New: Objects of Art; Objects of Property

By Gregory S. Alexander

Seemingly worlds apart, art and the law of property in fact share much in common. Some of this shared space is obvious, the result of their intersection through property law's protection and regulation of art. But another aspect of their commonality is considerably less obvious. Both rely, implicitly and in ways not always acknowledged, on assumptions about objects in the world-thing-ness. That is, both have relied, or traditionally have done so, on certain assumptions about the nature of objects-the objects of art and the objects of property-and the upshot of those assumptions is that those objects are characterized by thing-ness, i.e., physicality, tangibility, stability, durability. Further, these assumptions are not only parallel to each realm but intersect with each other in functional ways. Notably, property law's interaction with art depends upon art's assumption of its own thing-ness, for property law itself traditionally has depended upon certain assumptions regarding ...

New: Kompetenz-Kompetenz and Its Negative Effect — A Comparative View

By John J. Barceló

The paper deals with the “negative-effect”-of-Kompetenz-Kompetenz doctrine in some of the major arbitration venues, France, Germany, Switzerland, the U.S., England and Canada (Quebec). The negative effect doctrine refers to the circumstances under which a national court, before which a case is pending, will refrain (or not) from a full review of whether an alleged arbitration agreement (requiring arbitration of the parties’ dispute) exists as between the parties, is valid, and covers the dispute — in deference to allowing the arbitrators to decide those issues in the first instance. Although national jurisdictions universally accept the “positive” Kompetenz-Kompetenz doctrine — under which arbitrators are authorized to decide their own jurisdiction, although not with finality — they follow dramatically different approaches to the “negative-effect” issue. After canvassing and analyzing how the major jurisdictions just mentioned approach the negative-effect doctrine, the paper ...

REVISION: Mitigation Matters

By John H. Blume

Mitigation matters. It works. It literally saves lives every day, often in cases in which a death sentence seems a foregone conclusion. But mitigation matters — it works — only if the capital defense team is committed both to conducting a comprehensive investigation of the client’s life and to developing and integrating the results of the investigation into a compelling, credible narrative for life. This commitment to uncovering and telling the client’s true story must be complete and unwavering. When it is, life sentences follow. When it is not, undeserved death sentences are imposed.

New: How Should the Law Treat Couples Who Live Apart Together?

By Cynthia Grant Bowman

Committed couples who do not share a residence, commonly called ‘LATs’ (for Living Apart Together), have been little studied by family law scholars in the United States. After describing the literature on this phenomenon by British, European, Canadian, and Australian scholars, this article provides new data about LATs in the US. It presents the results of two new surveys, one of respondents in New York State and one US-wide study, along with information gleaned from qualitative interviews of LATs. These data show that LATs are as prevalent in the US as elsewhere and provide information about their lifestyle, their reasons for living apart, their economic relationships, and the family-like functions LATs undertake for each another. The article then discusses whether the US legal system should recognize LAT relationships and, if so, for what purposes, concluding that certain legal rights should be extended to LATs, limiting them in most instances to those designed to aid their ...

REVISION: Promoting Clinical Legal Education in India: A Case Study of the Citizen Participation Clinic

By Elizabeth Brundige

This Report is the product of a unique collaboration between the Good Governance and Citizen Participation Clinic at Jindal Global Law School and the Cornell International Human Rights Clinic at Cornell Law School. Students based in the Jindal Global Law School (Sonipat, India) and Cornell Law School (Ithaca, N.Y.) participated in a joint class using videoconferencing technology from January to May, 2012 and worked on preparing the Report. The Report points out that most law schools in Ind

REVISION: Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past

By Josh Chafetz

Recent years have seen intense conflicts over federal judicial appointments, culminating in Senate Republicans' 2016 refusal to consider the nomination of Merrick Garland to the Supreme Court, Senate Democrats' 2017 filibuster of Neil Gorsuch's nomination to the same seat, and Republicans' triggering of the "nuclear option" to confirm Gorsuch. At every stage in this process, political actors on both sides have accused one another of "unprecedented" behavior. This Essay, written for the 2017 Supreme Court issue of the Harvard Law Review, examines these disputes and their histories, with an eye toward understanding the ways in which discussions of (un)precedentedness work in constitutional politics. Part I examines recent conflicts in judicial appointments, beginning in the George W. Bush administration and running through the 2017 elimination of the filibuster for all nominees. It focuses on the discourse surrounding these reforms, noting that at every turn, accusations of ...

