Law Commons^™

Deference To The Executive, Julian Arato

Book Chapters

This chapter examines the practice of deference to the executive, by national courts, in the context of interpreting treaties. When faced with an issue of treaty interpretation, to what extent must a national court engage in its own independent analysis, and to what extent ought the court give weight to interpretations advanced by the executive branch? And if deference to the executive is permissible as a matter of international doctrine, what considerations ought to guide the manner of deference, and the determination of how much deference is appropriate? I argue that international law does not formally preclude national judicial deference …

Federal Legislation Protecting Children And Providing For Their Well-Being, Frank E. Vandervort

Book Chapters

Over the past several decades a national model for child welfare practice has emerged. In Child Welfare Law and Practice, also known as "The Red Book", experienced NACC authors and child welfare advocates have captured and refined that model, offering a comprehensive guide for those who make child welfare advocacy their priority. Designed as a study guide for attorneys preparing to take the NACC Child Welfare Law Certification Exam, the Red Book serves as a day-to-day guide for child welfare advocates across the country, offering in-depth analysis and instruction on wide variety of topics in the field of child welfare …

Mental Health Evaluations In Child Welfare Settings, Joshua B. Kay

Book Chapters

This chapter will focus mainly on parenting capacity evaluations performed by psychologists, as these evaluations tend to be the most legally fraught type of assessment in a child protection proceeding. Often, assessments of parenting capacity inform important, difficult, and potentially contentious questions in the case, including whether to remove a child from a parent's custody or maintain a child in foster care; the frequency and conditions of parent-child visitation; recommended interventions to address parenting deficiencies or problems in the parent-child relationship; and whether and when termination of parental rights should be considered. Despite their central role in providing information that …

Using Online Databasing To Unlock The Full Value Of Environmental Impact Assessments, Jessica A. Wentz

Sabin Center for Climate Change Law

This paper considers how a multi-disciplinary research community can build upon these efforts to further enhance online access to EIA documents and make it easier for the public to use the information contained in those documents. Part I lays the groundwork for this inquiry: it describes the types of information contained in EIA documents and the extent to which existing online databases provide an effective means of locating and searching through these documents. Part II discusses the potential applications of the information contained in these documents, and how this might inform priorities related to online database development. Part III contemplates …

The Amplified Need For Supreme Court Guidance On Student Speech Rights In The Digital Age, William Calve

St. Mary's Law Journal

Abstract forthcoming.

Introduction To Juries And Mixed Tribunals Across The Globe: New Developments, Common Challenges And Future Directions, Nancy S. Marder, Valerie P. Hans

Cornell Law Faculty Publications

This introduction to the special issue of Oñati Socio-legal Series describes the goals of the conference on Juries and Mixed Tribunals across the Globe, and identifies themes that emerged as jury scholars from all over the world examined different forms of lay participation in legal decision-making. The introduction focuses on common challenges that different systems of lay participation face, including the selection of impartial fact finders and the presentation of complex cases to lay citizens. The introduction and special issue articles also highlight new developments and innovative practices to address these challenges, including some tools, like decision trees, that remain …

Civil Procedure's Five Big Ideas, Kevin M. Clermont

Cornell Law Faculty Publications

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 champion 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 importance.

"Special," Vestigial, Or Visionary? What Bank Regulation Tells Us About The Corporation - And Vice Versa, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Publications

A remarkable yet seldom noted set of parallels exists between modern U.S. bank regulation, on the one hand, and what used to be garden-variety American corporate law, on the other hand. For example, just as bank charters are matters not of right but of conditional privilege even today, so were all corporate charters not long ago. Just as chartered banks are authorized to engage only in limited, enumerated activities even to- day, so were all corporations restricted not long ago. And just as banks are subject to strict capital regulation even today, so were all corporations not long ago.

In …

Five Easy Pieces: Recurrent Themes In American Property Law, Gregory S. Alexander

Cornell Law Faculty Publications

No abstract provided.

