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 paper 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: A Fourth Way?: Bringing Politics Back into Recess Appointments (and the Rest of the Separation of Powers, Too)

By Josh Chafetz

It sounds odd when stated forthrightly, but most separation-of-powers discussions are largely inattentive to politics. Formalist theories tend to assert that the distribution of powers is set in stone; in contrast, functionalist theories tend to focus on abstract considerations of comparative institutional competence or on ossifying past practice into a "historical gloss" binding the present. Both approaches generally ignore the live political context in which the branches continually compete with one another for decision-making power. "Pragmatic formalist" hybrids, like that proposed by Ron Krotoszynski in his contribution to the Duke Law Journal's annual administrative law symposium, while broadening the list of factors considered in any given case, nevertheless continue to omit live political contexts and concerns. This brief piece, a response to Krotoszynski's analysis of recess appointments, argues for bringing politics back into separation-of-powers analysis. In the ...

REVISION: Conjunction of Evidence and Multivalent Logic

By Kevin M. Clermont

Classical logic and its attendant probability theory produce in law the troublesome conjunction paradox. They tell us that the conjoined likelihood of independent factual elements equals the product of each element’s likelihood. Meanwhile, the law requires only that each element of a cause of action meets the standard of proof. The seeming paradox is that if the cause entails more than one element, no assurance exists that the conjunction of likelihoods will meet the standard of proof. Multivalent logic, however, resolves this conjunction paradox. It maintains that the partial truth produced by factfinding fundamentally differs from the estimated probability of a fact becoming absolutely true as in a lottery. For elements found as partial truths, the elements’ conjoined likelihood logically equals the least likely element’s likelihood. So if each element meets the standard of proof, the conjoined cause of action does too. The law very clearly tells its factfinders to apply the ...

New: Decoding 'Never Again'

By Sherry F. Colb

This article, Decoding “Never Again,” narrates its author’s experience as a child of two Holocaust survivors, one of whom participated in rescuing thousands of his fellow Jews during the war. Colb meditates on this legacy and concludes that her understanding of it has played an important role in inspiring her scholarship about (and ethical commitment to) animal rights. She examines and analyzes the ways in which analogies between the Holocaust and anything else can trigger people’s anger and offense, and she then draws a distinction between occasions when offense is an appropriate response to such analogies and when it need not be. In conclusion, she explains what she believes is the true message of “Never Again,” a commitment that necessarily transcends the particulars of what happened to the Jews during World War II.

New: Brief of Amici Curiae Professors Laurence H. Tribe and Michael C. Dorf in Support of Petitioners: Obergefell v. Hodges; DeBoer v. Snyder

By Michael C. Dorf

Amici curiae are Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, and Michael C. Dorf, the Robert S. Stevens Professor of Law at Cornell University Law School. In addition to their numerous respective other scholarly works on same-sex marriage and constitutional law more generally, twenty-five years ago Professors Tribe and Dorf wrote an article and a book addressing an issue that is implicit in the Court’s first certiorari question but that may be given insufficient attention by the parties: At what level of generality should the fundamental right to marry be formulated? This brief considers that question in the event that this Court wishes to rest its judgment on principles of due process instead of, in addition to, or as this brief urges, as intertwined with, principles of equal protection. This brief addresses whether state bans on same-sex marriage violate the Due Process Clause of the Fourteenth Amendment. It ...

New: Democratic Deliberation in the Wild: The McGill Online Design Studio and the RegulationRoom Project

By Cynthia R. Farina

Although there is no single unified conception of deliberative democracy, the generally accepted core thesis is that democratic legitimacy comes from authentic deliberation on the part of those affected by a collective decision. This deliberation must occur under conditions of equality, broadmindedness, reasonableness, and inclusion. In exercises such as National Issue forums, citizen juries, and consensus conferences, deliberative practitioners have shown that careful attention to process design can enable ordinary citizens to engage in meaningful deliberation about difficult public policy issues. Typically, however, these are closed exercises — that is, they involve a limited number of participants, often selected to achieve a representative sample, who agree to take part in an extended, often multi-stage process. The question we begin to address here is whether the aspirations of democratic deliberation have any relevance to conventional public comment processes. These processes ...

REVISION: Reading Rosemond

By Stephen P. Garvey

In Rosemond v. United States, decided this past term, the Court spoke to the requirements under 18 U.S.C. § 2 for liability as an aider and abettor to the use or carriage of a firearm during a crime of violence or drug trafficking crime in violation of 18 U.S.C. § 924(c). Here I offer my reading of Rosemond. I hope it will be useful to litigants and lower courts (and law professors) as they try to understand what the Court said and didn’t say — or maybe should have said differently — as it addressed Rosemond’s arguments.

