Cornell Journal of Law and Public Policy最新文献

{"title":"Under-Propertied Persons","authors":"Marc Lane Roark","doi":"10.2139/SSRN.2918598","DOIUrl":"https://doi.org/10.2139/SSRN.2918598","url":null,"abstract":"Property shapes the way we talk about our communities and ourselves. It also, unintentionally, shapes the way we talk about the poor. Within property, the doctrine of waste reinforces notions of autonomy, privacy, and boundary-making for property owners, while leaving those without property searching for other ways to assert these self-defining protections. Likewise, nuisance assists owners’ participation in their communities by dictating when individuals must account for harms their property use causes to neighbors. The law, however, provides few legal remedies for poor persons who are harmed by owners’ sanctioned use of property. Through the language of ownership, property doctrines facilitate special benefits for those with property, while forcing those outside of property to seek other means to assert similar benefits. Owners -- landlords of gap rentals, public housing authorities, and cities -- often treat their poorest residents as problems to be managed rather than residents deserving autonomy and community. Housing units are destroyed, families are displaced, and homeless are forced further out of sight. The doctrines and rules that encourage these outcomes focus on the improper, the impaired, or the imperfect instead of facilitating discourse about how living environments promote human flourishing for these residents. In this way, our property system’s rules and language create a class of persons who are under-propertied, under-housed, and under-valued.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"27 1","pages":"1-64"},"PeriodicalIF":0.0,"publicationDate":"2017-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2918598","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46251488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"When Campus Sexual Misconduct Policies Violate Due Process Rights","authors":"Blair A. Baker","doi":"10.31228/osf.io/txy5h","DOIUrl":"https://doi.org/10.31228/osf.io/txy5h","url":null,"abstract":"Jamie and Alex, both equally intoxicated, have sex one night in Alex’s dorm room. After that evening, they exchange friendly text messages. A few months pass, and they stop talking when Alex begins to see someone new. Jamie files a formal claim with the university, alleging that the sex they had that night months ago was not consensual. The investigator, hired to handle just Title IX cases, believes Jamie’s version of the facts slightly more than Alex’s. That is, the investigator finds in favor of Jamie’s story by a preponderance of the evidence. And that university’s procedure does not provide for a real hearing before a neutral adjudicator. Alex is expelled.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"26 1","pages":"533"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640797","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Deferring for Justice: How Administrative Agencies Can Solve the Employment Dispute Quagmire by Endorsing an Improved Arbitration System","authors":"Zev J. Eigen, David Sherwyn","doi":"10.31228/osf.io/2ktm8","DOIUrl":"https://doi.org/10.31228/osf.io/2ktm8","url":null,"abstract":"Excerpt] When it comes to the issue of pre-dispute mandatory arbitration, the concept of attaining justice for all parties in a vacuum instead of in comparison to the fall back—the litigation and agency adjudication processes. In this Article, we address each of the components of arbitration, but in context to the alternative and thus, conclude that a fixed arbitration system will provide the type of justice unavailable in the current system.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"7 1","pages":"217"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69638630","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Law in the Work of Felix Gonzales-Torres","authors":"E. Peñalver, Sergio Andrés Muñoz Sarmiento","doi":"10.31228/osf.io/dr2nm","DOIUrl":"https://doi.org/10.31228/osf.io/dr2nm","url":null,"abstract":"Within contemporary art, it is well known that Félix GonzálezTorres created elegant, sparse and poetic art works. Through his use of diverse media—photography, drawing, and sculpture (created by using unusual materials such as candy, stacks of paper, or battery operated clocks) González-Torres’ merged the personal and the political; the conceptual and the aesthetic. These aspects of his work have been thoroughly explored by artists, scholars, and collectors alike. What observers have not examined nearly as fully are the many ways that Félix González-Torres’s art referenced, utilized and challenged legal tools and doctrines in part by complicating the notion and definition of the art object itself. By merging minimal-conceptual art strategies with legal devices, González-Torres’ art works upset and expand our understanding of what constitutes the art object, the ownership, exhibition and dissemination of art, and the public’s relationship to art and art institutions. Certain art historians are skeptical of conceptual artists’ use of law and legal instruments. For example, in his book, Conceptual Art and the Politics of Publicity, Alexander Alberro laments that Seth Siegelaub and Robert Projansky’s artists’ contract of 1971, better known as The Artist’s Reserved Rights Transfer and Sale Agreement, did nothing more than facilitate the commodification of ideas. It is quite