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Cornell Law School: Faculty in the News

Members of the Cornell Law faculty are frequently consulted by news media across the world. The following are a sampling of some of the faculty's most recent appearances in the press.

May 2009

The Washington Post quoted William Jacobson in an article about how the gay marriage issue may dominate the nomination process for the next Supreme Court Justice. “ ‘[Same sex marriage] is now the flash point where politics and law meet. That flash point used to be abortion. I don't think anybody thinks that's going to be the flash point in this nomination,’ said William A. Jacobson, a Cornell University law professor and conservative blogger.”

William Jacobson was also quoted in the Investment News discussing a proposed rule change regarding arbitration. “In another sign that industry-affiliated arbitrators may be on their way out, the Financial Industry Regulatory Authority Inc. wants to stop using industry panelists in most cases involving a registered representative and a brokerage firm. … The proposal is a reflection of ‘the industry model [of arbitration's] moving to the public model,’ said William Jacobson, director of the Securities Law Clinic at Cornell University Law School in Ithaca, N.Y.”

April 2009

Reporters for the Christian Science Monitor quoted Michael Dorf in an article (published by numerous publications) about filling the soon to be vacant U.S. Supreme Court seat presently held by Justice David Souter. "‘It's going to be hard to find people who are ideologically liberal versions of Justice Scalia, because what that would mean, I suppose, is a Thurgood Marshall or a Bill Brennan, and American law has moved since the 1970s on a lot of issues,’ says Michael Dorf, a constitutional law professor at Cornell Law School in Ithaca, N.Y. ‘I think it will be very hard to find someone on the liberal side who is an ideological liberal in the way that Scalia is an ideological conservative,’ Dorf says. ‘Part of what people want is someone who is temperamentally a fighter in the way that Scalia is.’ “

The U.S. Supreme Court Monitor and the National Law Journal also quoted Michael Dorf in an article discussing Justice Souter. “Dorf called Souter the ‘counterpoint’ to Scalia on the Court. ‘Souter says, 'I, too, am a conservative, but a traditional conservative who values precedent and craft.' … Souter also has followed what Dorf and others described as ‘the well-worn path’ of justices who come to the Court, apply its death penalty jurisprudence, and become increasingly troubled by it.”

William Jacobson was quoted in a Fox News story on possible Senate Committee problems in replacing Souter on the Supreme Court. " ‘The senators, as political as they can be, they have tended to put value on the rules of conduct,’ [Jacobson] said. ‘To change the rules to get a particular nominee confirmed would set a dangerous precedent. I doubt Democrats would want to do that.’ He added that changing the rules might tick off the unpredictable Specter who has developed a strong respect for tradition.”

March 2009

The New York Times quoted Bernadette Meyler in an article about a German family seeking US asylum in order to have the freedom to home school their 5 children, who range in age from 3 to 11. The parents claim they were persecuted in Germany for their evangelical Christian beliefs and for wanting to home school their children instead of sending them to German schools where the attendance is compulsory. “Bernadette Meyler, a Cornell Law School professor who has studied differences in religious liberty between the U.S. and Europe, said she's never heard of another case like this in the U.S. … Meyler said the U.S. is more tolerant of homeschooling because of religion's prominence in the country's founding. Germany is more concerned about educating students equally, she said. ‘The idea is homeschooling might lead to the emergence of separate societies that would not share the same vision of the (German) state,’ Meyler said.” The article also appeared in German online news pages.

The Catholic Courier quoted John Blume in an article discussing New York State’s proposed “Markey bill"—which would temporarily waive the state's civil statute of limitations on child sexual-abuse lawsuits against individuals and private institutions. It also would lengthen the period in which alleged victims may sue individuals and private organizations for child sexual abuse in the future. “[A]ccording to one legal expert, even if a plaintiff lacked physical evidence of abuse due to the age of the case, it still might not be difficult to prove his or her allegations. John H. Blume, law professor at Cornell University Law School, explained that current law requires plaintiffs to prove their cases with a preponderance—defined as more than 50 percent—of the evidence. ‘Could a case be proven with the unsubstantiated testimony of a victim?’ Blume asked rhetorically. ‘By law, that would pretty much do it, if the fact finder decided to believe it. It’s not like there’s a combination requirement that there be some type of physical evidence of the abuse, although, obviously, it would be a better case if there is.’ ”

The Wall Street Journal quoted Associate Dean Richard Geiger in an article about how law school applications have increased during this recession. “In light of the economy, ‘there are a lot of people who have decided they will not test the job market as a graduating senior from college,’ says Richard Geiger, the associate dean of enrollment at Cornell University Law School, where applications are up 8%.”