Copyright For Literate Robots, James Grimmelmann

Cornell Law Faculty Publications

Almost by accident, copyright has concluded that copyright law is for humans only: reading performed by computers doesn't count as infringement. Conceptually, this makes sense: copyright's ideal of romantic readership involves humans writing for other humans. But in an age when more and more manipulation of copyrighted works is carried out by automated processes, this split between human reading (infringement) and robotic reading (exempt) has odd consequences and creates its own tendencies toward a copyright system in which humans occupy a surprisingly peripheral place. This essay describes the shifts in fair use law that brought us here and reflects on …

There's No Such Thing As A Computer-Authored Work - And It's A Good Thing, Too, James Grimmelmann

Cornell Law Faculty Publications

Treating computers as authors for copyright purposes is a non-solution to a non-problem. It is a non-solution because unless and until computer programs can qualify as persons in life and law, it does no practical good to call them "authors" when someone else will end up owning the copyright anyway. And it responds to a non-problem because there is nothing actually distinctive about computer-generated works.

There are five plausible ways in which computer-generated works might be considered meaningfully different from human-generated works: (1) they are embedded in digital copies, (2) people create them using computers rather than by hand, (3) …

The Challenge Of Legitimacy In Sovereign Debt Restructuring, Odette Lienau

Cornell Law Faculty Publications

Since the emergence of the post-World War II international economic system, policymakers have lamented the absence of a global sovereign debt restructuring mechanism. This disappointment has only intensified in recent years, as the failure to provide prompt, comprehensive, and lasting debt relief becomes even more apparent. As a result, scholars and key international actors have argued for the development of a more coherent global approach to debt workouts. But to date this discussion lacks a sustained focus on questions of legitimacy—a fact that is exceptionally puzzling in light of the voluminous scholarship on the legitimacy deficits of international economic institutions …

Incidental Burdens And The Nature Of Judicial Review, Michael C. Dorf

Cornell Law Faculty Publications

Activists and scholars contesting the meaning of the Second Amendment argue over a startling number of its twenty-seven words: "regulated," "Militia," "State," "people," "keep," "bear," and "Arms." Heller and McDonald sought to resolve most of these debates, but before Professors Joseph Blocher and Darrell Miller, no one noticed the potential for contestation over the Second Amendment's final word: "infringed." When does the application of a gun-neutral law infringe the right? In that deceptively simple question lurk important future debates over the Second Amendment, the Constitution, and law itself.

Legal Interpreter For The Jury: The Role Of The Clerk Of The Court In Spain, Mar Jimeno-Bulnes, Valerie P. Hans

Cornell Law Faculty Publications

The Clerk of the Court (secretario judicial) in Spanish provincial courts is an important legal actor in the proceedings of the modern Spanish jury, introduced in 1995. In contrast to the general verdicts of traditional common-law juries, Spanish juries must answer an often lengthy list of specific questions, and must provide the reasoning supporting these responses. Early on, many Spanish juries found the task of providing legally acceptable responses and reasons challenging. Because the law permits the clerk to enter the deliberation room to assist the jury in its writing of the verdict, the clerk has come to act as …

Forty Years Of Death: The Past, Present, And Future Of The Death Penalty In South Carolina (Still Arbitrary After All These Years), John H. Blume, Lindsey S. Vann

Cornell Law Faculty Publications

Forty years ago, the Supreme Court of the United States deemed constitutional new death penalty laws intended to minimize the arbitrariness which led the Court to invalidate all capital sentencing statutes four years earlier in Furman v. Georgia. Over the last four decades the Court has — time and again — attempted to regulate the “machinery of death.” Looking back over the Court’s work, many observers, including two current Supreme Court justices, have questioned whether the modern death penalty has lived up to expectations set by the Court in the 1970s or if, despite 40 years of labor, the American …

The Importance Of 'The Gap', Emily Sherwin

Cornell Law Faculty Publications

One of the central dilemmas of law is what Larry Alexander has called "the gap:" general, determinate rules have significant benefits from the forward-looking perspective of a lawmaker, but generate outcomes that appear wrong from the perspective of individual actors. In this 25-year retrospective of Alexander's initial article on the gap, I examine a possible way out of the dilemma of the gap, and conclude that it does not work.