possible that this skepticism and criticism is based on a superficial understanding of legal doctrines and philosophical jurisprudence. No stranger to the hermetic and the obtuse, the law does not lend itself to facile consumption and understanding of its historical-philosophical origins, let alone its practical applications, by other disciplines. Félix González-Torres counters this type of cursory approach. An avid reader of literature, art history and semiotic theory, González-Torres","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"26 1","pages":"449-457"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639837","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Explaining the absence of surgical procedure regulation.","authors":"Jonathan J Darrow","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Each year in the United States, surgeons perform approximately 64 million surgical procedures, ranging from tooth extraction to open heart surgery. Yet, notwithstanding the frequency of surgical procedures and their often critical importance to patient health, no state or federal agency either approves the use of new surgical procedures or directly regulates existing procedures. The absence of surgical procedure regulation differs from the regulation of new pharmaceutical products, which can be introduced into interstate commerce only after the Food and Drug Administration (FDA) has reviewed \"adequate and well-controlled [clinical] investigations\" and concluded the data from those studies sufficiently establish the drug's safety and efficacy. Surgical procedures, by contrast, are more often conveyed from professor to student, the result being that surgical approaches may vary considerably from one geographic region to another. Whether different techniques produce different outcomes is not always clear, in part because the absence of regulation means that evidence often has not been systematically generated or may be in a form not suitable for comparison. Commentators have noted the differing treatment that persists between surgery and pharmaceuticals and have offered a number of justifications. For example, they have suggested that the surgical profession should self-regulate, that excessive regulation could deter surgeries of unproven benefit even when the surgery may be in the best interest of the patient, and that surgical trials could disrupt the doctor-patient relationship, such as by emphasizing uncertainty in a context where patient trust is important. In the context of innovative (as opposed to established) surgical procedures, controlled trials might be disfavored due to concern that desperate patients might unwisely submit themselves to risky experimental treatments undertaken by overzealous researchers. When commentators advocate for increased surgical regulation, they generally limit their calls for reform to innovative surgical procedures. The absence of direct regulation, however, has implications for the quality of evidence available to support an optimal choice from among all of the alternatives in the surgeon's armamentarium, whether innovative or standard, and whether surgical or non-surgical. This Article first examines the current framework of indirect regulation surrounding surgical procedures and then offers potential explanations as to why surgical procedures themselves are not already subject to direct federal regulation. Finally, it considers possible contributions of increased surgical regulation, including the identification of evidence gaps, the generation or collection of evidence to fill those gaps, and the impact on surgeon decision-making and patient consent.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"27 1","pages":"189-206"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"35655443","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Redefining \"Medical Care.\"","authors":"Lauren R Roth","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>President Donald J. Trump has said he will repeal the Affordable Care Act (ACA) and replace it with health savings accounts (HSAs). Conservatives have long preferred individual accounts to meet social welfare needs instead of more traditional entitlement programs. The types of \"medical care\" that can be reimbursed through an HSA are listed in section 213(d) of the Internal Revenue Code (Code) and include expenses \"for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.\" In spite of the broad language, regulations and court interpretations have narrowed this definition substantially. It does not include the many social factors that determine health outcomes. Though the United States spends over seventeen percent of gross domestic product (GDP) on \"healthcare\", the country's focus on the traditional medicalized model of health results in overall population health that is far beneath the results of other countries that spend significantly less. Precision medicine is one exceptional way in which American healthcare has focused more on individuals instead of providing broad, one-size-fits-all medical care. The precision medicine movement calls for using the genetic code of individuals to both predict future illness and to target treatments for current illnesses. Yet the definition of \"medical care\" under the Code remains the same for all. My proposal for precision healthcare accounts involves two steps-- the first of which requires permitting physicians to write prescriptions for a broader range of goods and services. The social determinants of