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Full-Text Articles in Law
Rulemaking Versus Adjudication: A Psychological Perspective, Jeffrey J. Rachlinski
Rulemaking Versus Adjudication: A Psychological Perspective, Jeffrey J. Rachlinski
Cornell Law Faculty Publications
Legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (the adjudicative process) or by declaring general principles through a centralized authority that are to be applied in individual cases (through the rulemaking process). Administrative agencies have long had the unfettered authority to choose between the two methods. Although each method could identify the same solution to the legal issues that come before them, in practice, the two systems commonly settle upon different resolutions. Each system presents the underlying legal issue from a different cognitive perspective, highlighting and hiding different …
Professionalism As Interpretation, W. Bradley Wendel
Professionalism As Interpretation, W. Bradley Wendel
Cornell Law Faculty Publications
In this Article, I defend the interpretive attitude of professionalism. Professionalism is a stance toward the law which accepts that a lawyer is not merely an agent of her client. Rather, in carrying out her client's lawful instructions, a lawyer has an obligation to apply the law to her client's situation with due regard to the meaning of legal norms, not merely their formal expression. Professionalism requires a lawyer acting in a representative capacity to respect the achievement represented by law, namely the final settlement of contested issues (both factual and normative) with a view toward enabling coordinated action in …
Misunderstanding Ability, Misallocating Responsibility, Jeffrey J. Rachlinski
Misunderstanding Ability, Misallocating Responsibility, Jeffrey J. Rachlinski
Cornell Law Faculty Publications
In the Anglo-American legal tradition, people are responsible for damage caused by their failure to conform their conduct with that of the "reasonable person." With few exceptions, so long as one's conduct conforms to that of the reasonable person, then even if the conduct harms others, it does not create liability. Courts understand that the "reasonable person" is an idealized legal fiction but believe the construct to be a useful way to identify culpable conduct. For the reasonable-person test to be useful, courts must identify the characteristics of this reasonable person. As to cognitive and perceptual abilities, courts endow this …
Education And Interrogation: Comparing Brown And Miranda, John H. Blume, Sheri Lynn Johnson, Ross Feldmann
Education And Interrogation: Comparing Brown And Miranda, John H. Blume, Sheri Lynn Johnson, Ross Feldmann
Cornell Law Faculty Publications
Although the Warren Court had its share of grand decisions, perhaps it should be known instead for its grand goals--particularly the goals of ending America's shameful history of segregation and of providing a broad array of constitutional rights to persons accused of committing crimes. Brown v. Board of Education and Miranda v. Arizona, the two most well-known decisions of the Warren Court (and possibly the two most well-known decisions in the history of the Supreme Court), best capture the Court's labor in the rocky fields of our nation's legal, political, and cultural life. In this Article, we explore certain parallels …