Law Commons^™

The Choice-Of-Law Revolution In The United States: Notes On Rereading Von Mehren, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.

Jurors' Evaluations Of Expert Testimony: Judging The Messenger And The Message, Sanja Kutnjak Ivkovic, Valerie P. Hans

Cornell Law Faculty Publications

Jurors are laypersons with no specific expert knowledge, yet they are routinely placed in situations in which they need to critically evaluate complex expert testimony. This paper examines jurors' reactions to experts who testify in civil trials and the factors jurors identify as important to expert credibility. Based on in-depth qualitative analysis of interviews with 55 jurors in 7 civil trials, we develop a comprehensive model of the key factors jurors incorporate into the process of evaluating expert witnesses and their testimony. Contrary to the frequent criticism that jurors primarily evaluate expert evidence in terms of its subjective characteristics, the …

Lay Participation In Legal Decision Making: Introduction To Law & Policy Special Issue, Valerie P. Hans

Cornell Law Faculty Publications

United States scholarship on lay participation revolves around one predominant form of lay participation, the jury (Hans & Vidmar forthcoming 2004). However, in the legal systems of many countries, laypeople participate as decision makers in other ways. Laypersons serve as judges (Provine 1986), magistrates (Diamond 1993), and private prosecutors (Perez Gil 2003). Lay and law-trained judges may also decide cases together in mixed tribunals (Kutnjak Ivkovi6 2003; Machura 2003; Vidmar 2002). Although diverse in structure, these methods share with the jury a set of animating ideas about lay involvement in legal decision making.

Many of these ideas appear to be …

Mercy By The Numbers: An Empirical Analysis Of Clemency And Its Structure, Michael Heise

Cornell Law Faculty Publications

Clemency is an extrajudicial measure intended both to enhance fairness in the administration of justice, and allow for the correction of mistakes. Perhaps nowhere are these goals more important than in the death penalty context. The recent increased use of the death penalty and concurrent decline in the number of defendants removed from death row through clemency call for a better and deeper understanding of clemency authority and its application. Questions about whether clemency decisions are consistently and fairly distributed are particularly apt. This study uses 27 years of death penalty and clemency data to explore the influence of defendant …

The Uncertain Psychological Case For Paternalism, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

The Scottsboro Trials: A Legal Lynching (Part Ii), Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

Reason And Authority In Legal Ethics, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Environmental Tribalism, Douglas A. Kysar, James Salzman

Cornell Law Faculty Publications

Recent writings by Dan Farber and J.B. Ruhl have put forward a strong case for "eco-pragmatic" and "radical middle" approaches to environmental policymaking. Rather than debate the merits of such an approach, in this Article we examine whether eco-pragmatic policy development is likely in practice and where it might occur, given the tribal nature of public environmental advocacy. We use the remarkably polarized reaction to Bjorn Lomborg's book, "The Skeptical Environmentalist," as a vehicle to explore the seemingly fundamental divide that exists between warring parties within the environmental law and policy communities. By offering a more complete understanding of why …

The Government As Litigant: Further Tests Of The Case Selection Model, Theodore Eisenberg, Henry Farber

Cornell Law Faculty Publications

We develop a model of the plaintiff's decision to file a lawsuit that has implications for how differences between the federal government and private litigants translate into differences in trial rates and plaintiff win rates at trial. Our case selection model generates a set of predictions for relative trial rates and plaintiff win rates, depending on the type of case and whether the government is defendant or plaintiff. To test the model, we use data on about 474,000 cases filed in federal district court between 1979 and 1994 in the areas of personal injury and job discrimination, in which the …

Regulation Of Lawyers Without The Code, The Rules, Or The Restatement: Or, What Do Honor And Shame Have To Do With Civil Discovery Practice?, W. Bradley Wendel

Cornell Law Faculty Publications

One of the most striking things to notice when "looking back" on the regulation of the legal profession is the relative absence of enforceable legal sanctions for unethical behavior by lawyers. Before the promulgation in 1970 of the ABA's Model Code of Professional Responsibility, regulation of the legal profession was largely a matter of a fraternal body taking care of its own, and occasionally expelling miscreants. Now, of course, there is a complex body of law, enforced by courts and regulatory authorities with overlapping jurisdiction, that governs a substantial amount of the day-to-day activities of lawyers.

