New: The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam

By Gregory S. Alexander

In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to “everyone” a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging “right to roam” comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This Article is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life. One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through ...

New: Substantive and Procedural Arbitrability in Ad Hoc Investor-State Arbitration — BG Group v. Argentina

By John J. Barceló

The U.S. Supreme Court has developed a conceptual framework for deciding how much deference an award-enforcing U.S. court must give to the arbitral tribunal’s conclusion that the dispute was properly arbitrable, that is, that the award was based on an existing and valid arbitration agreement and that the claim was admissible. In BG Group v. Argentina, the Court has now developed that framework further and has applied it for the first time to an ad hoc investor state arbitration case seated in the U.S. In BG Group the British investor failed to litigate its claim first in an Argentinian court, as required in the U.K.-Argentina Bilateral Investment Treaty [BIT], but the arbitral tribunal found the local litigation requirement inapplicable and ruled for the investor on the merits. The U.S. Supreme Court concluded that the local litigation requirement was a “procedural arbitrability” question, concerning which an enforcing U.S. court must give deference to the tribunal’s ruling that ...

New: How the 'Shackles' of Individual Ethics Prevents Structural Reform in the American Criminal Justice System

By John H. Blume

The core critique of the modern American Criminal Justice System is that the legislative and judicial expansion of the criminal law in the 1960's and 1970's has led to prosecutorial overcharging which has resulted in mass incarceration. Given the current state of affairs, prosecutors are able to extract guilty pleas in virtually all criminal cases: roughly 95% of all criminal defendants plead guilty. This essay posits that the focus on individual ethics, i.e., the criminal defense lawyer’s obligation to obtain the best result for each individual client, robs the defense bar of the most powerful tool available to them: the ability to collectively refuse to plead guilty. Due to the criminal justice’s systems’ inability to provide jury trials to even a significant percentage of criminal defendants, mass refusal of defense lawyers to negotiate guilty please would result in a much needed paradigm shift in criminal sentencing. The essay will then discuss obstacles to this type of ...

New: Social Science and Legal Policy: The Case of Heterosexual Cohabitation

By Cynthia Grant Bowman

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 disc

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: Governing and Deciding Who Governs

By Josh Chafetz

In McCutcheon v. Federal Election Commission, Chief Justice Roberts wrote that, "Campaign finance restrictions that pursue other objectives [than eradicating quid pro quo corruption or its appearance], we have explained, impermissibly inject the Government 'into the debate over who should govern.' And those who govern should be the last people to help decide who should govern." This passage sounds great — after all, who could object to an attempt to purge official self-dealing, especially in the election-law context? And therein lies its insidiousness: this rousing language masks a programmatic attempt by Roberts and his colleagues to distance themselves rhetorically from the structures and processes of governance and thereby to justify their privileged place above the other branches with regard to such issues. This essay, written for the University of Chicago Legal Forum's 2014 "Does Election Law Serve the Electorate?" symposium, identifies and ...

REVISION: Limiting the Last-in-Time Rule for Judgments

By Kevin M. Clermont

A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound, the last-in-time rule indeed should not apply if the first judgment is American and the second judgment comes from a foreign-nation court. To establish those contentions, this Article must go to the depths of res judicata and conflicts law, here and also abroad, where the first-in-time rule reigns. The Article resurfaces to rearrange the puzzle pieces into a simple reformulation — an ...

REVISION: Data Institutionalism: A Reply to Andrew Woods

By Zachary D. Clopton

In Against Data Exceptionalism, Andrew K. Woods explores “one of the greatest societal and technological shifts in recent years,” which manifests in the “same old” questions about government power. The global cloud is an important feature of modern technological life that has significant consequences for individual privacy, law enforcement, and governance. Yet, as Woods suggests, the legal challenges presented by the cloud have analogies in age-old puzzles of public and private international law. Identifying these connections is a conceptual advance, and this contribution should not be understated. But, to my mind, the most telling statement in Woods’s excellent article comes early on: “Showing that the jurisdictional challenges presented by the global cloud are not conceptually novel does not resolve those problems.” Data may not be exceptional, and the legal puzzles posed by data sound in existing notions of jurisdiction and conflict of laws. The problem, however, is that existing ...

REVISION: Never Having Loved at All

By Sherry F. Colb

Feminist and some other abortion rights advocates typically ground the right to abortion in bodily integrity, thus conceptualizing abortion as vindicating a right to disassociate oneself from an intruder. Although valid as a matter of logic, the bodily integrity argument is libertarian and seemingly selfish. But a fundamentally associative interest also grounds the abortion right. A woman who cannot raise a child but is legally required to bear one must undergo the psychic pain of forced separation from an infant whom she is biologically programmed to love. Human mothers, like other mammalian mothers, grieve the loss of their young, as illustrated by the sad plight of dairy cows. Accordingly, the abortion right may be best understood as protecting not only an interest in bodily separation, but an interest in avoiding loss, that is, an interest in “never having loved at all.”