REVISION: Common Sense on Standards of Proof

By Kevin M. Clermont

The law speaks clearly on the standards of proof, but listeners often misunderstand its words. This article tries, with some common sense and a modicum of multivalent logic, to explain how the law expects its standards to be applied, and then to show how the law thereby avoids such complications as the conjunction paradox. First, in accordance with belief function theory, the factfinder should start at zero belief. Given imperfect evidence, the factfinder will end up retaining a fair amount of uncommitted belief. As evidence comes in, though, the factfinder will form a belief in the truth of the disputed fact but also form a disbelief, or a belief in the fact’s falsity. At the close of evidence, the standard of proof requires only comparing belief and disbelief. For example, the civil standard, rather than asking whether a fact more likely than not happened according to traditional probability theory, asks whether the factfinder believes in the fact’s happening more than the ...


By Zachary D. Clopton

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered — Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases — and we suspect that, sooner rather than later, one of these parties might give MDL a try. In this Essay, we argue that although the MDL statute would allow for consolidation ...

REVISION: The Conviction of Andrea Yates: A Narrative of Denial

By Sherry F. Colb

This paper discusses the case of Andrea Yates, the woman who confessed to drowning her five children to death and was subsequently convicted of murder, (though the conviction has since been overturned). In this piece, Colb contends that Andrea Yates was convicted because of the jurors’ emotional/psychological response to the possibility that postpartum psychosis could cause an otherwise decent person to commit such brutal acts. As a symptom of denial, Colb argues, the jury rejected the insanity defense and thereby reassured itself that only evil people could do what Yates did. If that were the case, then it would be fine to continue to ignore the issue of mental illness in general and its impact on postpartum women in particular.

REVISION: Affirmative Power to Strip State Courts of Jurisdiction

By Michael C. Dorf

The very substantial literature on the scope of congressional power to strip courts of jurisdiction contains a gap: it does not discuss the source of the affirmative power of Congress to strip state courts of their jurisdiction. Laws granting exclusive federal court jurisdiction over some category of cases are necessary and proper to the exercise of the power to ordain and establish lower federal courts, but what power does Congress exercise when it strips both state and federal courts of jurisdiction? The answer depends on the nature of the case. In stripping all courts of the power to hear federal statutory claims and challenges to federal statutes, Congress exercises whatever affirmative power authorizes the substantive statute. However, Congress lacks affirmative power to strip all courts of the power to hear constitutional challenges to state laws. That conclusion is important in its own right but also complements views — such as Henry Hart’s contention that the Supreme Court ...

REVISION: Introduction: The Place of Agencies in Polarized Government

By Cynthia R. Farina

This is one of two complementary essays for a symposium honoring the work of Peter L. Strauss. Also included is the joint introduction. (The second essay is Gillian Metzger, Agencies, Polarization, and the States.) These essays engage one of Strauss’s most germinal writings, “The Place of Agencies in Government: Separation of Powers and the Fourth Branch” to consider whether contemporary polarized politics spells the end of the intricate system of multi-branch control and accountability which, Strauss argued, legitimates administrative agencies. Political polarization has become a major focus in contemporary discussions on congressional activity and governance. The tone of these discussions has grown increasingly grim, as many political scientists, argue that a constitutional system of divided and shared powers hardens current levels of partisan warfare into legislative gridlock. Proposals for reform abound. Scholars and political commentators have called for modifications to the ...

New: Agency and Insanity

By Stephen P. Garvey

This Article offers an unorthodox theory of insanity. According to the traditional theory, insanity is a cognitive or volitional incapacity arising from a mental disease or defect. As an alternative to the traditional theory, some commentators have proposed that insanity is an especially debilitating form of irrationality. Each of these theories faces fair-minded objections. In contrast to these theories, this Article proposes that a person is insane if and because he lacks a sense of agency. The theory of insanity it defends might therefore be called the lost-agency theory. According to the lost-agency theory, a person lacks a sense of agency when he experiences his mind and body moving but doesn’t experience himself as the author or agent of those movements. The title character in the movie Dr. Strangelove suffered from what’s known as alien hand syndrome. People suffering from this syndrome experience the moving hand as their hand but don’t experience themselves as the author or ...