February 2009

The National Law Journal mentions Professor Henderson in an article on the complex plan to resolve lawsuits involving the thousands of workers who participated in clearing up the site of the World Trade center after 9/11. “A total of 225 of the most severe cases have been selected by two special masters appointed by Southern District of New York Judge Alvin Hellerstein in the litigation brought by more than 9,000 plaintiffs. … He settled on his final plan for the cases in late 2008, memorializing the procedure in an opinion issued Feb. 19, 2009, explaining his methodology for a case management order that he said was ‘forged with the experience of earlier failures and frustrations’ but also with the cooperation of counsel for both sides and the special masters: Professors James A. Henderson of Cornell Law School and Aaron Twerski of Brooklyn Law School.”

The Wall Street Journal quoted Stewart J. Schwab, the Allan R. Tessler Dean, in an article about how job discrimination cases face fare poorly in federal courts. “Just because more workers have standing to sue doesn't mean that they will receive a better reception in court, if previous patterns hold steady. From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, in all other civil cases, the win rate was 51%, according to a study to be published this month by the Harvard Law & Policy Review. ‘Judges demand more of discrimination cases than other types of cases,’ says Stewart Schwab, a co-author of the study and the dean of Cornell University Law School.”

Smartmoney.com quoted William Jacobson in a discussion of the Financial Industry Regulartory Authority’s rule change. “The new rule would try to level the playing field by preventing brokerages from filing motions before investors even begin to make their case and it would also limit the reasons they can use to justify the filing. Securities lawyers contend the motions often have little merit. Brokerages use them as ‘a tool of harassment’ to stall cases brought against them, says William Jacobson, head of Cornell University’s Securities Law Clinic.”

January 2009

An article by Suzanne Barlyn, of Dow Jones Newswires New York, quoted William Jacobson about the increase of securities arbitration claims in 2008. “’Most investors realize that it will be years - if ever - before their portfolios come back,’ said William Jacobson, director of the securities law clinic at Cornell University Law School. The current crisis is unique, he said, because investors can't recoup many losses, such as those related to defaults and bankruptcy. ‘Investors in this market won't wait years to file claims because it's already apparent that their money is gone,’ he said.”

The Wall Street Journal also quoted William Jacobson in an earlier article about new Securities and Exchange Commission (SEC) rules that will substantially restrict the grounds for granting dispositive motions (motions to dismiss cases). The SEC made these changes in response to complaints that parties were filing such motions “routinely and repetitively, causing increased costs for claimants.” Under the new rules, “arbitrators must also conduct a hearing on the motions to dismiss. A unanimous decision from the panel is required in order to grant such motions. ‘This is one of the biggest changes to securities arbitration—ever,’ said William A. Jacobson, director of the securities law clinic at Cornell Law School. ‘In the context of arbitration, we feel that a claimant should be entitled to a hearing.’ “

The Associated Press mentioned Joshua Chafetz in an article about Illinois Governor Blagojevich’s appointment of Roland Burris to fill the Senate seat left vacant by President-elect Obama. “ ‘It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption,’ Amar [Akhil Amar at Yale University] and Josh Chafetz of Cornell Law School wrote in Slate magazine.”

December 2008

The Seattle Times quoted William Jacobson in an article about a Florida teacher who has filed an arbitration claim against WaMu Investments (now part of JP Morgan Chase) over what he considers was poor investment advice. At the urging of a WaMu investments stockbroker at his WaMu bank, the teacher borrowed $150,000, using his home equity line of credit at the WaMu bank, and to purchase WaMu stock. “William Jacobson, a Cornell University law professor who runs a clinic that helps brokerage customers with arbitration cases, says the single, large, risky investment described in Charles' case ‘is on its face almost unsuitable for anyone. As natural as the reaction may be to say, “How could this investor have done this,” nonetheless it's the obligation of the broker not to make the recommendation.’ Jacobson, too, asks whether extra incentives might have been prompted the WaMu broker to suggest such a dubious investment in WaMu stock.”