Territoriality, Technology, And National Security, Zachary D. Clopton

Cornell Law Faculty Publications

Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define “territoriality” in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data …

Unequal Terms: Gender, Power, And The Recreation Of Hierarchy, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This paper explores the relationship between feminist theory and rising economic inequality. It shows how greater inequality reflects the valorization of the stereotypically male qualities of competition and hierarchy, producing a greater concentration of wealth among a small number of men at the top, shortchanging men more than women through the rest of the economy, and altering the way that men and women match up to each other in the creation of families. By creating a framework for further research on the relationship between the norms of the top and the disadvantages of everyone else in more unequal societies, the …

Emerging Policy And Practice Issues (2016), Steven L. Schooner, Neal J. Couture

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2015), attempts to identify the key trends and issues in U.S. federal procurement. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement, grant, and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. The paper discusses, in addition to the macro-level data, initiatives from OFPP and DoD, including the Better Buying Power 3.0's less-than-obvious focus on innovation, the need for investment in research and development, information technology and category management, acquisition performance measurement (or …

The Inevitable Legal Pluralism Within Universal Harmonization Regimes: The Case Of The Cisg, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Faced with a world of multiple overlapping normative communities and jurisdictions, law often seeks universal rules and harmonization regimes. Such rules and regimes offer to tame pluralism through the imposition of common codes of conduct. The 1980 Convention on Contracts for the International Sale of Goods (CISG) is a useful example of this phenomenon. Arising from harmonization efforts dating back at least to the 1920s, the CISG purports to solve the problem of jurisdictional overlap and inconsistency in the application of domestic law to cross-border commercial transactions. To its back-ers, the CISG addresses intractable problems of legal uncertainty and forum …

Reinvigorating Innovation: Lessons Learned From The Wright Brothers, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

The Department of Defense (DOD) increasingly recognizes that it must do more to spur innovation to maintain its technological superiority. This article suggests that DOD’s leadership make time for David McCullough’s recent biography, The Wright Brothers, as an aviation anecdote chock full of fundamental lessons that DOD must embrace to succeed.

Among other things, this article encourages DoD to consider - in light of the Wright Brothers' experiences and successes - experimenting with prizes and contests; looking outside the inner circle (including conventional contractors and sources of R&D) for new ideas; appreciating that bigger isn’t always better; recognizing that prototyping …

Spoe + Tlac = More Bailouts For Wall Street, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

A primary goal of the Dodd-Frank Act is to end “too big to fail” (TBTF) bailouts for systemically important financial institutions (SIFIs) and their creditors. Title II of Dodd-Frank establishes the Orderly Liquidation Authority (OLA), which empowers the Secretary of the Treasury to appoint the Federal Deposit Insurance Corporation (FDIC) as receiver for failed SIFIs. Title II requires the FDIC to liquidate failed SIFIs and to impose any resulting losses on their shareholders and creditors. Title II establishes a liquidation-only mandate because Congress did not want a failed megabank to emerge from an OLA receivership as a “rehabilitated” SIFI.

The …

Regulatory Leveraging: Problem Or Solution?, William E. Kovacic, David A. Hyman

GW Law Faculty Publications & Other Works

Worldwide, there are approximately 130 jurisdictions with competition laws. The governmental entities charged with enforcing these laws are typically called “competition agencies,” but many of these entities do things other than competition law. Of the 36 agencies listed in the Global Competition Review’s 2015 annual review, half have responsibilities beyond their competition portfolio. Assume a competition agency that has significant regulatory power, such as the right to review certain mergers before they are consummated. Pursuant to this authority, the agency determines how quickly mergers are cleared, or whether they can proceed at all. This regulatory power is the functional equivalent …

Stranded Costs And Grid Decarbonization, Emily Hammond, Jim Rossi

GW Law Faculty Publications & Other Works

Over the past half century, energy law has endured many stranded cost experiments, each helping firms and customers adjust to a new normal. However, these past experiments have contributed to a myopic regulatory approach to past stranded cost recovery by: (1) endorsing a preference for addressing all stranded costs only after energy resource investment decisions have been made; and (2) fixating on the firm’s financial costs and protection of investors, rather than on the broader impacts of each on the energy system.