Instrumentalizing the Expressive: Transplanting Sentencing Circles into the Canadian Criminal Trial

By Toby S. Goldbach

This Article examines reforms to criminal sentencing procedures in Canada, focusing on Aboriginal healing circles, which were incorporated as 'sentencing circles' into the criminal trial. Using the lens of comparative law and legal transplants, this Article recounts the period of sentencing reform in Canada in the 1990s, when scholars, practitioners, and activists inquired into Aboriginal confrontation with the criminal justice system by comparing Euro-Canadian and Aboriginal justice values and principles.

Inter-Governmental Dispute Settlement Under Tax Treaties: Lessons from the GATT and International Relations Theory

By Robert Green

The inter-governmental dispute settlement provisions in international trade agreements, particularly the GATT, have evolved into quasi-judicial systems whose rulings cannot be blocked by one party. In contrast, dispute settlement under income tax treaties has remained decidedly "anti-legalistic," relying on endeavors to settle disputes through inter-governmental consultation and negotiation.

New: From Meaning to Money: Translating Injury Into Dollars

By Valerie Hans

Legal systems often require the translation of qualitative assessments into quantitative judgments, yet the qualitative-to-quantitative conversion is a challenging, understudied process. We conducted an experimental test of predictions from a new theory of juror damage award decision making, examining how 154 lay people engaged in the translation process in recommending money damages for pain and suffering in a personal injury tort case. The experiment varied the presence, size, and meaningfulness of an anchor number to determine how these factors influenced monetary award judgments, perceived difficulty, and subjective meaningfulness of awards. As predicted, variability in awards was high, with awards participants considered to be “medium” (rather than “low” or “high”) having the most dispersion. The gist of awards as low, medium, or high fully mediated the relationship between perceived pain/suffering and award amount. Moreover, controlling for participants’ perceptions of ...

New: Areeda-Turner 'Down Under': Predatory Pricing in Australia Before and after Boral

By George A. Hay

In the only predatory pricing case in Australia to reach the High Court, the ideas and recommendations contained in the 1975 Harvard law Review article by Phillip Areeda and Donald Turner were at the heart of the case. That case, the Boral case, decided by the High Court in 2003, raised a number of interesting issues regarding whether and how the test proposed by Areeda and Turner should be employed to deal with price cuts by large firms aimed at competitors. Equally importantly, the case raised some fundamental questions about whether there was a serious “gap” in the Australian equivalent of Section 2 of the Sherman Act - Section 46 of the Competition and Consumer Act 2010, formerly the Trade Practices Act 1974 (TPA) - which made it difficult to challenge predatory conduct. Boral led immediately to some radical changes in the TPA but, even today, more than 10 years after Boral, Australians are still struggling to come up with the right statutory framework to deal with predatory ...

REVISION: State Criminal Appeals Revealed

By Michael Heise

Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments. We focus on two subpools of state criminal appeals: a defendant’s first appeal of right, and defense appeals to courts of last resort with the discretion to grant or deny review. Error correction, of course, is paramount in the first context, for typically an appeal of right is a defendant’s only chance at review. By contrast, courts of last resort with ...

REVISION: Consumer Internet Standard Form Contracts in India: A Proposal

By Robert A. Hillman

India has experienced a dramatic increase in consumer Internet shopping due to its convenience and the myriad choices of the Internet. Further, India enjoys a rapidly developing economy, rising living standards, and improving middle-class income, all of which promote Internet shopping. However, worldwide, few consumers read their e-standard forms and India is likely no exception. In addition, the legal framework in India is inadequate to police vendor opportunism in the form of drafting unfair e-standard terms. Because consumer confidence is a prerequisite to growing Internet commerce, a more comprehensive and direct solution would be beneficial to India’s economy Consumer Internet Standard Form Contracts in India: A Proposal first examines existing strategies to protect consumers and concludes they may be inadequate. The article argues that the most promising approach to consumer protection comes from the American Law Institute’s (ALI) Principles of the Law of Software Contracts. ...

REVISION: Oversight of the Financial Stability Oversight Council: Due Process and Transparency in Non-Bank SIFI Designations

By Robert C. Hockett

This is testimony given by the author before the House Committee on Financial Services on 19 November 2015 in connection with MetLife v. Financial Stability Oversight Council (FSOC). The author argues that the FSOC's SIFI-designation process represents a textbook case of a familiar finance-regulatory strategy, long upheld by our courts, aimed at dutifully discharging necessary Congressional delegation on the one hand while comporting with separation of powers and due process values on the other hand. He also argues that FSOC represents a quintessentially American, pragmatic solution to the long-festering 'silo' problem in American financial regulation, and that its designations of systemically important financial institutions (SIFIs), decided as they are by all of the nation's principal financial regulators, are entitled to great deference on grounds of (a) well-settled doctrine under Chevron, (b) the highly technical character of the problem with which FSOC deals, and (c) the ...