The New York Observer recently quoted Michael Dorf in an article about New York Governor Patterson’s unhappiness with the slate of candidates proposed by the Commission on Judicial Nomination, which released the names of seven men to fill the seat of retiring Chief Judge Judith Kaye of the Court of Appeals. " ‘The constitutional provision is clear: that Governor Paterson must choose someone from the list,’ said Michael Dorf, a professor at Cornell Law School. ‘I am not aware of any provision either in the New York constitution or in the implementing statute that governs what happens in the event that the governor either requests a new list or the legislature continually rejects the governor's nominees from the list. … This ambiguity will almost certainly be resolved by the political process rather than in court,’ he said. ‘It's not clear who sues whom for what.’ Or in what court. It's enough to make your head spin.”

November 2008

An article in the New York Times discussed a footnote written by Justice Souter that questions the validity of academic research funded by parties with a vested interest in the outcome. The article goes on to mention a CELS conference topic on “Exxon Shipping, Footnote 17” and quotes Professors Rachlinski and Eisenberg. “ ‘The opinion reads like a bad joke,’ said Jeffrey J. Rachlinski, a law professor at Cornell. ‘They say they know of no study showing punitive damages are orderly in any way, and yet they cite’ a study by Theodore Eisenberg, a prominent empirical legal studies scholar at Cornell, ‘showing punitive damages are pretty orderly.’ Professor Eisenberg struggled to stay respectful about the court’s approach to his work, saying he had been flattered to be cited at all. He finally settled on this phrase: ‘I believe the court went seriously astray’ in concluding that his work supported a reduced award.”

Michael Dorf was quoted in a Legal Times article by Tony Mauro on Bush’s “conservative high court.” " 'If Bush had cloned Scalia twice, he still could not have moved the Court to the right of Kennedy,' [says] Cornell Law School's Michael Dorf, a former Kennedy clerk. Kennedy replaced O'Connor as the swing vote, and when he tacked to the left, so did the Court.”

The Battalion at Texas A&M quoted Michael Dorf in an article on not voting in the election. The article suggests that you should not vote if you are uninformed or don’t care about the outcome. "You have a statutory right to vote, a moral right to vote, but it's not in the Constitution," said Michael C. Dorf, professor of law at Cornell Law School. "There's nothing wrong with getting out the vote, it's a civic duty."

October 2008

A USA Today article quoted Michael Dorf on the future of the U.S. Supreme Court. The article discusses how the next president may influence Court decisions by whom he appoints to the Court. “ ‘Roe v. Wade is at the top of the list’ of what could be immediately at stake in court appointments, Cornell University law professor Michael Dorf says. He emphasizes that the bench would change more dramatically if a McCain pick succeeded a liberal. Five justices—a bare majority that includes the four liberals—have endorsed the 1973 landmark ruling on abortion.”

CNN Money.com quoted William Jacobson in an article about the Financial Industry Regulatory Authority (FINRA) reading agreements in principle with three securities firms over the sale of auction-rate securities. “William Jacobson, director of the securities litigation clinic at Cornell Law School in Ithaca, N.Y, told Dow Jones Newswires on Thursday that regulators, in general, have taken a ‘good lead’ in getting firms to make good on auction rate securities. ‘Strong activity by regulators should enable many investors to recoup their money,’ he said.”

The Boston Globe quoted a blog entry by Eduardo Peñavler as part of an article on Catholics, abortion, and Obama. “Over at dotCommonweal, Eduardo Peñalver, an associate professor at Cornell Law School, responds. An excerpt: ‘From the point of view of a pro-life person who (based on his own prudential reasoning) views the war as unjust, voting for someone who, although he favors abortion rights, promises to end the war as soon as possible can be a reasonable position to take, even if that pro-life voter accepts everything Weigel says about the impermissibility (at all times and all places) of laws permitting abortion.’ “

The Women News Network has an article on harassment of women in Cairo that quotes a Harvard Law Review article by Cynthia Bowman. “ ‘Street Harassment and the Informal Ghettoization of Women,’ by Cynthia Grant Bowman, Cornell Law School professor and Gender Studies professor from Northwestern University, outlines the need for specific criminal and civil laws to protect women in public. Street harassment globally has one insidious and common denominator, the use of words that include extreme sexual innuendo and profanity. ‘Fighting words statutes seem to offer an appropriate remedy for many kind of street harassment,’ says Professor Bowman in her report. ‘They encompass personal, face-to-face insults that cannot possibly be described as political discourse; they apply to ‘threatening, profane or obscene revilings’; and they turn upon the reaction of the hearer rather than upon the intent of the speaker or harasser.’ “