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: Anti-Competitive Agreements: The Meaning of 'Agreement'

By George A. Hay

In the classic cartel, supposed competitors meet in the proverbial smoke-filled hotel room and agree to fix prices at supra-competitive levels. Even though the “agreement” is unlikely to be legally binding on the parties (i.e., the agreement could not be enforced against one of the cartelists that began to “cheat” by offering lower prices), virtually all modern economies would treat such a cartel as unlawful under their national antitrust laws. Despite the effectiveness of leniency prog

REVISION: The Death of Death Row Clemency and the Evolving Politics of Unequal Grace

By Michael Heise

While America’s appetite for capital punishment continues to wane over time, clemency for death row inmates is all but extinct. Moreover, what little clemency activity that persists continues to distribute unevenly across gender, racial and ethnic groups, geography, governors’ political affiliation, and over time. Insofar as courts appear extremely reluctant to review – let alone interfere with – clemency activity, little, if any, formal legal recourse exists. Results from this study of clemency activity on state death rows (1973-2010) suggest that potential problems arise, however, to the extent that our criminal justice system relies on clemency to function as coherent extrajudicial check.

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: 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.

New: 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-Selective Abortion Bans: Anti-Immigration or Anti-Abortion?

By Sital Kalantry

A new wave of legislation is sweeping state legislatures across the United States: laws prohibiting health professionals from providing an abortion if they believe a woman is seeking one because she does not want to have a child of a certain sex. Eight states have enacted such laws, and nearly half of all state legislatures in the country have considered them since 2009 and a bill is currently pending in the U.S. Congress. The preamble of these bills claim that these bans are needed to curb the tendency among Asian-American women to abort female fetuses consistent with practices in China and India. The Asian American population is the fastest growing racial group in the United States today. It is natural to question whether these bans are being adopted in response to the growing Asian population in the United States or because of anti-abortion sentiments. To test the hypothesis, I determined whether there is an association between whether a state considers and/or passes a ban on ...

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.

REVISION: When Nominal is Reasonable: Damages for the Unpracticed Patent

By Oskar Liivak

To obtain a substantial patent damage award via reasonable royalties, a patentee need not commercialize the patented invention; infringement is all that is needed. This surely incentivizes patenting but it disincentivizes innovation. Why commercialize yourself? The law allows you to wait for others to take the risks, and then you emerge later to lay claim to “in no event less than a reasonable” fraction of other people’s successes. Today, it is rational to be a patent troll rather than an innovator. This troll enabling interpretation of reasonable royalties is wrong as a matter of patent policy and, surprisingly, it is also wrong as a matter of patent history and statutory interpretation. The creation of reasonable royalties by the courts in the nineteenth century did mark a significant change to patent damages but it was nowhere near as sweeping as today’s interpretation would suggest. Up to the mid-1800s, the existing routes to patent damages were stringent, available only ...

REVISION: Co-Perpetration: German Dogmatik or German Invasion?

By Jens David Ohlin

The ICC's doctrine of co-perpetration is heavily influenced by German criminal law theory. To some judges and observers, the ICC’s importation of Claus Roxin’s famous Control Theory of Perpetration is evidence that the ICC is finally getting serious about criminal law theory. To critics, though, the application of a particularly Germanic interpretation of co-perpetration is evidence that one legal culture is having an outsized influenced on the direction of the court’s jurisprudence. In order to understand and evaluate this complaint, it is necessary to situate the current doctrines within historical context, since in many respects the ICC’s doctrine of co-perpetration is a reaction against the modes of liability applied at the ICTY and the ICTR. After providing that historical context, this Commentary will analyze the foundations of the ICC doctrine, explain and evaluate the most notable objections to it, and consider alternate versions that could be applied by the ICC in place of ...

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

By Saule 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 ...

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: Colonialism and Constitutional Memory

By Aziz F. Rana

The United States shares a number of basic traits with various British settler societies in the non-white world. These include longstanding histories in which colonists and their descendants divided legal, political, and economic rights between insiders and subordinated outsiders, be they expropriated indigenous groups or racial minorities. But Americans rarely think of themselves as part of an imperial family of settler polities and instead generally conceive of the country as quintessentially anti-imperial and inclusive. What explains this fact and what are its political consequences? This essay, prepared for the Third "Law As..." Symposium, offers an initial response, arguing that a significant reason is the symbolic power of the American Federal Constitution in sustaining a particular narrative of the country as free and equal from the founding. Although this creedal narrative has played a powerful and productive role in creating a more inclusive national community, it ...

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.

REVISION: An Empirical Analysis of CEO Employment Contracts: What Do Top Executives Bargain For?

By Stewart J. Schwab

In this paper, we examine the key legal characteristics of 375 employment contracts between some of the largest 1500 public corporations and their Chief Executive Officers. We look at the actual language of these contracts, asking whether and in what ways CEO contracts differ from what are thought of as standard employment contract features for other workers. Our data provide some empirical answers to several common assertions or speculations about CEO contracts, and shed light on whether these contracts are negotiated solely to suit the preferences of CEOs or have provisions that insure that the employers' interests are also safeguarded. After giving an overview of the general characteristics of a CEO employment contract, and the process by which they are negotiated, we focus on five contracting issues: (1) the term just cause that defines when an executive can be terminated involuntarily with penalties; (2) the good reason termination clauses in the contract that permit an ...

