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 ...

Arbitrability Decisions Before, During, and after Arbitration

By John J. Barceló

The arbitration-litigation process respecting international commercial arbitration can be divided into three principal stages. Stage One occurs before a national court where a primary issue is whether the court should decide the merits of the dispute or refer the parties to arbitration. This decision turns on whether the parties have entered a binding and enforceable agreement to arbitrate their dispute -- in other words, whether the dispute is arbitrable.

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: Solving the Puzzle of Transnational Class Actions

By Kevin M. Clermont

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The dominant approach has been an exclusionary one, dropping the absentees from the class. This essay instead recommends an inclusionary approach, so that all the foreigners would remain members of the class in transnational class actions. But the court should create a subclass in damages actions for the foreign claimants who might have an incentive to sue again; the subclass would proceed by the accepted technique of claims-made recovery, so that the subclass members could recover only by submitting a proof of claim along with a release.

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 ...

Authority, Ignorance, and the Guilty Mind

By Stephen P. Garvey

The criminal law holds an actor liable only if he acts with a guilty mind (mens rea). But in what does a guilty mind consist?

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: Lost Ground: Catholic Schools, the Future of Urban School Reform, and Empirical Legal Scholarship

By Michael Heise

The central themes in Brinig and Garnett’s Lost Classroom, Lost Community: Catholic Schools’ Importance in Urban America distill as easily as they haunt. Well-understood is that the United States needs to improve the quality of education as well as its equitable distribution across various sub-classes of students. Paradoxically, students most in need of high-quality education services — including minority students, particularly those from low-income households in urban areas, are more likely assigned to under-performing public schools. Historically, the nation’s Catholic schools provided urban students, including many minority students from low-income households, with more efficacious yet less expensive educational services than their urban public school counterparts. Brinig and Garnett’s book identifies and discusses an especially lethal interaction of an array of key trends: While the need for high-quality, low-cost education services continues its ascent, Catholic ...

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: The Doctrine of Legitimate Defense

By Jens David Ohlin

The following article reorients mainstream conceptions of self-defense by defending a broader doctrine of legitimate defense that, in limited circumstances, justifies unilateral intervention. The source of the doctrine is natural law, which was explicitly incorporated into the text of UN Charter article 51. The effect of this incorporation was to preserve, as a carve-out from the prohibition against force in Article 2, the natural law rights of defensive force. Specifically, the Article concludes that defensive force under natural law included, in extreme situations, a right of intervention in rogue States that refused to comply with natural law. The Article then provides a normative foundation for the doctrine of legitimate defense by showing how the right of self-determination, the right to be free from genocide, and the right to self-defense, all flow from a more primary right to exist that applies to nations and peoples. Finally, drawing on earlier work published with George ...

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.

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: 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: Whose Truth? Objective and Subjective Perspectives on Truthfulness in Advocacy

By W. Bradley Wendel

A lawyer confronts many features of the world that are given, inflexible, and must simply be dealt with; at the same time she has latitude for creativity, for the exercise of skill and judgment toward the realization of the client’s ends. Although in law school it may seem that the law that is open-textured, manipulable, and the wellspring of creative lawyering, in practice the facts do not come pre-packaged and accepted as true for the purposes of an appellate court’s review, but are highly contingent and the product of the interaction between a lawyer and witnesses, documents, and other sources of information. It is exactly in this respect, however, that the theory of legal ethics is relatively under-developed. In recent years, legal ethics scholarship has changed its emphasis from ordinary first-order morality to a consideration of issues in democratic theory and legal philosophy. Focusing on the legitimacy of norms established through democratic political processes has yielded a ...

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 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
Assistant Clinical Professor of Law
Executive Director, Avon Global Center for Women & Justice

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

Catherine H. Finn
Lecturer of 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

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

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 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 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