health are as important to health outcomes as are surgical procedures and drugs--or perhaps more so according to many population health studies. The second step requires agencies and courts to interpret what constitutes \"medical care\" under the Code differently depending on the taxpayer's income level. Childhood sports programs and payments for fruits and vegetables may be covered for those in the lower income brackets who could not otherwise afford these items and would not choose to spend scarce resources on them if they could. This all assumes that the government takes funds previously used to subsidize the purchase of health insurance under the ACA (or allocates new funds) and puts the funds in individual accounts so the poor or near poor have money to pay for these expenses. Section I of this Article will explore the current definition of medical care, which excludes the social determinants of health from \"healthcare\" spending. I then address how precision medicine has changed the types of services and treatments that it makes sense to reimburse for each individual. If efficacy can vary from person to person based on genetic code, then it also can vary depending on environment. There is an opportunity to not only vary the types of \"medical care\" that can be reimbursed or deducted within the traditional ran","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"27 1","pages":"65-106"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"35655439","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Public Experience/Private Authority","authors":"M. Buskirk","doi":"10.31228/osf.io/b9kza","DOIUrl":"https://doi.org/10.31228/osf.io/b9kza","url":null,"abstract":"“A beam on its end is not the same thing as the same beam on its side,” wrote Robert Morris in his 1966 Notes on Sculpture, Part II, succinctly articulating the degree to which, in the context of minimalism, the identity of a work does not reside in a self-contained physical form, and is instead deflected outward to the relationship established between object and surrounding space.1 It also happens that Morris was not necessarily concerned about whether the simple geometric shapes he created during the mid-1960s as part of his exploration of the viewer’s spatial and temporal experience maintained a continuous physical existence. To the extent that the work could be disassembled and built again as needed (the same configuration, but different plywood and gray paint), this alternate way in which the same work might not be the same links his profoundly physical expression with a form of dematerialization more often associated with conceptual art. There is an obvious debt to minimalism in the ways that Félix González-Torres’s work occupies the environment traversed by the viewer— with the stacks of paper and candy sitting directly on the floor, or the interplay between work and setting for the light strings and bead curtains. Yet it is equally clear that many of González-Torres’s pieces can vary quite dramatically and still be understood as the same work of art. In addition to the decisions made by curators and collectors for each initial installation, there are ongoing changes to the candy arrangements and paper stacks as a result of viewer interaction. Public participation is an essential element, particularly in relation to the invitation to pick up a wrapped sweet or a sheet of paper. Even so, the work is also intensely private with respect to the bond established between artist and owner via","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"26 1","pages":"469"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639715","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Social Security Is Fair to All Generations: Demystifying the Trust Fund, Solvency, and the Promise to Younger Americans.","authors":"Neil H Buchanan","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The Social Security system has come under attack for having illegitimately transferred wealth from younger generations to the Baby Boom\u0000generation. This attack is unfounded, because it fails to understand how the system was altered in order to force the Baby Boomers to finance\u0000their own benefits in retirement. Any challenges that Social Security now faces are not caused by the pay-as-you-go structure of the system but by\u0000Baby Boomers' other policy errors, especially the emergence of extreme economic inequality since 1980. Attempting to fix the wrong problem all\u0000but guarantees a solution that will make matters worse. Generational justice and distributive justice go hand in hand.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"27 2","pages":"237-300"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"35867935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An Examination of the Coherence of Fourth Amendment Jurisprudence","authors":"N. Kahn-Fogel","doi":"10.2139/SSRN.2830957","DOIUrl":"https://doi.org/10.2139/SSRN.2830957","url":null,"abstract":"For decades, scholars have routinely attacked the Supreme Court’s Fourth Amendment jurisprudence as an incoherent mess, impossible for lower courts to follow. These scholars have based their claims almost entirely on qualitative analysis of the Court’s opinions. This article presents the first systematic evaluation of the consensus view of Fourth Amendment law as incoherent. The primary method I use to evaluate the coherence of the body of law is an assessment of lower court performance on Fourth Amendment issues the Supreme Court would later