The hypothesis I explore …

The Domain Of Reflexive Law, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Property As A Fundamental Constitutional Right? The German Example, Gregory S. Alexander

Cornell Law Faculty Publications

No abstract provided.

Reasonable Accommodation Of Workplace Disabilities, Stewart J. Schwab, Steven L. Willborn

Cornell Law Faculty Publications

Oil And Water: Why Retribution And Repentance Do Not Mix, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

Theories Of Domestic Violence In The African Context, Cynthia Grant Bowman

Cornell Law Faculty Publications

No abstract provided.

The Moral Emotions Of The Criminal Law, Stephen P. Garvey

Cornell Law Faculty Publications

Imagine you have committed a crime. You might experience any number of emotional responses to what you've done, ranging from self-satisfaction to self-disgust. But however you do feel, how should you feel? The question seems especially appropriate for a conference honoring Professor Herbert Morris and celebrating his work, for no one has shed light more on the moral emotions of the criminal law. The line of thought that follows owes Professor Morris a large and obvious debt.

So, once again, how should you feel when you have committed a criminal wrong? "Guilty" comes immediately to mind. But guilt is not …

Restorative Justice, Punishment, And Atonement, Stephen P. Garvey

Cornell Law Faculty Publications

Restorative justice is a way of responding to crime, and according to its proponents, it's a much better way of responding than the way they believe we now respond: through punishment imposed in the name of retributive justice. According to its proponents, restorative justice is better than retributive justice because it restores, or at least tries to restore, the victim; retribution's only aim is to punish the offender. According to restorativists, retribution ignores the victim.

I argue here for two claims. First, I argue in Part II that restorative justice cannot have it both ways: it cannot achieve the restoration …

Victim Characteristics And Victim Impact Evidence In South Carolina Capital Cases, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

Cornell Law Faculty Publications

The use of victim impact evidence (VIE) has been a standard feature of capital trials since 1991, when the Supreme Court lifted the previously existing constitutional bar to such evidence. Legal scholars have almost universally condemned the use of VIE, criticizing it on a variety of grounds. Yet little empirical analysis exists that examines how VIE influences the course and outcome of capital trials. We analyze the influence of VIE based on interviews with over two-hundred jurors who sat on capital trials in South Carolina between 1985 and 2001.

First, we describe the VIE introduced at sentencing trials, using a …

How Employment-Discrimination Plaintiffs Fare In The Federal Courts Of Appeals, Kevin M. Clermont, Theodore Eisenberg, Stewart J. Schwab

Cornell Law Faculty Publications

Employment-discrimination plaintiffs swim against the tide. Compared to the typical plaintiff, they win a lower proportion of cases during pretrial and after trial. Then, many of their successful cases are appealed. On appeal, they have a harder time in upholding their successes, as well in reversing adverse outcome.

This tough story does not describe some tiny corner of the litigation world. Employment-discrimination cases constitute an increasing fraction of the federal civil docket, now reigning as the largest single category of cases at nearly 10 percent.

In this article, we use official government data to describe the appellate phase of this …

Victim Characteristics And Victim Impact Evidence In South Carolina Capital Cases, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

Cornell Law Faculty Publications

This article is available at:

http://scholarship.law.cornell.edu/facpub/290/.

The use of victim impact evidence (VIE) has been a standard feature of capital trials since 1991, when the Supreme Court lifted the previously existing constitutional bar to such evidence. Legal scholars have almost universally condemned the use of VIE, criticizing it on a variety of grounds.