REVISION: Don't End or Audit the Fed: Central Bank Independence in an Age of Austerity

By Michael C. Dorf

The Federal Reserve (“Fed”) is the central bank of the United States. Because of its power and importance in guiding the economy, the Fed’s independence from direct political influence has made it a target of ideologically motivated attacks throughout its history, with an especially aggressive round of attacks coming in the wake of the 2008 financial crisis and ongoing today. We defend Fed independence. We point to the Fed’s exemplary performance during and after the 2008 crisis, and we offer the example of a potential future crisis in which Congress fails to increase the debt ceiling to show how the Fed’s independence makes it the only entity that can minimize the damage during crises (both market-driven and policy-induced). We further argue that the Fed’s independence is justified to prevent self-dealing by politicians, even when no crisis is imminent. Although the classic justification for Fed independence focuses on the risk that political actors will keep interest rates lower ...

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 ...

REVISION: Authority, Freedom, and the Guilty Mind

By Stephen P. Garvey

Imagine an actor who commits a crime in thrall to a powerful desire. Think, for example, about those we call addicts, phobics, maniacs, philiacs, provokees, and so forth. Do any conditions exist under which such actors should be immune to criminal liability when they choose to commit a crime in order to mollify their enthralling desire? Yes. An actor should be immune to criminal liability when, assuming he freely chooses to commit a crime (and thus satisfies the demand that his act be guilty or his actus reus), he nonetheless fails to manifest a guilty mind or mens rea, i.e., his choice to commit the crime reflected no ill will for the state’s authority or its criminal laws. I doubt this condition will obtain very often, but when it does, any actor fulfilling it is beyond the state’s authority to punish.

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.

REVISION: Introduction to Juries and Mixed Tribunals Across the Globe: New Developments, Common Challenges and Future Directions

By Valerie Hans

English Abstract: The introduction to the special issue 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 highly controversial. The introduction closes by emphasizing the enduring political importance of citizen participation in law. Spanish Abstract: La introducción a este número especial describe los objetivos de la conferencia sobre jurados y tribunales mixtos en el mundo, e identifica los temas que ...

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: Revisiting Eisenberg and Plaintiff Success: State Court Civil Trial and Appellate Outcomes

By Michael Heise

In earlier research on federal civil cases Eisenberg found an association between plaintiff success in pretrial motions and at trial. Our extension of Eisenberg’s analysis twenty years later into the state court context, however, did not find any significant association between a plaintiff’s success at trial and in preserving that trial victory on appeal. Our results imply that a plaintiff’s decision to pursue litigation to a trial court conclusion is analytically distinct from the plaintiff’s decision to defend an appeal of its trial court win brought by a disgruntled defendant. We consider various factors that likely account for the observed differences that distinguish our results from Eisenberg’s. First, legal cases that persist to an appellate outcome are a filtered subset of underlying trials and legal disputes and various selection effects inform much of this case filtering. Second, where Eisenberg analyzed the relation between pre-trial motions and trial outcomes in federal ...

New: Drafting Chapter 2 of the ALI's Employment Law Restatement in the Shadow of Contract Law: An Assessment of the Challenges and Results

By Robert A. Hillman

The American Law Institute (ALI) has just completed the Restatement of the Law Third, Employment Law. Chapter 2 is entitled "Employment Contracts: Termination." As the name suggests, the Chapter focuses on the law's difficult challenge of applying contract law to distinguish lawful terminations of employees from wrongful ones. The question is especially problematic because, on the one hand, employment law's long-existing default rule allows employers to terminate employees "at will" and without cause. Advocates of the at-will doctrine present several policies to support it, including freedom of contract and efficiency. On the other hand, employers seek to attract talented employees and, once employed, establish an "orderly, cooperative and loyal work force." Toward that end, numerous judicial decisions and scholarly research reveal unsurprisingly that employers design their communications to attract employees and create loyal workers. It is no wonder, then, that contract law's ...

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: The Death Penalty: Should the Judge or the Jury Decide Who Dies?