NewsRx Science and Marketing Weekly News reported on a study by Theodore Eisenberg and Martin T. Wells regarding mismarketing of Lipitor to women. “[A] new study appearing in the Journal of Empirical Legal Studies was unable to find high quality clinical evidence documenting reduced heart attack risk for women in a primary prevention context. Furthermore, advertising omits label information relevant to women. Theodore Eisenberg of Cornell Law School and Martin T. Wells of Cornell University assembled studies for a meta analysis of drugs' effects on cardiovascular risk, taking into account all relevant studies reporting risks for both men and women. Not one of the studies that included women with a mixture of risk factors for heart attacks provided statistically significant support for prescribing Lipitor or other statins to protect against cardiovascular problems. … Lipitor's advertising repeatedly fails to report that clinical trials were statistically significant for men but not for women.”

The National Law Journal quoted William Jacobson in an article about Clinics, like the Securities Clinic at the Law School, and how the recent financial crisis is increasing the number of claims from small investors. “Cornell University's Securities Law Clinic began in January with a mix of 2nd and 3rd year law students. It provides a mix of help for small investors, public education programs and public commentary on rule change proposals by the Securities & Exchange Commission and Financial Industry Regulatory Authority (FINRA). ‘We have filed a dozen comment letters on rule proposals, including FINRA arbitration rule proposals,’ according to William Jacobson, director of the Securities Law Clinic. ‘We've been very, very busy in just the two semesters of operation,’ he said.”

Stephen W. Yale-Loehr was quoted in a Los Angeles Daily Journal article that discusses wide disparities in the rates at which immigration judges grant asylum. “The GOA (U.S. Government Accountability Office) report found that after 2002, the board's backlog decreased, along with the number of decisions favoring asylum seekers. ‘The report shows that after the streamlining, the percentage of people granted asylum dropped precipitously,’ said Stephen Yale-Loehr, who teaches immigration law at Cornell Law School. ‘It shows that procedure is just as important as substance,’ Yale-Loehr said. ‘These procedural changes were intended to simply make the process faster. However, they created a substantive negative impact on legitimate asylum seekers fleeing persecution.’ “

The New York Times quoted Theodore Eisenberg in an article discussing how companies are unlikely to use arbitration with each other, though it is frequently the only option for consumers in dispute with a corporation. The article reverences a study by Professor Eisenberg, Geoffrey Miller of NY University, and Emily Sherwin. “ ‘I believe they’re really using arbitration as a way of avoiding class action litigation,’ said Theodore Eisenberg, a law professor at Cornell. Because it is not worth it to a single upset consumer to sue a big company, he said, ‘the only thing those companies fear is your having a plaintiffs’ lawyer aggregate you and people like you into a class action.’ Arbitration provisions are a controversial topic, although it is fair to say they are getting less attention right now in light of the current financial turmoil. But legislation limiting their use in nursing home contracts is working its way through Congress and on Monday, the Supreme Court will hear arguments in a case about the enforceability of arbitration agreements. The findings by Professor Eisenberg, whose co-authors on the most recent study were Geoffrey P. Miller of New York University School of Law and Emily Sherwin of Cornell Law School, might prove provocative. Their study, which was described in an article this summer in the University of Michigan Journal of Law Reform, included contracts by 21 different telecommunications and financial services companies.”

Michael Dorf was quoted in a New York Times article on political campaigns running ads about possible Court nominees by their opponents. “The next president is expected to have at least one nomination for the Supreme Court and as many as three in his four-year term. ‘McCain is a social conservative, and he's given every indication that his appointees would be conservative, especially since that's the traditional way to repay the Republican base for helping elect you,’ said Michael Dorf, a professor at Cornell Law School and a former clerk for Justice Anthony M. Kennedy. ‘Obama's whole message, meanwhile, is about uniting people and listening to the other side. And he is close to a number of core centrist Democratic thinkers about the court, so it's likely that he would pick people who are fairly centrist.' “

September 2008

An article in the New York Times, “Who Owns the Law?” by Noam Cohen, quotes Peter Martin in an article about claims of copyright for the accouterments surrounding government codes. While the laws themselves are copyright free, the process for accessing and understanding them can be copyright. "Even some critics of the current system say they understand why copyright has infiltrated the basic codes of the government. Peter Martin, a law professor at Cornell who was a pioneer in making legal material available on the Internet, explained the dilemma. A company 'will say to some city, all your city council has to do is pump out ordinances, we’ll help you organize it and we’ll get to copyright it,' he said. 'That is part of the quid for our quo.' "

The Congressional Quarterly quoted testimony by Cyrus Mehri ’88, that referred to both Stewart J. Schwab and Kevin M. Clermont. Mr. Mehri’s testimony discussed key findings in an article by Dean Schwab and Professor Clermont regarding discrimination in the workplace and a “precipitous drop in employment cases since 1998.” “The seminal new study is "Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?" by Dean Stewart J. Schwab and Kevin M. Clermont, both professors at Cornell Law School. Harv. L. & Pol'y Rev. (forthcoming 2009). (Exhibit 2). Cornell Law School is at the epicenter of scholarship on empirical legal studies and is the home of the peer-reviewed Journal of Empirical Legal Studies.”

