Law Commons^™

The Persistent Vegetative State: A View Across The Legal Divide, H. Richard Beresford

Cornell Law Faculty Publications

Praise for Fred Plum can take many forms: for pedagogical dynamism, for depth and breadth of contributions to neurology and neuroscience, for sure-handed guidance of a department that has infused neurology with today’s and tomorrow’s leaders, and for a truly uncanny ability to fan a drive to excel in those he has touched. Mindful of his admonition to be substantive in what one says and does, my praise will embody a few reflections on the enduring legal and social impact of the “point of view” he and Bryan Jennett authored for the journal Lancet in 1972.

The Concept Of Religion, Eduardo M. Peñalver

Cornell Law Faculty Publications

Training In Law And Psychology: Models From The Villanova Conference, Donald N. Bersoff, Jane Goodman-Delahunty, J. Thomas Grisso, Valerie P. Hans, Norman G. Poythress Jr., Ronald G. Roesch

Cornell Law Faculty Publications

Although the domain of law and psychology is a burgeoning and popular field of study, there has never been a concerted effort to evaluate current training models or to develop newer, more effective ones. Forty-eight invited participants attended a national conference held at Villanova Law School to remedy this deficiency. Working groups addressed issues of education and training for the undergraduate level; for doctoral level programs in law and social science; for forensic clinical training; for joint-degree (JD/PhD-PsyD) programs; for those in practica, internships, and postdoctoral programs; and for continuing education. This article delineates levels and models of training in …

How Efficient Markets Undervalue Stocks: Capm And Ecmh Under Conditions Of Uncertainty And Disagreement, Lynn A. Stout

Cornell Law Faculty Publications

Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Is Chapter 11 Too Favorable To Debtors? Evidence From Abroad, Theodore Eisenberg, Stefan Sundgren

Cornell Law Faculty Publications

Chapter 11 is widely believed to be among the industrialized world's most debtor-oriented reorganization laws. Critics assert that Chapter 11 is too easily available and that it allows debtors too much control by, inter alia, not requiring appointment of a trustee. One criticism of Chapter 11, low returns to unsecured creditors, resonates with an important theme of this Symposium, the Bebchuk-Fried proposal to reduce secured creditor priority in insolvency proceedings. The Chapter 11 criticisms and the Bebchuk-Fried proposal raise the question whether less easy access to Chapter 11, reduced debtor control, diminished secured creditor priority, or other changes could reduce …

Irrational Expectations, Lynn A. Stout

Cornell Law Faculty Publications

Rational expectations models have become a staple of economic theory and the basis for a Nobel Prize. This article argues that rational expectations analysis suffers from potentially fatal flaws that seriously undermine its value in understanding many market phenomena. Using the example of financial markets, the article illustrates how the rational expectations approach has worked to obscure, rather than to illuminate, our understanding of speculation and speculative markets. This misguidance raises problems for law and policy.

What The Knicks Debacle Of '97 Can Teach Students About The Nature Of Rules, Robert A. Hillman

Cornell Law Faculty Publications

No abstract provided.

Technology, Transactions Costs, And Investor Welfare: Is A Motley Fool Born Every Minute?, Lynn A. Stout

Cornell Law Faculty Publications

Computer network technology promises to revolutionize the secondary securities market and particularly to reduce dramatically the marginal costs associated with trading corporate equities. Lowering transactions costs usually is presumed to increase trader welfare. Certain unique characteristics of the secondary securities market suggest, however, that reducing the marginal costs associated with trading stocks may have the perverse and counterintuitive effect of decreasing investor welfare. Policymakers should consider this possibility as they respond to the market's rapid evolution.

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 …

Limited-Domain Positivism As An Empirical Proposition, Stewart J. Schwab

Cornell Law Faculty Publications

In his typically clear statement of a provocative thesis, Fred Schauer, along with his co-author, Virginia Wise, ask us to think about positivism in a new way. Their claim has two parts. First, Schauer and Wise redefine legal positivism as an empirical claim about the limited domain of information that legal decisionmakers use to make decisions. Second, they begin testing the extent to which our legal system in fact reflects this limited domain. Ironically, Schauer and Wise believe that positivism, so conceived, is "increasingly false." Thus, their two-part approach is, first, to declare that legal positivism should be conceived of …

Former-Client Conflicts, Charles W. Wolfram

Cornell Law Faculty Publications

Integrating Normative And Descriptive Constitutional Theory: The Case Of Original Meaning, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Instrumental And Non-Instrumental Federalism, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Recipe For Trouble: Some Thoughts On Meaning, Translation And Normative Theory, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

