bluuebunny/crossref_metadata_2025 huggingface dataset:
Why Congress Cannot Unilaterally Repeal Puerto Rico's Constitution
Authors: McCall Adam W.
Published: July 2018

102 Cornell L. Rev. 1367 (2017)Reckoning with the constitutional status of the United States’ overseas territories has been a tricky business for the Supreme Court. Saddled with anachronistic doctrines left over from the turn of the twentieth century, the Court has attempted to avoid the significant constitutional problems raised by the vestiges of colonialism. These problems are particularly acute in regard to Puerto Rico, an island of 3.4 million people that is formally organized as a commonwealth of the United States with its own democratically elected government. Unsurprisingly, the Court again dodged the issue of deciding Puerto Rico’s constitutional status in two cases in the October 2015 term, Puerto Rico v. Sanchez Valle and Puerto Rico v. Franklin California Tax-Free Trust. The Court’s failure to clarify Puerto Rico’s status in those cases has further contributed to the ongoing uncertainty caused by Puerto Rico’s shaky economy. Basic questions about the nature of Puerto Rico’s authority to govern itself remain unanswered.
Justice Thomas's Kelo Dissent: The Perilous and Political Nature of Public Purpose
Authors: Brown Carol N.
Published: July 2018

This Essay submits that the arguments that Justice Thomas constructed in his dissent were appropriately focused on the inherently political nature of the Fifth Amendment's Public Use Clause. Unlike the majority, Justice Thomas recognized that when the Supreme Court broadly interprets the public use restriction of the Fifth Amendment's Takings Clause, and at the same time defers to political actors in this arena, it fundamentally abdicates its constitutional responsibility. By deferring to political actors in this area, the Court in Kelo fundamentally abdicated its responsibility and also adopted a majoritarian doctrinal approach. Further, the Court conflated political ends with constitutional purposes. And it is for this crucial reason that the Fifth Amendment aims to insert a check on majoritarian power through express limitations on government's exercise of eminent domain as expressed in the Takings Clause of the Fifth Amendment.
The Compensation Myth and U.C.C. Section 2-713
Authors: Frisch David
Published: July 2018

This article seeks to bring greater discipline to the analysis of market damages by probing two basic assumptions that are routinely made in discussions of section 2-713: (1) that overcompensation concerns justify judicial interference with the buyer's choice of remedy; and (2) that the relevant market price, in all cases, is the market price that the aggrieved buyer would be required to pay if she wished to make a substitute purchase of goods elsewhere.
Warrantless Vehicle Searches and the Fourth Amendment: The Burger Court Attacks the Exclusionary Rule
Authors: Clymer Steven D.
Published: July 2018

68 Cornell Law Review 105 (1982)
In the Beginning There Was None: Supreme Court Review of State Criminal Prosecutions
Authors: Walsh Kevin C.
Published: July 2018

This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed with the Act. It provided for Supreme Court appellate review of certain state court decisions denying the federal-law-based rights of certain litigants.
Scholars, Teachers, and Servants
Authors: Grimmelmann James
Published: July 2018

I would like to play a time-worn tune—an academic’s apology for academia—in a fresh way. The conventional defenses of research are not wrong, but their ac-cent falls on the wrong beat. We place too much emphasis on writing and not enough on reading, and in so doing we artificially isolate scholarship from teaching and service. Scholarly publication is important, yes, but it is not not the essence of what we do. So: take it from the top, once more with feeling.
The Relevance of Results Generated by Human Indexing and Computer Algorithms: A Study of West’s Headnotes and Key Numbers and LexisNexis’s Headnotes and Topics
Authors: Nevelow Mart Susan
Published: July 2018

This article begins the investigation into the different ways results are generatedin West’s “Custom Digest” and in LexisNexis’s “Search by Topic or Headnote” andby KeyCite and Shepard’s. The author took ten pairs of matching headnotes fromimportant federal and California cases and reviewed the results sets generated byeach classification and citator system for relevance. The differences in the results setsfor classification systems and for citator systems raise interesting issues about theefficiency and comprehensiveness of any one system, and the need to adjust researchstrategies accordingly.
Patterns of Information Law: Intellectual Property Done Right
Authors: Grimmelmann James
Published: July 2018

Patterns of Information Law is the coursepack I assembled for my fall 2016 intellectual property survey at Cornell Tech. (It draws heavily on materials I used in prior semesters at the University of Maryland and at New York Law School.) I am making it freely available under the Creative Commons Attribution 4.0 license for anyone who would like to adopt or adapt it.
Resisting the Allure of Better Rule of Law
Authors: Simson Gary J.
Published: July 2018