REVISION: Public Actors in Private Markets: Toward a Developmental Finance State

By Robert C. Hockett & Saule T. Omarova

The nation's recent financial crisis brought into sharp relief fundamental questions concerning the social function and purpose of the financial system, including its relation to the "real" economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a "developmental finance state" – is based on three key propositions: (1) that economic and social development is not an "end-state" but a continuing national policy priority; (2) that the modalities of finance are the most potent means of fueling development; and (3) that the state, as the most potent financial actor, both must and often does pursue its developmental goals by acting endogenously – i.e., as a direct participant in private financial markets.

REVISION: When Empathy Bites Back: Cautionary Tales from Neuroscience for Capital Sentencing

By Sheri Lynn Johnson

Empathy lies at the core of the capital trial. If jurors come to see the defendant as “different,” “other,” or not “fully human,” they are more likely to determine that the defendant “deserves” the ultimate punishment, making what the Supreme Court has described as essentially a moral judgment about the value of the life of the accused. Conversely, if jurors can identify with the defendant, imagine his “walk in life,” or “see the world through his eyes,” they are less likely to choose the death penalty. Despite its importance and decades of research, empathy is not clearly understood, and its implications for capital trials are largely unexplored. This Article examines the implications of emerging neuroscientific findings regarding empathy for capital trials. We consider implications for jury selection, the presentation of evidence, and arguments by counsel. We conclude that the neuroscience findings we have summarized provide additional support for our prior conviction: It is not ...

New: Regulating Markets for Gestational Care: Comparative Perspectives on Surrogacy in the United States and India

By Sital Kalantry

There are many jurisdictions in the world where there is no legislation or case law that addresses surrogacy. In those jurisdictions, people freely enter into contracts for the sale and purchase of gestational care (defined below). Eighteen U.S. states and India, as well as at least forty countries, have no legislation or case law that permits, prohibits, or regulates surrogacy. This regulatory lacuna typically occurs either because of a failure to reach a consensus on legislation about the issue or sheer neglect of it.

REVISION: Law in Hiding: Market Principles in the Global Legal Order

By Odette Lienau

Standing in the background of the global legal order are a range of what might be called “market principles” or “market givens”-collective presentations or beliefs about how markets work-which are treated as objective descriptions at a particular time and place. This Article argues that such market givens should be understood as a kind of “law in hiding,” shaping the policy space available to states and other actors and affecting global legal developments in important but unrecognized ways. Drawing on examples from global financial law, rules on capital mobility, and sovereign debt practices, I demonstrate how market principles can provide the real substantive content for conventionally recognized law, effectively counter official law, and act as powerful rules in the absence of clear legal standards. I further consider why “law” is a suitable categorization for these market principles, adopting a broad definition that derives from and pushes forward recent international legal ...

Who is the Sovereign in Sovereign Debt? Reinterpreting a Rule-of-Law Framework from the Early Twentieth Century

By Odette Lienau

Combining legal interpretation with political science analysis, this Article highlights the competing "statist" and "popular" conceptions of sovereignty at stake in sovereign debt issues. It argues that these two dominant approaches do not exhaust the offerings of intellectual history and considers an alternative approach that emerged in the early twentieth century and may be of relevance again today. The Article contends that U.S. Chief Justice Taft's foundational 1923 "Tinoco" decision, which grounds the current approach to sovereign governmental recognition, has been misinterpreted to support a purely statist or absolutist conception of sovereignty.

New: Private Law and the Future of Patents

By Oskar Liivak

As it operates today, patent law does not qualify as private law and, without change, I doubt it ever will. For some, this is as it should be and any private law aspects that remain in the patent system should be purged. The basic argument is that the dominant theory of patents is just not compatible with private law and patent doctrine should reflect a pure public law theoretical basis. I agree that today's dominant patent theory is incompatible with private law principles. Yet agreeing with that inherent incompatibility does not imply that doctrine needs to be reformed. There is an alternative. Patent theory can be adjusted instead. This article points to an emerging innovation-focused basis for patent law that is explicitly private law. Not only does that lead to consistency, the change also offers a desperately needed promise of private law. Private law institutions offer the potential for extremely low administration costs. Private law institutions function smoothly ...

