. Cox Jun 2020

Recklessness, Intent, And War Crimes: Refining The Legal Standard And Clarifying The Role Of International Criminal Tribunals As A Source Of Customary International Law, Brian L. Cox

Cornell Law Faculty Publications

This Article explores the substantive and procedural aspects of the assertion that recklessness is included on the spectrum of mens rea for war crimes as a matter of customary international law. The substantive aspect of the inquiry, in Part I, engages in a critical assessment of the assertion that the jurisprudence of international criminal tribunals indicates that recklessness is sufficient to support a war crimes prosecution in general. The procedural aspect, in Part II, contests the prevailing “principal-agent” construct of describing the relationship between states and international criminal tribunals and the resulting role of tribunals in establishing customary international law ...


Reconciling Forum-Selection And Choice-Of-Law Clauses, Kevin M. Clermont May 2020

Reconciling Forum-Selection And Choice-Of-Law Clauses, Kevin M. Clermont

Cornell Law Faculty Publications

In a recent article, Professor Tanya Monestier argued that courts should change their ways so as to apply lex fori to all questions involving forum-selection clauses. I agree that lex fori governs matters of enforceability, but I disagree as to matters of interpretation. On the basis of case law and policy arguments, I argue that the law chosen by the contract should govern interpretation of the forum-selection clause.


Rules, Standards, And Such, Kevin M. Clermont May 2020

Rules, Standards, And Such, Kevin M. Clermont

Cornell Law Faculty Publications

This Article aims to create a complete typology of the forms of decisional law. Distinguishing "rules" from "standards" is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image.

A clearer distinction would be useful in formulating and applying the law. For the law-applier ...


More Contract Lore, Robert A. Hillman May 2020

More Contract Lore, Robert A. Hillman

Cornell Law Faculty Publications

Contract lore consists of “traditional beliefs” about contract law that judges, lawyers, and scholars applying and writing about contract law, employ so routinely and confidently that the principles demonstrate how we perceive contract law today. Previously, I presented three illustrations of contract lore: First, expectancy damages put the injured party in as good a position as if there were no breach. Second, the reasons for a breach, “whether willful, negligent, or unavoidable, are irrelevant to the rules of performance and remedies.” Third, contract formation and interpretation focus on the parties’ intentions.

None of these principles are factually or historically even ...


Medical And Mental Health Implications Of Gestational Surrogacy And Trends In State Regulations On Compensated Gestational Surrogacy: A Report Submitted To The New York State Legislature, Steven Spandorfer, Allison Petrini, Sital Kalantry Mar 2020

Medical And Mental Health Implications Of Gestational Surrogacy And Trends In State Regulations On Compensated Gestational Surrogacy: A Report Submitted To The New York State Legislature, Steven Spandorfer, Allison Petrini, Sital Kalantry

Cornell Law Faculty Publications

As the New York State legislature considers legalizing compensated gestational surrogacy this legislative session, this report provides insight into (1) the impact of surrogacy on the medical and mental health of women who become surrogates and the children born through gestational surrogacy, and (2) how other state legislatures have addressed compensated gestational surrogacy in recent years.

Medical research demonstrates that there is significant growth in gestational surrogacy in the United States. The number of families working with gestational surrogates has quadrupled in the new millennium. Weill Cornell Medicine physicians and medical students reviewed the published literature on the medical and ...


The Multiple Selves Of Economic Self-Determination, Odette Lienau Feb 2020

The Multiple Selves Of Economic Self-Determination, Odette Lienau

Cornell Law Faculty Publications

In this Essay, I argue that the contemporary world requires an explicitly plural and flexible conception of economic self-determination and especially a broader vision of the economic “self” at its center. I contend that older dyadic understandings of economic self-determination, formed largely in light of twentieth-century anticolonial struggles, are no longer sufficient. Individuals can be economically constrained across multiple vectors by newly powerful actors and innovative forms of control. They are thus potentially implicated in multiple political and economic selves—not just personal but also local, national, and transnational.

As such, those seeking to promote economic self-determination should more explicitly ...


