Cornell Law Review最新文献

{"title":"Plaintiphobia in the Supreme Court","authors":"K. Clermont, T. Eisenberg","doi":"10.2139/SSRN.2347360","DOIUrl":"https://doi.org/10.2139/SSRN.2347360","url":null,"abstract":"Through the years debate has raged over whether the Supreme Court’s summary judgment trilogy and Twombly-Iqbal pleading decisions had significant practical effects. To address that question, this article introduces a new empirical measure: the difference between the pretrial-adjudication judgment rates for the defendant and for the plaintiff. Plotting that rates’ difference over time suggests that the cases on summary judgment and pleading, which were far and away the two most major alterations of pretrial disposition during the last three decades, had a markedly anti-plaintiff impact.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"100 1","pages":"193"},"PeriodicalIF":2.5,"publicationDate":"2013-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68127790","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Carrots and Sticks: How VCs Induce Entrepreneurial Teams to Sell Startups","authors":"Brian J. Broughman, J. Fried","doi":"10.2139/SSRN.2221033","DOIUrl":"https://doi.org/10.2139/SSRN.2221033","url":null,"abstract":"Venture capitalists (VCs) usually exit their investments in a startup via a trade sale. But the entrepreneurial team – the startup’s founder, other executives, and common shareholders – may resist a trade sale. Such resistance is likely to be particularly intense when the sale price is low relative to VCs’ liquidation preferences. Using a hand-collected dataset of Silicon Valley firms, we investigate how VCs overcome such resistance. We find, in our sample, that VCs give bribes (carrots) to the entrepreneurial team in 45% of trade sales; in these sales, carrots total an average of 9% of deal value. The overt use of coercive tools (sticks) occurs, but only rarely. Our study sheds light on important but underexplored aspects of corporate governance in VC-backed startups and the venture capital ecosystem.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"98 1","pages":"1319"},"PeriodicalIF":2.5,"publicationDate":"2013-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68001948","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Contrition in the Courtroom: Do Apologies Affect Adjudication?","authors":"J. Rachlinski, C. Guthrie, Andrew J. Wistrich","doi":"10.2139/SSRN.2295033","DOIUrl":"https://doi.org/10.2139/SSRN.2295033","url":null,"abstract":"Apologies usually help to repair social relationships and appease aggrieved parties. Previous research has demonstrated that in legal settings, apologies influence how litigants and juries evaluate both civil and criminal defendants. Judges, however, routinely encounter apologies offered for instrumental reasons, such as to reduce a civil damage award or fine, or to shorten a criminal sentence. Frequent exposure to insincere apologies might make judges suspicious of or impervious to apologies. In a series of experimental studies with judges as research participants, we find that in some criminal settings, apologies can induce judges to be more lenient, but overall, apologizing to a judge is often unhelpful and can even be harmful.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"98 1","pages":"1189"},"PeriodicalIF":2.5,"publicationDate":"2013-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2295033","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68075448","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Private Environmental Governance","authors":"M. Vandenbergh","doi":"10.4337/9781783478408.II.19","DOIUrl":"https://doi.org/10.4337/9781783478408.II.19","url":null,"abstract":"Environmental law has quietly transformed from a positive law field deeply rooted in administrative law to one that is also heavily rooted in private law and private governance. After two decades (1970-1990) of remarkable activity, more than two decades have now passed without a major federal environmental statute (1991-2012). Whether the appropriate next step is expansion or contraction, reforms to the federal statutory framework have stalled. Federal regulatory activity and state and local measures have filled some of the gap, but private governance efforts – the pursuit of public ends through private standards, monitoring, enforcement, and dispute resolution – now play an important role. Corporations report that their toxics use is regulated more by private supply chain contract requirements than the federal toxics statute. The fate of 14% of the temperate forests and 7% of the fisheries around the world is in the hands of private certification systems. More money is spent on private environmental inspections than on the entire federal environmental enforcement office. The emergence of private governance is hiding in plain view because the conceptual model by which environmental law is viewed and the metrics by which legal activity is measured do not square easily with private governance. Environmental preferences are expressed in private market decisions, not through voting or lobbying. Standard-setting, enforcement, and dispute resolution occur through private actions and institutions, not legislatures, agencies and courts. This Article demonstrates the value of conceptualizing seemingly disparate private activities as a discrete new model of environmental governance. Viewing private environmental governance in this way provides new insights about collective action problems, re-frames the standards used for environmental instrument choice, and suggests new actors and actions to address environmental problems.