The Daily Record in Rochester, NY, quoted Associate Dean Richard D. Geiger in an article that questions the continuing importance of LSAT’s, following the University of Michigan Law School’s decision to stop making the LSAT a requirement for all applicants. “At Cornell Law School, a private university, Associate Dean Rick Geiger said he thought the University of Michigan Law School was making a good faith effort to attract more of its undergrads and in-state residents. He was uncertain whether Cornell might consider a similar program. ‘It's certainly got me scratching my head a little bit, because there certainly are students that, you just know based on their records, their recommendations - you know that even without the LSAT they're going to be a success at your school,’ said Geiger, associate dean for communications and enrollment. ‘It's appealing to me to be able to admit those people without going through the agony of the standardized test. After you have a certain amount of experience with recommenders and honors programs and the various disciplines, you develop the ability to make predictions ... about who will succeed and who won't. And that's all the LSAT is designed to do,’ Geiger said.”

Science Daily and other news publications have recently quoted Theodore Eisenberg and Martin T. Wells on their article that recently was published in the Journal of Empirical Legal Studies. In the article, Professors Eisenberg and Wells assembled studies of Lipitor’s effects on both men and women. Their meta analysis of the drug’s effects indicate that statins like Lipitor do not appear to help women. Furthermore, Pfizer’s advertising for Lipitor is misleading for women. Both Science Daily and Physorg.com report: “ ‘Our findings indicate that each year, reasonably healthy women spend billions of dollars on drugs in the hope of preventing heart attacks but that scientific evidence supporting their hope does not exist,’ the authors conclude.”

The National Law Journal quoted both Dean Stewart J. Schwab and Professor Kevin Clermont in an article about employees filing federal job discrimination suits. The quotes were from an article Dean Schwab and Professor Clermont wrote which is being published in the Harvard Law and Policy Review. “ ‘Today employment discrimination plaintiffs still must swim against a strong tide ¬ in the federal district court and on appeal,’ wrote Kevin Clermont and Stewart Schwab, Cornell University law professors. The current study follows up on a similar study they did five years ago. Both reports used statistics gathered from Administrative Office of the Courts. ... The most startling change since 2001 has been the sharp drop in federal employment discrimination suits, nearly 40%, the study reports. Clermont and Schwab call this a ‘breathtaking pace of change’ since their last report on employment discrimination case numbers. The Wisconsin Law Journal also picked up the story. That article went on to say: "The study, released on Sept. 18 by the American Constitution Society for Law and Policy, also suggested that because of the comparatively low success rate, fewer lawyers are willing to risk taking an employee’s case to the federal level."

The National Law Journal quoted Valerie Hans in an article on nonunanimous jury verdicts in serious criminal trials. The article suggests that a 1972 decision, Apodaca v. Oregon, has become an unconstitutional anachronism. “The Apodaca court, said Hans, had as very positive view of the way in which juries would persist in exploring every argument without an unanimity requirement. ‘But the fact is juries, like everyone, are affected by organizational and other constraints,’ Hans said. ‘The unanimous structure is the one that produces the most vigorous debate. Clearly, it gives those arguments against the majority a very strong platform.’ "

William Jacobson is quoted in a Dow Jones Newswires column by Suzanne Barlyn on the Financial Industry Regulatory Authority (FinRA). FinRA is proposing changes to the discovery phase of arbitration proceedings, marking the latest development in a debate over the fairness of the proceedings. “William A. Jacobson, director of the securities law clinic at Cornell Law School, says the proposal would require investors to produce information that may be irrelevant, particularly in cases involving a single trade. ‘To include [ this documentation] in every single case, regardless of the nature of the case is an intimidation factor - and even more pernicious because it turns the hearing into putting the customer on trial,’ he says. Jacobson says he's ‘fairly confident’ that the clinic will oppose the Finra proposal when the SEC comment period begins.”