resolve. Because the Supreme Court’s agreement with lower courts likely reflects, at least in part, the clarity of the Supreme Court’s previous pronouncements, a high rate of agreement between lower courts and the Supreme Court would tend to suggest the coherence of the field. I examine lower court decisions dealing with issues the Supreme Court subsequently addressed over the course of twenty Supreme Court terms. Because Supreme Court cases tend to deal with the most difficult, divisive issues, I also compare the frequency with which the Court has felt compelled to review Fourth Amendment questions to the rate at which the Court has dealt with other important constitutional issues.In addition to tracking the performance of lower courts, I track variables that might impact the likelihood of lower courts reaching “right” answers to Fourth Amendment questions. Because the process the Court uses to resolve a case gives clues about the kind of guidance the Court has previously provided on an issue, I account for whether the Supreme Court used open-ended balancing or a more constrained form of analogical reasoning from precedent to resolve each case in the data set. I also assess whether the directive the Court issued for each case took the form of a bright-line rule or an open-ended standard. Finally, because several scholars have recommended reference to positive law as a means of clarifying Fourth Amendment law, I evaluate the Court’s reliance on positive law to resolve Fourth Amendment questions during the twenty-year period.Ultimately, the results show that lower courts have reached the “right” answers to Fourth Amendment questions about as often as lower courts have reached the “right” answers to all questions the Supreme Court later reviews. Furthermore, the Court has not felt compelled to resolve Fourth Amendment questions at a rate that seems disproportionate to other important constitutional matters. These data point toward the plausible conclusion that Fourth Amendment law is not particularly incoherent, as compared with other areas of law. Examination of the Court’s use of positive law reveals that the Court has, for the most part, not relied on positive law in ways likely to enhance significantly the coherence of Fourth Amendment law. Thus, a more principled approach to using positive law to resolve Fourth Amendment questions might increase the coherence of the field. Finally, analysis of the data su","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"26 1","pages":"275"},"PeriodicalIF":0.0,"publicationDate":"2016-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68365617","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Streamlining Justice: How Online Courts Can Resolve the Challenges of Pro Se Litigation","authors":"Ayelet Sela","doi":"10.31228/osf.io/dumsq","DOIUrl":"https://doi.org/10.31228/osf.io/dumsq","url":null,"abstract":"The tide of pro se litigation in the American justice system imposes significant constraints on self-represented litigants’ (SRLs) access to justice and courts’ ability to administer justice. Mitigating the challenges requires a systemic institutional and procedural reform. Advancing this approach, the Article proposes that online courts would alleviate many of the challenges associated with pro se litigation, and puts this proposition to an empirical test. Specifically, the article introduces a model for a Judicial Online Dispute Resolution (JODR) system for pro se litigation, and reports the findings of a study testing its effect on SRLs’ procedural justice experiences. \u0000Section I describes the realities of pro se litigation in the United States; the unique characteristics and challenges associated with it from the perspective of both SRLs and courts and the measures employed to address them. Section II introduces the field of ODR and reviews key JODR implementations. Section III proposes a framework for a JODR system for pro se litigation, focusing on non-prisoner civil and administrative proceedings between government agencies and self-represented individuals—whether in court or administrative trial-like hearings. Section IV reports the results of an experiment comparing the effect of JODR system designs that rely on asynchronous online text and video communication on SRLs’ procedural justice experiences. Its two main findings are a) that the judicial officer’s (judge) medium of communication has a consistent main effect on SRLs’ procedural experiences (regardless of whether SRLs used text or video communications); and b) that a system design whereby the judicial officer (judge) communicates via video messages and the SRL communicates via text messages is advantageous in terms of SRLs’ procedural justice experiences compared to both the prevalent ODR system design of two-way text communication as well as the theoretically celebrated two-way video communication. Finally, section V concludes the article, discussing implications and directions for future research. \u0000“Held to appropriate process and technology design standards, online judicial dispute resolution systems can improve the quality of SRLs’ participation, their procedural justice experiences, and the overall fairness of the process. Technology is at our fingertips; justice may very well be too.”","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"26 1","pages":"331"},"PeriodicalIF":0.0,"publicationDate":"2016-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639851","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}