The current transition to decarbonization is already giving rise to stranded cost claims related to existing energy assets …

Infrequently Asked Questions, Edward T. Swaine

GW Law Faculty Publications & Other Works

If appellate advocates could hear from courts about topics that might be raised during oral argument—as opposed to relying solely on their ability to anticipate the issues—might their answers be better? That seems likely, but it is unlikely that research could confirm that, as judicial practice overwhelmingly favors impromptu questioning. Spontaneity may be harmless if the question was predictable, or unavoidable if a judge just thought of the question. But sometimes advocates have to answer challenging questions concerning the law, facts, or implications of a position—questions that help decide the case, either due to the quality of the answer or …

Pension De-Risking, Brendan Maher

Faculty Articles and Papers

The United States is facing a retirement crisis, in significant part because defined benefit pension plans have been replaced by defined contribution retirement plans that, whatever their theoretical merit, have left significant numbers of workers unprepared for retirement. A troubling example of the continuing movement away from defined benefit plans is a new phenomenon euphemistically called “pension de-risking.” Recent years have been marked by high-profile companies engaging in various actions designed to reduce the company’s exposure to pension funding risk (hence the term “pension de-risking”). Some de-risking strategies convert a federally-guaranteed pension into a more risky private annuity. Other approaches …

Birthright Citizenship On Trial: Elk V. Wilkins And United States V. Wong Kim Ark, Bethany Berger

Faculty Articles and Papers

In the summer of 2015, the majority of Republican candidates for president announced their opposition to birthright citizenship. The constitutional dimensions of that right revolve around two cases decided at the end of the nineteenth century, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898). The first held that an American Indian man born in the United States was not a citizen under the Fourteenth Amendment; the second, that a Chinese American man born in the United States was indeed a citizen under the amendment. This Article juxtaposes the history of these decisions. By showing the distinctive …

The Uneasy Case For Food Safety Liability Insurance, John Aloysius Cogan, Jr.

Faculty Articles and Papers

No abstract provided.

Regulators At The Margins: The Impact Of Malpractice Insurers On Solo And Small Firm Lawyers, Leslie Levin

Faculty Articles and Papers

Liability insurers often informally regulate the behavior of their insureds through the underwriting process, premium pricing, contract design, and risk management practices. This Article explores whether lawyer professional liability ("LPL") insurers effectively regulate the behavior of solo and small firm lawyers in ways that encourage responsible conduct. The Article draws on interviews of insurance industry executives, risk management counsel, and insured lawyers, as well as insurer documents and surveys of lawyers, to explore the impact of LPL insurers on the work lives of solo and small firm lawyers. The research reveals that LPL insurers appear to regulate the behavior of …

In The Shadows Of Sunlight: The Effects Of Transparency On State Political Campaigns, Douglas M. Spencer, Abby K. Wood

Faculty Articles and Papers

In recent years, the courts have invalidated a variety of campaign finance laws while simultaneously upholding disclosure requirements. Courts view disclosure as a less-restrictive means to root out corruption while critics claim that disclosure chills speech and deters political participation. Using individual-level contribution data from state elections between 2000 and 2008, we find that the speech-chilling effects of disclosure are negligible. On average, less than one donor per candidate is likely to stop contributing when the public visibility of campaign contributions increases. Moreover, we do not observe heterogeneous effects for small donors or ideological outliers despite an assumption in First …