By Sheri Lynn Johnson

This article addresses the effect of judge versus jury decision making through analysis of a database of all capital sentencing phase hearing trials in the state of Delaware from 1977-2007. Over the three decades of the study, Delaware shifted responsibility for death penalty sentencing from the jury to the judge. Currently, Delaware is one of the handful of states that gives the judge the final decision making authority in capital trials. Controlling for a number of legally-relevant and other predictor variables, we find that the shift to judge sentencing significantly increased the number of death sentences. Statutory aggravating factors, stranger homicides, and the victim’s gender also increased the likelihood of a death sentence, as did the county of the homicide. We reflect on the implications of these results for debates about the constitutionality of judge sentencing in capital cases.

REVISION: Sex Selection in the United States and India: A Contextualist Feminist Approach

By Sital Kalantry

Several studies have shown that the ratio of girls to boys has drastically decreased in some countries in the last few decades. China and India are usually cited as countries where the starkest disparities exist. The normal at-birth ratio for boys to girls is 1000 boys to 952 girls. Yet the overall ratio across India is 1000 boys to 943 girls, according to the 2011 census. Many assume that this greater sex ratio gap in India is due to sex selection. Anti-abortion legislators and groups in the United States have pointed to the widespread practice of sex selection in India and have begun to import (often inaccurate) information about India to lobby for, and in many cases successfully enact, state-wide sex selection bans in the United States. Five states have passed sex selection bans; bills are pending to ban sex selection abortion in ten states, and a federal bill has been reintroduced in Congress. Sex selection can be achieved by means other than an abortion, including ...

New: Rethinking Sovereign Debt: Politics, Reputation, and Legitimacy in Modern Finance

By Odette Lienau

This book challenges the prevalent assumption that sovereign debt must be repaid — even after a major regime change — in order to maintain country creditworthiness. It argues that this conventional wisdom is overly simplistic and in some cases entirely wrong, and contends that its underlying assumptions of political neutrality, creditor uniformity, and historical constancy all fall away upon closer inspection. It points out that practices of sovereign debt and reputation are rendered intelligible only with reference to the highly politicized idea of ‘sovereignty,’ and argues that these practices necessarily diverge depending on the approach to sovereignty adopted. Furthermore, the book highlights that creditor uniformity cannot simply be assumed, and in fact different creditors may view — and historically have viewed — the same debt repudiation in opposing ways. It contends that the post-World War I cases of the Soviet Union and Costa Rica have been misinterpreted, used to ...

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: The Unresolved Interpretive Ambiguity of Patent Claims: A Response to Solum and Chiang

By Oskar Liivak

For well over a hundred years patent claims have been at the center of every patent related issue. Yet, what exactly does a patent claim claim? Exactly what type of thing is claim language intended to communicate? Despite their importance, patent law is confused about this central question. Some think of claims in the sense of “I claim to have invented the following things” while others think of them in the sense of “I claim exclusionary dominion over the following things.” These two views communicate quite different information and it impacts both substantive and procedural patent law. Generally, there is agreement about the legal effect of patent claims. With either view, patent claims determine a patent’s exclusion. But, how and why we move from claim text to exclusion differs considerably. Patent scholars, the Federal Circuit, and increasingly the Supreme Court are aiming to improve claim clarity yet all those efforts may prove fruitless unless this underlying ambiguity ...

REVISION: Remoteness and Reciprocal Risk

By Jens David Ohlin

The history of modern weaponry involves the construction of the technological capacity to produce lethal results while exposing the operator to the least amount of risk of death or injury. The most recent examples of this phenomenon are three new weapon categories: remotely piloted vehicles (drones), cyber-weapons, and Autonomous Weapons Systems (AWS). Each of these categories of weapons allows the attacking force to inflict military damage while the operators of the weapon remain safely shielded from the theater of operations. The overall strategy is to create a system that grants the operator total immunity from risk but still inflicts maximum damage to the enemy. This chapter will propose, explain, and critically examine the concept of reciprocal risk. It will seek to determine whether there is, in fact, a historical norm in favor of reciprocal risk in warfare, and how the advent of drones, cyber-weapons, and AWS have impacted this putative norm. After evaluating the alleged ...

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

By Saule 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. In addition to articulating and elaborating the concept of the developmental finance state, this Article ...

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.

REVISION: Exactions Creep

By Eduardo M. Peñalver

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a ...

Blinking on the Bench: How Judges Decide Cases

By Jeffrey J. Rachlinski

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which can also lead to erroneous decisions. Equipped with a better understanding of judging, we then propose several reforms that should lead to more just and accurate outcomes.