Yet little empirical analysis exists that examines how VIE influences the course and outcome of capital trials. Moreover, the handful of empirical analyses that do exist rely on data gathered in simulation studies. Although valuable contributions have emerged from these experimental studies, such studies have often-rehearsed …

Nullification At Work? A Glimpse From The National Center For State Courts Study Of Hung Juries, Paula Hannaford-Agor, Valerie P. Hans

Cornell Law Faculty Publications

In recent years, the criminal justice community has become increasingly concerned about the possibility that jury nullification is the underlying motivation for increasing numbers of acquittals and mistrials due to jury deadlock in felony jury trials. In this Article, the authors discuss the inherent difficulty in defining jury nullification and identifying its occurrence in actual trials. They review the evolution in public and legal opinion about the legitimacy of jury nullification and contemporary judicial responses to perceived instances of jury nullification. Finally, the authors examine the possible presence of jury nullification through empirical analysis of data collected from 372 felony …

Marriage Law: Obsolete Or Cutting Edge?, Jeffrey S. Lehman

Cornell Law Faculty Publications

No abstract provided.

Lawyer Ethics On The Lunar Landscape Of Asbestos Litigation, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

On The Proper Motives Of Corporate Directors (Or, Why You Don't Want To Invite Homo Economicus To Join Your Board), Lynn A. Stout

Cornell Law Faculty Publications

One of the most important questions in corporate governance is how directors of public corporations can be motivated to serve the interests of the firm. Directors frequently hold only small stakes in the companies they manage. Moreover, a variety of legal rules and contractual arrangements insulate them from liability for business failures. Why then should we expect them to do a good job?

Conventional corporate scholarship has great difficulty wrestling with this question, in large part because conventional scholarship usually adopts the economist's assumption that directors are rational actors motivated purely by self-interest. This homo economicus model of behavior may …

The Democratization Process And Structural Adjustment In Africa, Muna Ndulo

Cornell Law Faculty Publications

No abstract provided.

Teaching Civil Procedure Through Its Top Ten Cases, Plus Or Minus Two, Kevin M. Clermont

Cornell Law Faculty Publications

The thesis is that Civil Procedure teachers should give more attention to the subject's landmark cases. Law teachers' common sense and cognitive scientists' schema theory lend support to that thesis. The pedagogic implications of that thesis call for an enriched case method, the essence of which is teaching a slightly smaller number of cases and pausing on the key ones, thoroughly examining them in a rich context. The optimal sources of that context are written case studies, assigned as intermittent supplementation.

Ten Years Of Payne: Victim Impact Evidence In Capital Cases, John H. Blume

Cornell Law Faculty Publications

A little over a decade ago, in Payne v. Tennessee, the U.S. Supreme Court cleared the way for capital sentencing juries to consider “victim impact evidence” (VIE). Reversing its prior decisions in Booth v. Maryland and South Carolina v. Gathers, a six to three majority of the Court held that “if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.” Part I of this Article will discuss the Court’s prior decisions in Booth and Gathers, and Parts II and III will …

Whiplash: Who's To Blame?, Valerie P. Hans, Juliet Dee

Cornell Law Faculty Publications

Tom is sitting in his car at an intersection, waiting for the red light to change. Without warning, the car behind him, driven by a distracted mother named Elaine, slams into the rear of Tom's car. After the accident, Tom experiences severe neck pain, which interferes with his work and family life. Who's to blame?

If Tom suffered physical injury as a result, then under current legal principles she is responsible for compensating him for his injury. However, research on jury decision making in civil cases suggests that a constellation of psychological, legal and political factors operate together to focus …

Avoid Bald Men And People With Green Socks? Other Ways To Improve The Voir Dire Process In Jury Selection, Valerie P. Hans, Alayna Jehle

Cornell Law Faculty Publications

During jury selection, many courts adopt a minimal approach to voir dire questions, asking a small number of close-ended questions to groups of prospective jurors and requiring prospective jurors to volunteer their biases. This Article describes research evidence showing that limited voir dire questioning is often ineffective in detecting juror bias. To improve the effectiveness of voir dire, the authors make four recommendations: (1) increase the use of juror questionnaires; (2) incorporate some open-ended questions; (3) expand the types of questions that are asked; and (4) allow attorneys to participate in voir dire.

Speeding In Reverse: An Anecdotal View Of Why Victim Impact Testimony Should Not Be Driving Capital Prosecutions, Sheri Johnson

Cornell Law Faculty Publications

No abstract provided.