A Theory Of Factfinding: The Logic For Processing Evidence, Kevin M. Clermont Jan 2020

A Theory Of Factfinding: The Logic For Processing Evidence, Kevin M. Clermont

Cornell Law Faculty Publications

Academics have never agreed on a theory of proof. The darkest corner of anyone’s theory has concerned how legal decisionmakers logically should find facts. This Article pries open that cognitive black box. It does so by employing multivalent logic, which enables it to overcome the traditional probability problems that impeded all prior attempts. The result is the first-ever exposure of the proper logic for finding a fact or a case’s facts.

The focus will be on the evidential processing phase, rather than the application of the standard of proof as tracked in my prior work. Processing evidence involves ...


Minding The Empagran Gap, Maggie Gardner Jan 2020

Minding The Empagran Gap, Maggie Gardner

Cornell Law Faculty Publications

No abstract provided.


Spyware Vs. Spyware: Software Conflicts And User Autonomy, James Grimmelmann Jan 2020

Spyware Vs. Spyware: Software Conflicts And User Autonomy, James Grimmelmann

Cornell Law Faculty Publications

No abstract provided.


Dealing With Disruption: Emerging Approaches To Fintech Regulation, Saule T. Omarova Jan 2020

Dealing With Disruption: Emerging Approaches To Fintech Regulation, Saule T. Omarova

Cornell Law Faculty Publications

“Fintech” refers to a variety of digital assets, technologies, and infrastructure that deal with the operation of today’s financial markets. The regulation of this presents both legal and regulatory challenges. This article examines the regulatory responses to fintech disruption; specifically, the “experimentation” approach, the “incorporation” approach, and the “accommodation” approach. These approaches provide a baseline for further discussion and policy analysis in response to “Fintech.”


Sovereign Debt, Private Wealth, And Market Failure, Odette Lienau Jan 2020

Sovereign Debt, Private Wealth, And Market Failure, Odette Lienau

Cornell Law Faculty Publications

This Article argues that the norms and legal practices of global finance in the arenas of sovereign debt and private wealth have led to a significant market failure, in particular the over-supply of sovereign borrowing and a related misallocation of global capital away from its most productive uses. It suggests that this deficiency rests on two related elements: First, a separation of the risks and benefits of sovereign state control, which has resulted from a failure to properly and coherently define the lines between ‘public’ and ‘private’ across the international financial arenas of sovereign borrowing and private client banking. And ...


Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow Jan 2020

Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow

Cornell Law Faculty Publications

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon’s work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and ...


When Contact Kills: Indigenous Peoples Living In Voluntary Isolation During Covid, Sital Kalantry, Nicholas Koeppen Jan 2020

When Contact Kills: Indigenous Peoples Living In Voluntary Isolation During Covid, Sital Kalantry, Nicholas Koeppen

Cornell Law Faculty Publications

During the global pandemic, people around the world are at risk of serious illness and death from contact and proximity to other people. But Indigenous peoples, particularly those in voluntary isolation, have always faced that risk. International organizations have relied on the right to self-determination as the primary legal grounds to justify the principle of no-contact for Indigenous peoples living in voluntary isolation. This Essay argues that the right to life and right to health when properly contextualized are stronger bases to push states to prevent outsiders from contacting people living in voluntary isolation.


Challenging H-1b Denials In Federal Courts: Trends And Strategies, Hun Lee, Stephen W. Yale-Loehr Dec 2019

Challenging H-1b Denials In Federal Courts: Trends And Strategies, Hun Lee, Stephen W. Yale-Loehr

Cornell Law Faculty Publications

The denial rate for H-1B petitions has quadrupled over the past few years, increasing from six percent in fiscal year (FY) 2015 to twenty-four percent in FY 2018. After President Trump issued his ‘‘Buy American and Hire American’’ executive order in April 2017, U.S. Citizenship and Immigration Services (USCIS) has effectively raised the standard of proof on H-1B petitions.

USCIS has used several reasons to deny H-1B petitions, including claims that the employer failed to show that a position qualifies as a ‘‘specialty occupation,’’ impermissibly assigned employees to third-party worksites, or failed to pay the required wage.

Under USCIS ...