52 Arkansas Law Review 141 (1999)
Constitutional Borrowing
Authors: Tebbe Nelson , Tsai Robert
Published: July 2018

108 Michigan Law Review 459 (2010)Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated with liberty, on the one hand, and equality, on the other. We finish by discussing how attentiveness to borrowing may illuminate or improve prominent theories of constitutional lawmaking.
134,368 Unnamed Workers: Client-Centered Representation on Behalf of H-2A Agricultural Guestworkers
Authors: Beltran Briana
Published: July 2018

Forthcoming in: NYU Review of Law and Social Change Each year, tens of thousands of workers, mostly from Mexico and mostly men, enter the United States on temporary visas to labor in its agricultural fields. H-2A workers, as they are known, are the ultimate outsiders: contracted by a single employer for a specified period, they face dangerous labor and housing conditions, without the option of seeking other employment and with no other ties to or rights in the United States. Despite a robust regulatory scheme that mandates terms including their hourly wage and expenses their employer is required to cover, H-2A workers are frequently exploited, experiencing everything from wage theft to the extraction of unlawful recruitment fees. To compound the problem, the systems in place to redress these wrongs are woefully insufficient: government enforcement is weak, and H-2A workers’ ability to take direct action is undercut by factors such as their temporary and isolated presence in the United States and the intentional limitations on their rights and access to legal representation under federal law. Despite these constraints, there are examples of H-2A workers who have filed civil lawsuits against their employers. Having done so, they still encounter obstacles to their full participation in the process, due to the lack of familiarity with the U.S. legal system and the likelihood that the litigation will continue while they are in their home countries. In this article, I explore strategies for minimizing the disconnect between H-2A workers and the process of civil litigation, and consider the ways in which litigation itself can be an empowering process and a vehicle for amplifying worker voice. Using the frame of client-centered lawyering, and drawing on two recent case studies of community lawyering among low-wage immigrant workers, I discuss the methods that lawyers representing H-2A workers can employ during the various stages of a civil lawsuit in order to ensure that their clients are not again relegated to an outsider status. In particular, I focus on four “moments” in the life of a case: the decision to file a lawsuit, the drafting of the complaint, discovery, and trial. Moreover, I also consider how client voice can be amplified outside of the four corners of a lawsuit, and provide strategies for how to amplify worker voice while settling cases and discuss the downstream, indirect effects of litigation on H-2A worker empowerment. By putting these considerations into practice, I argue that litigation itself can serve as an empowering experience for H-2A workers and shed light on the abuses within the H-2A program more generally.
The Truth About Property Rules: Some Obstacles to the Economic Analysis of Remedies
Authors: Sherwin Emily
Published: July 2018

2 Washington University Jurisprudence Review 39 (2010)Property Rules, as famously described by Calabresi and Melamed, are remedial rules that place a prohibitively high penalty on violations of rights. This essay examines two aspects of property rules. In each case, the form of the rule is critically important. The first question addressed is the capacity of property rules to affect behavior that takes place outside the context of litigation. Most economic analysis assumes that when a right is protected by a property rule, the property rule will guide private decisionmaking at the time of a contemplated violation, and possibly before that time. Yet, to have this effect, property rules (and liability rules) must be embodied in a set of determinate legal rules defining not only the penalty imposed on violation, but also the entitlements protected and the conditions on which the property-rule remedy is available. Property rules, in other words, must be rules.In fact, "true property rules" that meet this description are scarce. This casts some doubt on the predictions made in literature on the subject. Theory and doctrine may or may not be reconcilable, depending on the desirability and feasibility of determinate rules in the area of remedies.In existing law, most true property rules protect property rights. This leads to the second question addressed here: what relationship, if any, do property rules bear to property? After examining several theories others have proposed to explain the association between property rules and property rights, I suggest that property rules are connected to property in two ways. First, deterrent property rules ensure the continuity that makes property rights valuable to owners and to society. Second, once property rights are securely in place, the value they generate makes property rules a more efficient response to the possibility of unilateral taking. To achieve these results, however, both property rights and property rules must be implemented by general, determinate, and authoritative legal rules.
Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data that Congress Could Enact
Authors: Soghoian Christopher , Pell Stephanie K.
Published: July 2018

