Law and Society Commons^™

Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie

Cornell Law Faculty Publications

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

Human Persons, Human Rights, And The Distributive Structure Of Global Justice, Robert C. Hockett

Cornell Law Faculty Publications

It is common for economically oriented transnational legal theorists to think and communicate mainly in maximizing terms. It is less common for them to notice that each time we speak explicitly of maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. Moreover, we effectively define ourselves and our fellow humans by reference to that which we equalize. For it is in virtue of the latter that our global welfare formulations treat us as "counting" for purposes of globally aggregating and maximizing.

To analyze maximization language on the one hand, and equalization and identification language …

Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Cornell Law Faculty Publications

We conducted a study of contractual practices by well-known firms marketing consumer products, comparing the firms' consumer contracts with contracts the same firms negotiated with business peers. The frequency of arbitration clauses in consumer contracts has been studied before, as has the frequency of arbitration clauses in non-consumer contracts. Our study is the first to compare the use of arbitration clauses within firms, in different contractual contexts.

The results are striking: in our sample, mandatory arbitration clauses appeared in more than three-quarters of consumer contracts and less than one tenth of non-consumer contracts (excluding employment contracts) negotiated by the same …

Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Cornell Law Faculty Publications

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear …

Statins And Adverse Cardiovascular Events In Moderate-Risk Females: A Statistical And Legal Analysis With Implications For Fda Preemption Claims, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

This article presents: (1) meta-analyses of studies of cardioprotection of women and men by statins, including Lipitor (atorvastatin), and (2) a legal analysis of advertising promoting Lipitor as preventing heart attacks. The meta-analyses of primary prevention clinical trials show statistically significant benefits for men but not for women, and a statistically significant difference between men and women. The analyses do not support (1) statin use to reduce heart attacks in women based on extrapolation from men, or (2) approving or advertising statins as reducing heart attacks without qualification in a population that includes many women. The legal analysis raises the …

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

How The International Financial Institutions Can Help To Win Globalization Of More Stakeholders - By Making More Stockholders, Robert C. Hockett

Cornell Law Faculty Publications

No abstract provided.

The Impossibility Of A Prescriptive Paretian, Robert C. Hockett

Cornell Law Faculty Publications

Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely.

Religious Exemptions And The Common Good: A Reply To Professor Carmella, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Moral Judgment And Professional Legitimation, W. Bradley Wendel

Cornell Law Faculty Publications

In this essay I would like to consider the nature of the role of lawyers from the point of view of both jurisprudence and the sociology of professions. From this perspective it is apparent that the judgment characteristic of lawyers' expertise is not primarily the exercise of ethical discretion. Rather, it is the application of legal norms, which may incorporate moral principles by reference, but which are analytically distinct from morality. The task of legal education, and specifically of legal ethics education, might include training lawyers to be better at making moral judgments. In fact, there has been a fairly …

On The Very Idea Of Transitional Justice, Jens David Ohlin

Cornell Law Faculty Publications

The phrase "transitional justice" has had an amazingly successful career at an early age. Popularized as an academic concept in the early 1990s in the aftermath of apartheid's collapse in South Africa, the phrase quickly gained traction in a variety of global contexts, including Rwanda, Yugoslavia, Cambodia, and Sierra Leone. A sizeable literature has been generated around it, so much so that one might even call it a sub-discipline with inter-disciplinary qualities. Nonetheless, the concept remains an enigma. It defines the contours of an entire field of intellectual inquiry, yet at the same time it hides more than it illuminates. …

Neutral Citation, Court Web Sites, And Access To Authoritative Case Law, Peter W. Martin

Cornell Law Faculty Publications

In 1994, the Wisconsin Bar and the Wisconsin Judicial Council together urged the state’s supreme court to take two dramatic steps with the combined aim of improving access to state case law: adopt a new system of neutral format citation and establish a digital archive of decisions directly available to all publishers and the public. The recommendations set off a firestorm, and the court deferred decision on the package. In the dozen or so years since those events, the background conditions have shifted dramatically. Neutral format citation has been endorsed by AALL and the ABA and formally adopted in a …