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"99 1","pages":"129"},"PeriodicalIF":2.5,"publicationDate":"2013-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70705498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The English Versus the American Rule on Attorney Fees: An Empirical Study of Public Company Contracts","authors":"T. Eisenberg, G. Miller","doi":"10.5040/9781472561428.ch-015","DOIUrl":"https://doi.org/10.5040/9781472561428.ch-015","url":null,"abstract":"The American rule for attorney fees requires each party to pay its attorney, win or lose; the English rule (applicable in most of the world) requires the losing party to pay the winner’s reasonable attorney fees. We study fee clauses in 2,347 contracts in large corporations’ public securities filings. Because contracting parties can opt out of the default American rule at low cost, we expected opting out to predominate if the English rule more efficiently compensates counsel. Parties in fact contract out of the American rule in 60% of contracts, which far exceeds the rate of contracting out of other default dispute-resolution rules—those allowing for access to courts (avoidable through ex ante agreement to arbitrate) and the right to a jury trial. Thus, parties often find that the American rule is not optimal. Still, parties choose the American rule about as often as the English rule; the remaining fee clauses they choose are intermediate forms such as “one-way” fee shifts that require only one of the parties to pay the other’s fees. Certain factors help explain the observed pattern of rules through their association with acceptance of the American rule. These factors include specific contract types, the presence of a non-U.S. party, the absence of arbitration clauses and jury-trial waivers, selection of New York law, and a likely long-term relation between the parties. Conversely, factors such as state laws that impose symmetric fee responsibility and an increasing degree of contract standardization are negatively associated with acceptance of the American rule. More generally, our findings suggest that the American rule is not optimal in many large commercial contracts and that sophisticated parties often reject default rules sufficiently important to them. Theoretical models should resist the assumption that one fee rule is most efficient in all contexts, and models should account for real-world factors associated with fee clauses.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"98 1","pages":"327"},"PeriodicalIF":2.5,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70514205","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judging sex.","authors":"Deborah Tuerkheimer","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Article explores the curious jurisprudence of sexual patterns and how it constructs female sexuality. In modern rape law, the \"unchaste character inference\" expressly prohibited by the rape shield endures. Though the boundaries that circumscribe appropriate sexual conduct have shifted over time, courts persist in making normative judgments about women's sexuality. Cloaked in the legitimizing rhetoric of sexual patterns, retrograde notions of deviancy are substituting for rational deliberation on the question of consent. As rape shield law enters its fourth decade, it continues to defy reason, both in application and in theory. The proposed evidentiary approach promises to improve judicial decision making in rape cases, while reorienting the law toward the female sexual subject and the contingency of her consent.</p>","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"97 6","pages":"1461-504"},"PeriodicalIF":2.5,"publicationDate":"2012-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"30982680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Circumvention tourism.","authors":"Glenn Cohen","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Under what circumstances should a citizen be able to avoid the penalties set by the citizen's home country's criminal law by going abroad to engage in the same activity where it is not criminally prohibited? Should we view the ability to engage in prohibited activities by traveling outside of the nation state as a way of accommodating cultural or political differences within our polity? These are general questions regarding the power and theory of extraterritorial application of domestic criminal law. In this Article, I examine the issues through a close exploration of one setting that urgently presents them: medical tourism. Medical tourism is a term used to describe the travel of patients who are citizens and residents of one country, the \"home country,\" to another country, the \"destination country,\" for medical treatment. This Article is the first to comprehensively examine a subcategory of medical tourism that I call \"circumvention tourism,\" which involves patients who travel abroad for services that are legal in the patient's destination country but illegal in the patient's home country--that is, travel to circumvent domestic prohibitions on accessing certain medical services. The four examples of this phenomenon that I dwell on are circumvention medical tourism for female genital cutting (FGC), abortion, reproductive technology usage, and assisted suicide. I will briefly discuss the \"can\" question: assuming that a domestic prohibition on access to one of these services is lawful, as a matter of international law, is the home country forbidden, permitted, or mandated to extend its existing criminal prohibition extraterritorially to home country citizens who travel abroad to circumvent the home country's prohibition? Most of the Article, though, is devoted to the \"ought\" question: assuming that the domestic prohibition is viewed as normatively well-grounded, under what circumstances should the home country extend its existing criminal prohibition extraterritorially to its citizens who travel abroad to circumvent the prohibition? I show that, contrary to much of current practice, in most instances, home countries should seek to extend extraterritorially their criminal prohibitions on FGC, abortion, assisted suicide, and, to a lesser extent, reproductive technology use to their citizens who travel abroad to circumvent the prohibition. I also discuss the ways in which my analysis of these prohibitions can serve as scaffolding for a more general theory of circumvention tourism.</p>","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"97 6","pages":"1309-98"},"PeriodicalIF":2.5,"publicationDate":"2012-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"30982679","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Unexonerated: Factually Innocent Defendants Who Plead Guilty","authors":"John H. Blume, Rebecca K. Helm","doi":"10.2139/SSRN.2103787","DOIUrl":"https://doi.org/10.2139/SSRN.2103787","url":null,"abstract":"Several recent high profile cases, including the case of the West Memphis Three, have revealed (again), that factually innocent defendants do plead guilty. And, more disturbingly in many of the cases, the defendant’s innocence is known, or at least highly suspected at the time the plea is entered. Innocent defendants plead guilty most often, but not always, in two sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; and second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their immediate or imminent release. There are three primary contributing factors leading a criminal justice system where significant numbers of innocent defendants plead guilty to crimes they did not commit. The first is the perceived need that all defendants must plead. The second is the current draconian sentencing regime for criminal offenses. And, the final contributing factor is that plea bargaining is, for the most part, an unregulated industry. This article discusses cases in which innocent defendants plead guilty to obtain their release, thus joining the “unexonerated” and then propose several options the criminal justice system should embrace to avoid, or at least ameliorate the plight of innocent defendants who plead guilty.