The use of location information by law enforcement agencies is common and becoming more so as technological improvements enable collection of more accurate, precise location data. The legal mystery surrounding the proper law enforcement access standard for prospective location data remains unsolved. This mystery, along with conflicting rulings over the appropriate law enforcement access standards for both prospective and historical location data, has created a messy, inconsistent legal landscape where even judges in the same district may require law enforcement to meet different standards to compel location data. As courts struggle with these intertwined technology, privacy, and legal issues, some judges are expressing concern over the scope of the harms, from specific and personal to general and social, presented by unfettered government collection and use of location data and how to respond to them. Judges have sought to communicate the scope and gravity of these concerns through direct references to Orwell’s dystopia in 1984, as well as suggestive allusions to the “panoptic effect” observed by Jeremy Bentham and his later interpreters like Michel Foucault. Some have gone on to suggest that privacy issues raised by law enforcement access to location data might be addressed more effectively by the legislature.This Article proposes a legislative model for law enforcement access standards and downstream privacy protections for location information. This proposal attempts to (1) articulate clear rules for courts to apply and law enforcement agents and industry to follow; and (2) strike a reasonable balance among the interests of law enforcement, privacy, and industry with the ultimate goal of improving the position of all concerned when measured against the current state of the law.
Climate Change Triage
Authors: Sachs Noah M.
Published: July 2018

Climate change is the first global triage crisis. It is caused by the overuse of a severely limited natural resource—the atmosphere’s capacity to absorb greenhouse gases—and millions of lives depend on how international law allocates this resource among nations.This Article is the first to explore solutions for climate change mitigation through the lens of triage ethics, drawing on law, philosophy, moral theory, and economics. The literature on triage ethics—developed in contexts such as battlefield trauma, organ donation, emergency medicine, and distribution of food and shelter—has direct implications for climate change policy and law, yet it has been overlooked by climate change scholars. The triage lens rules out climate policies—including the current emissions path—that will lead to catastrophic warming, and it puts options on the table that are marginalized in the current United Nations negotiations on a climate change agreement.This Article examines three allocation principles that could potentially apply in climate change triage—utilitarianism, egalitarianism, and a market-based distribution—and it concludes that egalitarianism is the preferable allocation principle from the standpoint of ethics and international law. This Article ends by exploring four major policy implications that emerge from viewing climate change through the lens of triage.
Mandatory Arbitration of Individual Employment Rights: The Yellow Dog Contract of the 1990s
Authors: Stone Katherine V.W.
Published: July 2018

73 Denver University Law Review 1017 (1996)
A market in control: non-tradable shares deals in companies listed at the SHZSE
Authors: Williams Rodman , Black Alissa
Published: July 2018

This paper analyses the market in the non-listed legal person (faren, hereafter LP) shares of companies listed on the Shenzhen Stock Exchange (SHZSE) during 1994-2002. It is comprised of an initial analysis of a data set made available by the Shenzhen Securities Settlement and Clearing Company (SSCC) on 840 non-tradable share transactions during 1984-2002. It explains how this new market operates, what entities are involved, the prices at which shares are transferred, and the extent to which control over listed firms changes via these sales.
Disease Management and Liability in the Human Genome Era
Authors: Palmer Larry I.
Published: July 2018

47 Villanova Law Review 1 (2002)The completion of a rough draft of the Human Genome presents both tremendous potential for improvements in health care delivery and challenges to providing appropriate incentives that will bring forth new treatments while protecting individuals and groups from genetic discrimination. As "genetics" becomes an integral part of health care delivery, there are no existing coherent legal doctrines for balancing the risks and benefits of this technological and scientific achievement. Developing a coherent legal approach to these risks and benefits requires a reexamination of the purposes of the liability doctrines that govern the management of disease processes. At the moment, a genetic approach to human disease primarily involves attempts at prevention - which means genetic screening of individuals, fetuses in utero, and embryos. This screening process requires the cooperation of population groups identified by genotype, or ethnic or social group. The nature of this cooperation or the "voluntariness" of the consent to donate tissue and other samples of DNA is now the subject of at least one lawsuit in which the plaintiffs claim that the physician/scientist should have disclosed his intention to patent the gene and screening test for a rare genetic disorder. In order to develop a framework to resolve this case and other liability claims in the Human Genome Era, this article analyzes and proposes a coherent theory of liability for mishaps. This theory is based on: 1) the difference between informed consent liability doctrines in research and clinical settings; 2) the relationship between the regulatory scheme for research and liability claims; and 3) the implications of the Nuremberg Code for determining the parameters of informed consent in research settings.
Mitigation Matters
Authors: Blume John H. , Stetler Russell
Published: July 2018

Mitigation matters. It works. It literally saves lives every day, often in cases in which a death sentence seems a foregone conclusion. But mitigation matters — it works — only if the capital defense team is committed both to conducting a comprehensive investigation of the client’s life and to developing and integrating the results of the investigation into a compelling, credible narrative for life. This commitment to uncovering and telling the client’s true story must be complete and unwavering. When it is, life sentences follow. When it is not, undeserved death sentences are imposed.
Testimony before the U.S. Senate Banking Committee: ‘Fostering Economic Growth: Midsized, Regional and Large Institution Perspective’
Authors: Omarova Saule T.
Published: July 2018