Evidence Of The Need For Aggregate Litigation, Theodore Eisenberg

Cornell Law Faculty Publications

In the experimental game designed by GÜTH et al. [2007], player 1 has promised to render a service to player 2. Player 1 either invests proper effort or shirks and performance may succeed or fail depending on random fluctuation. When player 1 fails to invest proper effort, and performance occurs or not through luck, player 2 must decide whether to punish player 1’s nonperformance. When the transaction fails, punishment may be sought through suing. When the transaction fails, player 2 may seek revenge or punishment though doing so incurs costs to player 2. The game’s design resembles civil enforcement rather …

Transparency And Textuality: Wilkie Collins' Law Books, Bernadette A. Meyler

Cornell Law Faculty Publications

This article takes as its starting point the priority that Anglo-American legal thought has, in recent centuries, placed upon transparency, a priority that has relied, in large part, on the notion that the law should increasingly be recorded and publicly accessible. Through his representation of trial narratives - an extremely popular quasi-literary form during the nineteenth century - as well as the work of William Blackstone in his supposedly comprehensive Commentaries on the Laws of England, nineteenth-century novelist Wilkie Collins calls into question the idea that simply disseminating textual versions of the law or the records of legal processes will …

Social Science And Legal Policy: The Case Of Heterosexual Cohabitation, Cynthia Grant Bowman

Cornell Law Faculty Publications

The rate at which people live together in unmarried unions has increased enormously in recent decades, making this one of the remarkable social changes of our era. The response to this change in the law review literature has been inadequate. Recent articles about cohabitation have argued simply that the institution of marriage is better than cohabitation for both the couple and their children, and the law should therefore be structured so as to discourage this conduct, because to give legal protections to cohabitants will harm the institution of marriage. This article explores the findings of social scientists about cohabitation and …

Economic Emergency And The Rule Of Law, Bernadette Meyler

Cornell Law Faculty Publications

Academic work extolling the merits of the "rule of law" both domestically and internationally abounds today, yet the meanings of the phrase itself seem to proliferate. Two of the most prominent contexts in which rule of law rhetoric appears are those of economic development and states of emergency. In the area of private law, dissemination of the rule of law across the globe and, in particular, among emerging market countries is often deemed a prerequisite for enhancing economic development, partly because it ensures that foreign investments will not be summarily expropriated and that contractual rights will not be frustrated by …

Legal Change, Gerald Torres

Cornell Law Faculty Publications

The "demos" in demosprudence is meant to refer to those people who are collectively mobilized to make change. Demosprudence is not "the community" at the micro level. Nor is it the "'polity" writ large whether it acts through representative decision-making or voting in referenda and initiatives. It is not the theory or practice of a riot or a lynch mob. Nor is it the study of elections, whether for representatives or referenda. It is the theory and philosophy of legal meaning making through popular mobilization that engages a "thick" form of participation by people who are pushing for change by …

Why (Only) Esops?, Robert C. Hockett

Cornell Law Faculty Publications

No abstract provided.

Use It Or Pretenders Will Abuse It: The Importance Of Archival Legal Information, Theodore Eisenberg

Cornell Law Faculty Publications

Archival information about the legal system should inform policymaking. Despite claims of soaring civil damages awards, modem historical data show no to little growth in tort awards and no real growth in punitive damages awards. The data also show a dramatic forty-year decline in trial rates from more than ten percent of case dispositions to less than two percent. The decline needs to be explained in part by using archival data. Contrary to perceptions underlying the Class Action Fairness Act of 2005, little systematic evidence exists that state and federal courts process class actions significantly different. These results contradict the …

Max Weber, Talcott Parsons And The Sociology Of Legal Reform: A Reassessment With Implications For Law And Development, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

What's Wrong With Being Creative And Aggressive?, W. Bradley Wendel

Cornell Law Faculty Publications

When I tell people that I am a law professor specializing in legal ethics, they usually have one of two reactions: “Legal ethics—that’s an oxymoron!” or “I bet you always have a lot to do.” The second reaction is the more interesting of the two, because it rightly implies that legal ethics is a fascinating field, in part because lawyers are always thinking of new ways to get into trouble. Many run-of-the-mill lawyer disciplinary cases involve simple wrongdoing, such as stealing from client funds, which does not present conceptually interesting issues. Contemporary high-profile legal ethics scandals, by contrast, are made …