Post-Denial Strategies: How To Get From "No" To "Yes", Diane M. Butler, Leslie K. Dellon, David Isaacson, Stephen W. Yale-Loehr Nov 2019

Post-Denial Strategies: How To Get From "No" To "Yes", Diane M. Butler, Leslie K. Dellon, David Isaacson, Stephen W. Yale-Loehr

Cornell Law Faculty Publications

U.S. Citizenship and Immigration Services (USCIS) seems to be denying more petitions than ever these days. Cases that were solid approvals a few years ago now are receiving denials, even though the law and regulations have not changed. But don’t give up hope. Opportunities exist to overcome denials.

This practice advisory focuses on post-denial strategies for petitions filed with USCIS, not strategies in immigration court. The article discusses motions to reopen, motions for reconsideration, appeals to the USCIS Administrative Appeals Office (AAO), and litigation. This practice advisory also discusses when filing a new petition may be a better ...


Misdemeanor Appeals, Nancy J. King, Michael Heise Oct 2019

Misdemeanor Appeals, Nancy J. King, Michael Heise

Cornell Law Faculty Publications

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one. Yet little empirical information exists on many aspects of misdemeanor prosecutions. This Article provides the first quantitative look at appellate review in misdemeanor cases nationwide. It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts ...


Split Derivatives: Inside The World's Most Misunderstood Contract, Dan Awrey Jul 2019

Split Derivatives: Inside The World's Most Misunderstood Contract, Dan Awrey

Cornell Law Faculty Publications

Derivatives are the "bad boys" of modern finance: exciting, dangerous, and fundamentally misunderstood. These misunderstandings stem from the failure of scholars and policymakers to fully appreciate the unique legal and economic structure of derivative contracts, along with the important differences between these contracts and conventional equity and debt securities. This Article seeks to correct these misunderstandings by splitting derivative contracts open, identifying their constituent elements, and observing how these elements interact with one another. These elements include some of the world's most sophisticated state-contingent contracting, the allocation of property and decision-making rights, and relational mechanisms such as reputation and ...


New Tech V. New Deal: Fintech As A Systemic Phenomenon, Saule T. Omarova Jul 2019

New Tech V. New Deal: Fintech As A Systemic Phenomenon, Saule T. Omarova

Cornell Law Faculty Publications

Fintech is the hottest topic in finance today. Recent advances in cryptography, data analytics, and machine learning are visibly "disrupting" traditional methods of delivering financial services and conducting financial transactions. Less visibly, fintech is also changing the way we think about finance: it is gradually recasting our collective understanding of the financial system in normatively neutral terms of applied information science. By making financial transactions easier, faster, and cheaper, fintech seems to promise a micro-level "win-win" solution to the financial system's many ills.

This Article challenges such narratives and presents an alternative account of fintech as a systemic, macro-level ...


Money's Past Is Fintech's Future: Wildcat Crypto, The Digital Dollar, And Citizen Central Banking, Robert C. Hockett Jun 2019

Money's Past Is Fintech's Future: Wildcat Crypto, The Digital Dollar, And Citizen Central Banking, Robert C. Hockett

Cornell Law Faculty Publications

This Essay argues that crypto-currencies will soon go the way of the ‘wildcat’ banknotes of the mid-19th century. As central banks worldwide upgrade their payments systems, the Fed will begin issuing a ‘digital dollar’ that leaves no licit function for what the Author calls ‘wildcat crypto.’ But the imminent change heralds more than a shakeout in fintech. It will also make possible a new era of what the Author calls ‘Citizen Central Banking.’ The Fed will administer a national system of ‘Citizen Accounts.’ This will not only end the problem of the ‘unbanked,’ it will also simplify monetary policy. Instead ...


The 'Too Big To Fail' Problem, Saule T. Omarova Jun 2019

The 'Too Big To Fail' Problem, Saule T. Omarova

Cornell Law Faculty Publications

“Too big to fail” – or “TBTF” – is a popular metaphor for a core dysfunction of today’s financial system: the recurrent pattern of government bailouts of large, systemically important financial institutions. The financial crisis of 2008 made TBTF a household term, a powerful rhetorical device for expressing the widely shared discontent with the pernicious pattern of “privatizing gains and socializing losses” it came to represent in the public’s eye. Ten years after the crisis, TBTF continues to frame much of the public policy debate on financial regulation. Yet, the analytical content of this term remains remarkably unclear.

Taking a ...