New: Personal Identity Without Persons

By Jens David Ohlin

The project takes as its starting point our conflicting intuitions about personal identity first exposed by Bernard Williams’ thought experiment involving the switching of bodies in “The Self and the Future,” and debated in the literature in various forms since, most famously by Derek Parfit in Reasons and Persons. The conflicting intuitions are identified as animalist and psychologist and correspond roughly with the two major approaches to personal identity in the philosophical literature. The traditional strategy to resolve the conflict—thought experiments—is critically examined and the project concludes that proper thought experiments will reveal the conflict but are unlikely to resolve it. A new reading of the conflict is therefore proposed. The concept of the person is a cluster concept with distinct components: biological human beings, rational agency, and psychological continuity, where the latter is construed as the temporal analog of phenomenological unity at a time. The ...

REVISION: White Paper: A National Investment Authority

By Saule Omarova

The contemporary American economy presents a troubling paradox. On the one hand, capital and yield-hungry investors are sufficiently plentiful in the financial system to generate recurrent and devastating asset price bubbles and busts. On the other hand, capital and “patient” investors are so scarce in the nonfinancial and infrastructure sectors that the U.S. has steadily fallen behind its competitors in cutting-edge industries and high quality infrastructure. The explanation for this paradox is not hard to find. Unlike during the nation’s most dynamic and prosperous periods in the past, there is at present no public instrumentality tasked with devising and implementing any ongoing national development strategy, or with directing the capital needed to implement it. No private actor or group of such actors is up to this task. Individual time horizons are too short, and individual capacity to bear long-term risks and capture fair shares of public goods too miniscule, to render such ...

REVISION: When ‘Special’ Means Vestigial: What Bank Regulation Tells Us About the Corporation – And Vice Versa

By Robert C. Hockett & Saule T. Omarova

There is a remarkable yet seldom remarked set of parallels between modern bank regulation on the one hand, and what used to be garden variety corporation law on the other hand. Just as bank charters are matters not of right but of conditional privilege even today, for example, so were corporate charters and limited liability privileges not long ago. Just as chartered banks enjoy limited, enumerated powers beyond which they may not stray even today, moreover, so were corporations restricted to limited purposes, on pain of their constituents’ being found to have acted ultra vires and thereby forfeited their limited liability, not long ago. And just as banks are quite heavily capital-regulated even today, so were most corporations not long ago. It is natural to wonder whether these and other parallels are merely curious accidents, or whether there is instead some ‘deep’ explanation that accounts for them. If the answer is the latter, then it is also natural to wonder why the ...

New: Beyond Finance: Permissible Commercial Activities of U.S. Financial Holding Companies

By Saule Omarova

This essay explains the legal basis for, and examines public policy implications of, recent expansion of large U.S. financial holding companies’ non-financial business activities. Despite its potentially significant impact on economic growth and systemic stability, this phenomenon of financial conglomeration beyond finance remains poorly understood. Yet, any truly comprehensive and effective reform of financial services regulation must address public policy issues that arise when “too-big-to-fail” banks grow even bigger and more systemically significant by combining finance with commerce.

New: Land Use Regulation (Second Edition)

By Eduardo M. Peñalver

This casebook offers a concise, user-friendly presentation of land use law which incorporates a focus on critical thinking and practice throughout. The casebook devotes an entire chapter to complex and realistic scenarios that provide students an opportunity to bring to bear what they have learned throughout the semester to solve challenging legal and strategic problems. New materials in the second edition ensure that students will become familiar with the latest trends in land use law. Attached is the table of contents.

REVISION: Judging the Judiciary by the Numbers: Empirical Research on Judges

By Jeffrey J. Rachlinski

Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that influence ordinary adults. The weight of the evidence, however, suggests that judges are vulnerable to systematic deviations from the ideal of judicial impartiality.