Institutional Fixes Versus Fixed Institutions, Robert C. Hockett

Cornell Law Faculty Publications

A number of philosophers, policy thinkers and activists have despaired over the prospect that global institutions can bring progressive change to the international order. They advocate that those who would change things should place their hopes in global social movements rather than global institutions. This essay humbly suggests that we ought to do both. Global institutions require an active global civil society that includes social movements if they would not lose their senses of mission and purpose. Global social movements for their part require global institutions to serve as focal points for their efforts, which are otherwise threatened with diffusion …

Some Observations On The Role Of Social Change On The Courts, Gerald Torres

Cornell Law Faculty Publications

No abstract provided.

A New Agenda For The Cultural Study Of Law: Taking On The Technicalities, Annelise Riles

Cornell Law Faculty Publications

This article urges humanistic legal studies to take the technical dimensions of law as a central focus of inquiry. Using archival and ethnographic investigations into developments in American Conflict of Laws doctrines as an example, and building on insights in the anthropology of knowledge and in science and technology studies that focus on technical practices in scientific and engineering domains, it aims to show that the technologies of law - an ideology that law is a tool and an accompanying technical aesthetic of legal knowledge - are far more central and far more interesting dimensions of legal practice than humanists …

It's The Aggregation, Stupid! [Book Review], Josh Chafetz

Cornell Law Faculty Publications

This Comment reviews James Surowiecki's book, The Wisdom of Crowds (2004). It first situates Surowiecki's arguments with respect to traditional ideas of crowd stupidity, on the one hand, and Hayekian arguments about spontaneously ordering systems, on the other. Surowiecki notes that crowds can be both much smarter and much stupider than their component parts. The Comment examines Surowiecki's criteria for distinguishing smart crowds from stupid ones. It then applies those criteria to juries and theories of deliberative democracy, and makes several suggestions as to how we can structure deliberative institutions so as to make them wiser than their members.

The Fate Of Firms: Explaining Mergers And Bankruptcies, Clas Bergström, Theodore Eisenberg, Stefan Sundgren, Martin T. Wells

Cornell Law Faculty Publications

Using a uniquely complete data set of more than 50,000 observations of approximately 16,000 corporations, we test theories that seek to explain which firms become merger targets and which firms go bankrupt. We find that merger activity is much greater during prosperous periods than during recessions. In bad economic times, firms in industries with high bankruptcy rates are less likely to file for bankruptcy than they are in better years, supporting the market illiquidity arguments made by Shleifer and Vishny (1992). At the firm level, we find that, among poorly performing firms, the likelihood of merger increases with poorer performance, …

Brown V. Board Of Education, Footnote 11, And Multidisciplinarity, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Death Sentence Rates And County Demographics: An Empirical Study, Theodore Eisenberg

Cornell Law Faculty Publications

The number of murders in a state largely determines the size of a state's death row. The more murders, the larger the death row. This fundamental relation yields surprising results, including the newsworthy finding that Texas's death sentencing rate is not unusually high. Recent state-level research also underscores the importance of race in the demography of death row. Death penalty research has long emphasized race's role, and with good reason--a racial hierarchy exists in death sentence rates. Black defendants who murder white victims receive death sentences at the highest rate; white defendants who murder white victims receive death sentences at …

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 …

Why Do Empirical Legal Scholarship?, Theodore Eisenberg

Cornell Law Faculty Publications

People conduct legal scholarship for many different reasons. This Article focuses on the demand for and reaction to scholarship that helps inform litigants, policymakers, and society as a whole about how the legal system works. Law schools do little to train generations of lawyers in how to systematically assess the state of the legal system and the legal system's performance. Schools leave such assessments largely to self-interested advocates and to other disciplines. Self-interested advocates have less interest in objective assessment of the system than in pushing preferred policy agendas. Academic disciplines other than law have a distinct advantage in that …