The Predictability Of Punitive Damages, Theodore Eisenberg, John Goerdt, Brian Ostrom, David Rottman, Martin T. Wells

Cornell Law Faculty Publications

Using one year of jury trial outcomes from 45 of the nation's most populous counties, this article shows a strong and statistically significant correlation between compensatory and punitive damages. These findings are replicated in 25 years of punitive damages awards from Cook County, Illinois, and California. In addition, we find no evidence that punitive damages awards are more likely when individuals sue businesses than when individuals sue individuals. With respect to award frequency, juries rarely award punitive damages and appear to be especially reluctant to do so in the areas of law that have captured the most attention, products liability …

Property Rules As Remedies, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

The Cathedral At Twenty-Five: Citations And Impressions, James E. Krier, Stewart J. Schwab

Cornell Law Faculty Publications

It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability. Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article—which, thanks to its subtitle, we shall call The Cathedral—has had a remarkable influence on our own thinking, as we tried to show in a recent paper.

This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom …

Unequal Justice: The Federalization Of Criminal Law, Steven D. Clymer

Cornell Law Faculty Publications

From humble beginnings, federal substantive criminal law has grown to prohibit a wide range of conduct, including much that state criminal laws also proscribe. This expansion, commonly called federalization, has recently attracted substantial academic criticism. Some critics bemoan the federal government's intrusion into matters historically left to the states. Others denounce the burden on the federal judiciary of an increasing criminal caseload. However, there has been far less attention devoted to what may be the most troubling consequence of federalization: the dramatically disparate treatment of similarly situated offenders, depending on whether they are prosecuted in federal or state court. This …

The Consent Of The Governed: Against Simple Rules For A Complex World, Cynthia R. Farina

Cornell Law Faculty Publications

Professor Farina argues that recent proponents of enhanced presidential power overstate the ability of the President to legitimize the regulatory state. It accuses pro-presidentialists of premising their claims on a conception of the "will of the people" that is neither an accurate description of how citizens actually participate in modern government nor an authentic constitutional understanding of how citizens would consent to public policy decisions. The paper concludes by insisting that no single mode of democratic legitimization can "save" the regulatory enterprise; rather, administrative law must look to a plurality of institutions and practices that contribute to an ongoing process …

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

Cornell Law Faculty Publications

No abstract provided.

Simplifying The Choice Of Forum: A Reply, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

We have three things to think about here, as the real estate agents say—“location, location, location.” Accordingly, the two of us have engaged for several years in empirical studies aimed at gauging the effect of forum on case outcome. The results to date strongly suggest that forum really matters. An early piece of the puzzle fell into place in our study of venue. In that article, we examined the benefits and costs of the federal courts scheme of transfer of civil venue “in the interest of justice.” Ours was a pretty straightforward and simple cost-benefit analysis, but we supported it …

The Litigious Plaintiff Hypothesis: Case Selection And Resolution, Theodore Eisenberg, Henry S. Farber

Cornell Law Faculty Publications

The process through which cases are selected for litigation cannot be ignored because it yields a set of lawsuits and plaintiffs that is far from a random selection either of potential claims or of potential claimants. We present a theoretical framework for understanding the operation of this suit-selection process and its relationship to the underlying distribution of potential claims and claimants. The model has implications for the trial rate and the plaintiff win rate at trial. Our empirical analysis, using data on over 200,000 federal civil litigations, yields results that are strongly consistent with the theory.

Comparative Law And Comparative Literature: A Project In Progress, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

The "Chief Executive" And The Quiet Constitutional Revolution, Cynthia R. Farina

Cornell Law Faculty Publications

Paying For Suffering: The Problem Of Human Experimentation, Larry I. Palmer

Cornell Law Faculty Publications

No abstract provided.

Two- And Three-Dimensional Property Rights, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

How Law Is Formal And Why It Matters, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Arriving At Reasonable Alternative Design: The Reporters' Travelogue, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

Substantial commentary and controversy have been generated by the requirement in the new Restatement (Third) of Torts: Products Liability that plaintiffs in most (but not all) cases involving claims of defective product design show that a reasonable alternative design was available and that failure to adopt the alternative rendered the defendant's design not reasonably safe. Henderson and Twerski explain the origins of that requirement and show that it is not only the majority position but also comports with widely shared views regarding the proper objectives of our liability system. Although consumer expectations cannot serve as a workable, stand-alone test for …

Truth, Justice, And The American Constitution, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.