REVISION: Constitutionalism and the Foundations of the Security State

By Aziz F. Rana

Scholars often argue that the culture of American constitutionalism provides an important constraint on aggressive national security practices. This article challenges the conventional account by highlighting instead how modern constitutional reverence emerged in tandem with the national security state, functioning critically to reinforce and legitimate government power rather than simply to place limits on it. This unacknowledged security origin of today’s constitutional climate speaks to a profound ambiguity in the type of public culture ultimately promoted by the Constitution. Scholars are clearly right to note that constitutional loyalty has created political space for arguments more respectful of civil rights and civil liberties, making the very worst excesses of the past less likely. But at the same time, public discussion around protecting the Constitution – and with it a distinctively American way of life – has also served as a key justification for strengthening the ...

REVISION: Diplomacy and Its Others: The Case of Comfort Women

By Annelise Riles

The “Comfort Women incident,” now at least several decades old, troubles the familiar view of law as a funnel for politics. Viewed as a funnel, the wide range of legal, political, cultural, and diplomatic efforts to seek or resist redress for the system of sexual slavery institutionalized by the Japanese military during the Second World War would be assessed as ultimately pushing in the same direction: toward vindicating human rights. We see in the Comfort Women incident a far more chaotic interaction of law and politics. As critical legal feminist, we are concerned with finding a truthful and ethical way to respond to the horrors of sexual slavery, while also recognizing that claims on behalf of victims are often appropriated by nationalist, imperialist, and capitalist agendas. The first step in our project on the place of multi-situational law in a multi-situational politics of responses to the Comfort Women issue, this brief presentation identifies what we term the diplomatic ...

New: Megafirms

By Stewart J. Schwab

This Article documents and explains the amazing growth of the largest firms in law, accounting, and investment banking. Scholars to date have used various supply-side theories to explain this growth, and have generally examined only one industry at a time. This Article emphasizes a demand-side explanation of firm growth and shows how the explanation is similar for firms in all "project" industries. Legal regulation also plays an important role in determining industry structure. Among the areas covered in this Article are the growth of Multidisciplinary Practice firms (MDPs). MDP growth can best be understood by looking more broadly at the demand forces driving project industries. This Article also applies its framework to the breakup of the Big Five accounting firms, to the consolidation trend in the investment banking industry, and to the divergent growth patterns of the law firms in the plaintiffs' securities litigation field.

New: Expanding the Reach of the Commodity Exchange Act's Antitrust Considerations

By Gregory Scopino

In recent years, a small group of financial institutions have paid billions of dollars to settle civil and criminal claims that they formed cartels to rig the prices of certain critically important financial instruments and to stifle competition in others. For example, bankers would rig global benchmark interest rates for the purposes of benefitting their trading positions in over-the-counter (OTC) interest-rate swaps, which are bets on future interest rate movements. By conspiring with horizontal competitors to fix the benchmarks that were components of the prices of financial instruments, financial institutions and their employees harmed competition by warping the normal market factors that governed the prices of those instruments. The U.S. regulator for these markets, the Commodity Futures Trading Commission (CFTC), has broad authority to combat fraud and market manipulation, but it is not feasible to place all relevant forms of misconduct into one of those two categories. ...

New: The Importance of The Gap

By Emily L. Sherwin

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.

REVISION: Corporate Governance as Privately-Ordered Public Policy: A Proposal

By Lynn Stout

In this Article, we show how our society can use corporate governance shifts to address, if not entirely resolve, a number of currently pressing social and economic problems. These problems include: rising income inequality; demographic disparities in wealth and equity ownership; increasing poverty and income insecurity; a need for greater innovation and investment in solving problems like disease and climate change; the “externalization” of many costs of corporate activity onto third parties such as customers, employees, creditors, and the broader society; the corrosive influence of corporate money in politics; and discontent and loss of trust in the capitalist system among a large and growing segment of the population. We demonstrate how, to a very significant extent, these problems can be traced to the way shares in business corporations are currently owned, traded, and voted. We also offer a plausible plan for shifting the structure of share ownership, trading, and voting to ...

REVISION: Transnational Migration, Globalization, and Governance: Reflections on the Central America – United States Immigration Crisis

By Chantal Thomas

The Central America - U.S. border crisis has stoked the fires of a roaring debate on immigration and immigration reform. At a time when real economic growth in the global North continues to stagnate, and income inequality continues to intensify, conditions favor a certain kind of xenophobia that scapegoats immigrants for socioeconomic ills. Under such understandings, immigration influxes are portrayed as exogenous phenomena, but, in fact, migration from the global South to the global North often operates in a kind of boomerang effect. Current asylum and immigration patterns often reflect reactions to previous political and economic interventions by the global North in the home territories of the migrant populations. This article considers these background dynamics in relation to the immigration and asylum surge from Central America, and reflects on the interrelationship and utility of existing paradigms of migration law. A central finding criticizes the narrow understanding of ...