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 ...

New: Why In Re Omegas Group Was Right: An Essay on the Legal Status of Equitable Remedies

By Emily L. Sherwin

This article is part of a symposium on the new Restatement (Third) or Restitution and Unjust Enrichment. I take up the problem of constructive trusts in bankruptcy. The Restatement takes the position that constructive trust claimants have automatic priority in insolvency situations over ordinary creditors. I argue that this unduly reifies a remedial construct that is useful for capturing unjust enrichment but does not always do so in cases of insolvency.

New: Killing Conscience: The Unintended Behavioral Consequences of 'Pay For Performance'

By Lynn Stout

Contemporary lawmakers and reformers often argue that ex ante incentive contracts providing for large material rewards are the best and possibly only way to motivate corporate executives and other employees to serve their firms’ interests. This Article offers a specific critique of the “pay for performance” approach. In particular, it explores why, for a variety of mutually-reinforcing reasons, workplaces that rely on ex ante incentive contracts suppress unselfish prosocial behavior (conscience) and promote selfishness and opportunism. The end result may be not more efficient employee behavior, but more uncooperative, unethical, and illegal employee behavior.

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: Religious Exceptionalism and Human Rights

By Laura Underkuffler

When we think of human rights and religion, we generally think of complimentary — or even subsumed — ideas. Human rights include all of those human capacities and freedoms that are essential to human existence. This includes freedom of religion. And although there are disputes in the twenty-first century world legal order about some human-rights claims, freedom of religion is not one of them. It is universally recognized, at least as an abstract idea, as a fundamental human right. However, this happy identity of religion and human rights is a superficial one. This is because freedom of religion, asserted as a human right by one person, might involve — as its consequence or even its object — the denial of the human rights of others. When this occurs, the simple identity of religion and human rights breaks down; instead the two become severe antagonists. In this essay, I will explore the issues involved in the antagonism between religion and human rights. In particular, I will ...

REVISION: A Legal Ethics Perspective on Alternative Litigation Financing

By W. Bradley Wendel

One of the foundational principles of legal ethics is that the lawyer owes an obligation of undivided loyalty to the client, and no other interests or relationships can be permitted to interfere with the lawyer’s exercise of independent professional judgment on behalf of the client. The strongest non-consequentialist doctrinal objection to third-party litigation funding is that it may compromise the lawyer’s independence. Yet this argument cannot be made in too strong a form, because lawyers are already permitted to enter into relationships or have interests that present a prima facie risk to the lawyer’s independence. In the United States, two such situations are the representation of plaintiffs in contingent-fee financed litigation and the representation of insured defendants by lawyers compensated, and substantially controlled, by liability insurers. Both of these situations present conflicts of interest that are mitigated for the most part not by formal rules of professional ...

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: Paying for Risk: Bankers, Compensation, and Competition

By Charles K. Whitehead

Efforts to control bank risk address the wrong problem in the wrong way. They presume that the financial crisis was caused by CEOs who failed to supervise risk-taking employees. The responses focus on executive pay, believing that executives will bring non-executives into line — using incentives to manage risk-taking — once their own pay is regulated. What they overlook is the effect on non-executive pay of the competition for talent. Even if executive pay is regulated, and executives act in the bank’s best interests, they will still be trapped into providing incentives that encourage risk-taking by non-executives due to the negative externality that arises from that competition. Greater risk-taking can increase short-term profits and, in turn, the amount a non-executive receives, potentially at the expense of long-term bank value. Non-executives, therefore, have an incentive to incur significant risk upfront so long as they can depart for a new employer before any losses ...

Permanent Faculty

A - H

I - 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 (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
Executive Director of the Avon Global Center and Assistant Clinical Professor of Law

Femi Cadmus
Edward Cornell Law Librarian, Associate Dean for Library Services and Senior Lecturer in Law

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

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

Lara Gelbwasser Freed
Clinical Professor of Law (Lawyering)

Glenn G. Galbreath
Clinical Professor of Law

Elizabeth Garrett
President, Cornell University and Professor of Law

Stephen P. Garvey
Professor of Law

Robert A. Green
Professor of Law

Valerie Hans
Professor of Law

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

Susan Hazeldean
Associate Clinical Professor

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
Associate Dean for Public Engagement and the James and Mark Flanagan Professor of Law

Sital Kalantry
Clinical Professor of Law

Mitchel Lasser
Jack G. Clarke Professor of Law

Odette Lienau
Associate Professor of Law

Oskar Liivak
Professor of Law

Beth Lyon
Clinical Professor of Law

Joe Margulies
Professor of Law and Visiting Professor of 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 (Lawyering)

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
Senior Vice Provost Academic Affairs and Professor of Law

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

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