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"100 1","pages":"157"},"PeriodicalIF":2.5,"publicationDate":"2012-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67912796","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Pain as a fact and heuristic: how pain neuroimaging illuminates moral dimensions of law.","authors":"Amanda C Pustilnik","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. Yet, for all the work done by pain as a term in legal texts and practice, it has a confounding lack of external verifiability. Now, neuroimaging is rendering pain and myriad other subjective states at least partly ascertainable. This emerging ability to ascertain and quantify subjective states is prompting a \"hedonic\" or a \"subjectivist\" turn in legal scholarship, which has sparked a vigorous debate as to whether the quantification of subjective states might affect legal theory and practice. Subjectivists contend that much values-talk in law has been a necessary but poor substitute for quantitative determinations of subjective states--determinations that will be possible in the law's \"experiential future.\" This Article argues the converse: that pain discourse in law frequently is a heuristic for values. Drawing on interviews and laboratory visits with neuroimaging researchers, this Article shows current and in-principle limitations of pain quantification through neuroimaging. It then presents case studies on torture-murder, torture, the death penalty, and abortion to show the largely heuristic role of pain discourse in law. Introducing the theory of \"embodied morality,\" the Article describes how moral conceptions of rights and duties are informed by human physicality and constrained by the limits of empathic identification. Pain neuroimaging helps reveal this dual factual and heuristic nature of pain in the law, and thus itself points to the translational work required for neuroimaging to influence, much less transform, legal practice and doctrine.</p>","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"97 4","pages":"801-48"},"PeriodicalIF":2.5,"publicationDate":"2012-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"30735220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform","authors":"Kristin N. Henning","doi":"10.2139/SSRN.2128857","DOIUrl":"https://doi.org/10.2139/SSRN.2128857","url":null,"abstract":"There is little dispute that racial disparities pervade the contemporary American juvenile justice system. The persistent over representation of youth of color in the system suggests that scientifically supported notions of diminished culpability of youth are not applied consistently across races. Drawing from recent studies on implicit bias and the impact of race on perceptions of adolescent culpability, Professor Henning contends that contemporary narratives portraying black and Hispanic youth as dangerous and irredeemable lead prosecutors to disproportionately reject youth as a mitigating factor for their behavior. Although racial disparities begin at arrest and persist through every stage of the juvenile justice process, this Article focuses specifically on the unique opportunity and obligation that prosecutors have to address those disparities at the charging phase of the juvenile case.Professor Henning implores juvenile prosecutors to resist external pressures to respond punitively and symbolically to exaggerated perceptions of threat by youth of color and envisions a path toward structured decision making at the charging phase that is informed by research in adolescent development, challenges distorted notions of race and maturity, and holds prosecutors accountable for equitable decision making across race. While fully embracing legitimate prosecutorial concerns about victims’ rights and public safety, Professor Henning frames the charging decision as one requiring fairness, equity, and efficacy. Fairness requires that prosecutors evaluate juvenile culpability in light of the now well-documented features of adolescent offending. Equity demands an impartial application of the developmental research to all youth, regardless of race and socioeconomic status. Efficacy asks prosecutors to rely on scientifically validated best practices for ensuring positive youth development and achieving public safety. Thus, even when neighborhood effects and social structures produce opportunities for more serious and more frequent crime among youth of color, prosecutors have a duty to evaluate that behavior in light of the current developmental research and respond to that conduct with the same developmentally appropriate options that are so often available to white youth.As the gatekeepers of juvenile court jurisdiction, prosecutors should work with developmental experts, school officials, and other community representatives to develop and publish juvenile charging standards that reflect these goals. To increase transparency and encourage buy-in from the public, Professor Henning recommends that prosecutors track charging decisions according to race and geographic neighborhood and provide community representatives and other stakeholders with an opportunity to review those decisions for disparate impact. Finally, to ensure that communities of color are able to respond to adolescent offending without state intervention, Professor Henning contemplates a more e","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"98 1","pages":"383-461"},"PeriodicalIF":2.5,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2128857","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67930203","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}