New: The Yale Law Journal Online: Liquid Assets: Groundwater in Texas

By Gerald Torres

The Yale Law Journal Online has just published Liquid Assets: Groundwater in Texas, an essay by Gerald Torres that addresses the piecemeal management of groundwater resources in the American West. A recent Texas Supreme Court case, Edwards Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012), has significantly transformed the groundwater regime in Texas, and its changes are expected to inform discussion throughout the region, where water is scarce and valuable. Torres argues that Day has “sown

New: An Evolving Foreclosure Landscape: The Ibanez Case and Beyond

By Laura Underkuffler

Mortgage securitization, subprime lending, a persistently weak housing market, and an explosion of residential mortgage defaults – today’s homeowners and banks face a new and challenging landscape. Recently, courts in several states have issued decisions that alter the terrain for mortgage foreclosures. In Massachusetts, New Jersey, and New York, among other states, courts have dismissed foreclosure actions on the basis of what might seem to be highly technical deficiencies in the pleading or proof. The most well-known–and controversial–in this cluster of cases is U.S. Bank National Ass’n v. Ibanez, decided by the Supreme Judicial Court of Massachusetts this year. In Ibanez, the court held that two assignee banks failed to obtain legal title to foreclosed properties because they failed to prove that they held valid assignments of the foreclosed mortgages at the moment that the foreclosure proceedings were begun.

REVISION: The Rule of Law and Legal-Process Reasons in Attorney Advising

By W. Bradley Wendel

This is an intervention in long-standing debates in the philosophy of law and the theory of professional ethics. In jurisprudential terms, it elaborates on H.L.A. Hart’s concept of the internal point of view, which is the perspective of one who views the law as creating obligations, not merely affecting one’s prudential calculations. In other words, Hart’s idea is that the law must be capable of normativity. Hart limited this conceptual requirement to judges, who are obligated to take the internal point of view, leaving a deeply important open question concerning the attitude that citizens and their advisors must take with respect to the law. The argument in this Article is that it is a constitutive principle of the professional obligations of lawyers that they regard the law from the internal point of view. From this obligation flow further, more specific duties of good faith in interpretation of the law. The Article therefore connects scholarship on the nature of law with more ...

New: In Defense of Non-Capital Habeas: A Response to Hoffman and King

By Keir M. Weyble

For decades, federal habeas corpus review of state court judgments has generated wide-ranging, sometimes heated, debate among judges, policymakers, and scholars. In their 2009 Essay, Rethinking the Federal Role in State Criminal Justice, Professors Joseph L. Hoffmann and Nancy J. King added their voices to the exchange, contending that federal habeas corpus review of noncapital state court convictions and sentences should, with narrow exceptions, be abolished. They contend that the expenditure

REVISION: Rethinking Chutes: Incentives, Investment, and Innovation

By Charles K. Whitehead

Eighty-two percent of public firms have golden parachutes (or “chutes”) under which CEOs and senior officers may be paid tens of millions of dollars upon their employer’s change in control. What justifies such extraordinary payouts? Much of the conventional analysis views chutes as excessive compensation granted by captured boards, focusing on the payouts that occur following a takeover. Those explanations, if they ever were complete, miss the mark today. This Article demonstrates, theoretically and empirically, that chutes are less relevant to a firm during a takeover than they are before a takeover, particularly in relation to firms that invest in innovation. Chutes assure managers of realizing the long-term value of their work, even if the firm is later acquired. As a result, managers are more likely to make specific investments in innovation whose value may not be realized for some time — but that which are essential to sustaining long-term performance. Moreover, when granted, a ...