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: From Comparison to Collaboration: Experiments with a New Scholarly and Political Form

By Annelise Riles

In both the anthropology of law and comparative legal studies, a new direction for research and practice is emerging: collaboration. This article analyzes collaboration as a modality of comparative law and legal anthropology and indeed a wider template for social and political life at this moment. I consider the theoretical and practical reasons for its importance at this moment, and its implications for the relationship of comparative law and legal anthropology. I argue that the very ubiquity and mundanity of collaboration discourse and practice in law and policy suggests that a response cannot simply be critique from outside — it must entail doing something with and within this template. I work through these claims through the example of a transnational and transdisciplinary collaborative intellectual project I am directing, known as Meridian 180.

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.

REVISION: Preparing Financial Regulation for the Second Machine Age: The Need for Oversight of Digital Intermediaries in the Futures Markets

By Gregory Scopino

Humanity is entering the Second Machine Age, in which artificially intelligent computers and software programs (artificial agents) will become involved in almost every aspect of society. Computers and software programs now drive and park cars, fly drones, compose music, sell insurance, manage investments, and even write news stories. Indeed, computers and software programs are far better –– and quicker –– than humans at jobs that involve looking at numbers and drawing conclusions from them, which would include jobs such as investment advisors and futures traders. The rise of automated trading systems (“ATSs”) that use high-frequency trading strategies in the futures markets is but one example of how technology is fundamentally changing the nature of the financial markets. As a result, humans who are operating as futures market intermediaries (such as commodity trading advisors or introducing brokers) are likely to be displaced by digital intermediaries, that is, artificial agents ...

REVISION: Formal Elements of Contract and Fiduciary Law

By Emily L. Sherwin

Contract law, with its history in the dual systems of law and equity, has resources that allow courts to announce determinate, seemingly absolute, rules but make exceptions at the enforcement stage when the outcome of the rules seems particularly harsh. For better or worse, fiduciary law does not support a comparable type of compromise between determinate rules and equitable exceptions.

New: The Corporation as Time Machine: Intergenerational Equity, Intergenerational Efficiency, and the Corporate Form

By Lynn Stout

This Symposium Article argues that the board-controlled corporation can be understood as a legal innovation that historically has functioned as a means of transferring wealth forward and sometimes backward through time, for the benefit of present and future generations. In this fashion the board-controlled corporation promotes both intergenerational equity and intergenerational efficiency. Logic and evidence each suggest, however, that the modern embrace of “shareholder value” as the only corporate objective and “shareholder democracy” as the ideal of corporate governance is damaging the corporate form’s ability to serve this economically and ethically important function.

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: From Bailouts to Bogs -- Shaking the Takings Money Tree

By Laura Underkuffler

Recently, shareholders of the insurance giant AIG, which received billions of dollars in bailout funds from the federal government at the height of the 2008 financial crisis, filed suit against the United States government for $40 billion. One might think that this claim would be absurd on its face. Commentators – legal and otherwise – appeared to have been caught off guard as to how this could be a plausible legal case. If the government simply offers you a deal, which you can take or leave, how can you sue – later – if you don’t like its terms? This might sound astounding, but it is not. To understand the theory of the AIG litigation, one must go to its deeper, festering root in American takings law. In a series of “exactions” cases, the United States Supreme Court has held that when government offers something (which it has no obligation to offer), in exchange for value of some sort, courts must ensure that this is “fair” – even though the offeree is under no obligation to take ...

REVISION: Litigation Trolls

By W. Bradley Wendel

Third-party financing of litigation has been described with a variety of unflattering metaphors. Litigation financers have been likened to gamblers in the courtroom casino, loan sharks, vultures, Wild West outlaws, and busybodies mucking about in the private affairs of others. Now Judge Richard Posner has referred to third-party financers as litigation trolls, an undeniably unflattering comparison to patent trolls. But what it is, if anything, that makes third-party financers “trolls”? Legal claims are, for the most part, freely assignable, the proceeds of claims are assignable, and various strangers to the underlying lawsuit, including liability insurers and plaintiffs’ contingency-fee counsel, are permitted to have an economic interest in the outcome of the litigation. On one view, therefore, third-party litigation investment is just another innovative financial product that enables risk to be carved up and allocated more efficiently. Life insurance, attorney contingent fees, and ...

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

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)

Stephen P. Garvey
Professor of Law

Robert A. Green
Professor of Law

James Grimmelmann
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
Vice Dean and 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

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
Associate Dean for Academic Affairs 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
Assistant Professor of Law, Jia Jonathan Zhu and Ruyin Ruby Ye Sesquicentennial Fellow

Lynn Stout
Distinguished Professor of Corporate & Business 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
Professor of Law

Chenay Weyble
Lecturer of Law & Director of Academic Support

Keir M. Weyble
Associate 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