Permanent Faculty

A - K

L - Z

Gregory S. Alexander
A. Robert Noll Professor of Law

Joel Atlas
Director of the Lawyering Program and Clinical Professor of Law

Sandra Babcock
Clinical Professor of Law

John J. Barceló III
William Nelson Cromwell Professor of International and Comparative Law

Celia Bigoness
Assistant Clinical Professor of Law (Lawyering)

John H. Blume
Samuel F. Leibowitz Professor of Trial Techniques; Director of Clinical, Advocacy and Skills Programs; Director, Cornell Death Penalty Project

Cynthia Grant Bowman
Dorothea S. Clarke Professor of Law

Elizabeth Brundige
Assistant Dean for International Programs
Associate Clinical Professor of Law
Jack G. Clarke Executive Director of International and Comparative Legal Studies

Femi Cadmus
Edward Cornell Law Librarian, Associate Dean for Library Services, and Professor of the Practice

Josh Chafetz
Professor of Law

Kevin M. Clermont
Robert D. Ziff Professor of Law

Zachary D. Clopton
Assistant Professor of Law

Sherry F. Colb
Professor of Law and Charles Evans Hughes Scholar

Angela B. Cornell
Clinical Professor of Law

Matthew D'Amore
Professor of the Practice, Cornell Tech

Michael C. Dorf
Robert S. Stevens Professor of Law

Cynthia R. Farina
William G. McRoberts Research Professor in Administration of the Law

Catherine H. Finn
Lecturer of Law

Michelle A. Fongyee Whelan
Clinical Professor of Law (Lawyering)

Lara Gelbwasser Freed
Clinical Professor of Law (Lawyering)

Maggie Gardner
Assistant Professor of Law

Stephen P. Garvey
Professor of Law

Robert A. Green
Professor of Law

James Grimmelmann
Professor of Law, Cornell Tech,Professor of Law, Cornell Tech,Professor of Law, Cornell Tech

Valerie Hans
Professor of Law

George A. Hay
Charles Frank Reavis Sr. Professor of Law and Professor of Economics

Michael Heise
Professor of Law

Robert A. Hillman
Edwin H. Woodruff Professor of Law

Robert C. Hockett
Edward Cornell Professor of Law

Barbara J. Holden-Smith
Professor of Law

William A. Jacobson
Clinical Professor and Director of the Securities Law Clinic

Sheri Lynn Johnson
James and Mark Flanagan Professor of Law

Sital Kalantry
Clinical Professor of Law

Jaclyn Kelley-Widmer
Assistant Clinical Professor of Law (Lawyering)

Mitchel Lasser
Jack G. Clarke Professor of Law

Odette Lienau
Professor of Law

Oskar Liivak
Professor of Law

Beth Lyon
Clinical Professor of Law

Joe Margulies
Professor of Law and Government

Andrei Marmor
Jacob Gould Schurman Professor of Philosophy and Law

Estelle M. McKee
Clinical Professor of Law (Lawyering)

Andrea J. Mooney
Clinical Professor of Law

Muna B. Ndulo
Professor of Law; Elizabeth and Arthur Reich Director, Leo and Arvilla Berger International Legal Studies Program; Director of the Institute for African Development

Jens David Ohlin
Vice Dean and Professor of Law

Saule Omarova
Professor of Law

Eduardo M. Peñalver
Allan R. Tessler Dean and Professor of Law

Jeffrey J. Rachlinski
Henry Allen Mark Professor of Law

Aziz F. Rana
Professor of Law

Annelise Riles
Jack G. Clarke Professor of Far East Legal Studies
and Professor of Anthropology

Stewart J. Schwab
Jonathan and Ruby Zhu Professor of Law

Emily L. Sherwin
Frank B. Ingersoll Professor of Law

John A. Siliciano
Deputy Provost and Professor of Law

Laura Spitz
Vice Provost, Cornell University
Associate Dean for International Affairs and Senior Lecturer of Law, Cornell Law School

Jed Stiglitz
Associate Professor of Law, Jia Jonathan Zhu and Ruyin Ruby Ye Sesquicentennial Fellow

Lynn Stout
Distinguished Professor of Corporate & Business Law

Nelson Tebbe
Professor of Law

Chantal Thomas
Professor of Law

Gerald Torres
Jane M.G. Foster Professor of Law

Laura Underkuffler
J. DuPratt White Professor of Law

W. Bradley Wendel
Associate Dean for Academic Affairs and Professor of Law

Chenay Weyble
Lecturer of Law & Director of Academic Support

Keir M. Weyble
Clinical Professor of Law and Director of Death Penalty Litigation

Charles K. Whitehead
Myron C. Taylor Alumni Professor of Business Law and Director, Law, Technology and Entrepreneurship Program

Stephen W. Yale-Loehr
Professor of Immigration Law Practice

Xingzhong Yu
Anthony W. and Lulu C. Wang Professor in Chinese Law