This written statement accompanied Professor Omarova’s oral testimony given on June 15, 2017, in a hearing held by the U.S. Senate Banking Committee on the necessity of relaxing certain aspects of post-crisis financial regulation applicable to midsized, regional and large banks, as a means of fostering America’s economic growth. In her written statement, Professor Omarova systematically lays out the reasons why massive deregulation urged by the banking industry will hinder, rather than foster, sustainable long-term growth in the real (i.e., non-financial) sector of the American economy.
Inter-American Court Recognizes Elevated Status of Trade Unions, Rejects Standing of Corporations
Authors: Cornell Angela B.
Published: July 2018

3 International Labor Rights Case Law (2017)The Inter-American Court was unanimous in concluding that legal entities do not have the standing to directly access the Inter-American system in a contentious process as presumptive victims. Corporations therefore will not be permitted to access the Court as victims of human rights transgressions, which the Court determined is limited to human beings, with two exceptions: trade unions and indigenous communities. Trade unions have standing as victims of human rights violations on their behalf and that of their members, but under certain limitations. This commentary focuses on the Court’s decision with regard to trade unions, but begins with a description of the heart of the decision limiting the access of other legal entities.
The "Race to the Bottom" Returns: China's Challenge to the International Labor Movement
Authors: Diamond Stephen F.
Published: July 2018

10 U.C. Davis Journal of International Law & Policy, (2003-04).
The New Family: Challenges to American Family Law
Authors: Bowman Cynthia Grant
Published: July 2018

22 Child and Family Law Quarterly 387 (2010)The vast demographic and social changes of the twentieth century have produced a variety of new family forms – cohabiting couples, same-sex couples, an increased number of single-parent families, and extended families resulting from divorce, for example. The legal system in the United States has yet adequately to address the legal problems that these new family forms create. This article discusses a number of major issues that arise from this failure, including: (1) the sometimes negative impact of gender-neutral rules in divorce upon women and children; (2) the ambiguity and inadequacy of property and support obligations between cohabitants; (3) the legal incidents of non-residential conjugal relationships; (4) the incomplete revolution in the status of gay and lesbian couples; (5) relationships in the post-divorce family, such as those between stepparents and their stepchildren; and (6) the many conflict of laws questions that arise from inconsistent treatment of these issues by different states.
Private Law and the Future of Patents
Authors: Liivak Oskar
Published: July 2018

30 Harvard Journal of Law & Technology 33 (2017)As it operates today, patent law does not qualify as private law and, without change, I doubt it ever will. For some, this is as it should be and any private law aspects that remain in the patent system should be purged. The basic argument is that the dominant theory of patents is just not compatible with private law and patent doctrine should reflect a pure public law theoretical basis. I agree that today's dominant patent theory is incompatible with private law principles. Yet agreeing with that inherent incompatibility does not imply that doctrine needs to be reformed. There is an alternative. Patent theory can be adjusted instead. This article points to an emerging innovation-focused basis for patent law that is explicitly private law. Not only does that lead to consistency, the change also offers a desperately needed promise of private law. Private law institutions offer the potential for extremely low administration costs. Private law institutions function smoothly without the need of chronic, expensive judicial intervention. Today the litigation related costs of the patent system threaten to capsize the whole patent system. Private law offers a promising, needed alternative.
Review of The Nuremberg Military Tribunals and the Origins of International Criminal Law
Authors: Keele Benjamin John
Published: July 2018

Keele, B. J. (2012). Review of The Nuremberg Military Tribunals and the Origins of International Criminal Law. International Journal of Legal Information 40(3), 599-600.
Who Are the Parents of Biotechnological Children?
Authors: Palmer Larry I.
Published: July 2018

35 Jurimetrics Journal 17 (1994)
Smith in Theory and Practice
Authors: Tebbe Nelson
Published: July 2018

32 Cardozo Law Review 2055 (2011)Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and other mechanisms for circumventing its main rule. While this brief piece does not attempt to prove the empirical claim that Smith has had a limited real-world impact, it gives reasons to think that it might be accurate. Moreover, it tests a similar argument with respect to scholarship, suggesting that even theorists who are sympathetic to Smith nevertheless are more willing to agree to exemptions in particular scenarios than is commonly realized, although important differences of degree and kind still separate them from opponents of the decision and from each other. The Conclusion offers one reason to celebrate this Essay’s depiction of how Smith actually operates, assuming it is correct: Raising awareness of its flexibility in the real world could lower the stakes of the ongoing national conflict over the proper place of religion in American public life.
ABSTENTION AT THE BORDER
Authors: Gardner Maggie
Published: July 2018

The lower federal courts have been invoking “international comity abstention” to solve a wide array of problems in cross-border cases. In doing so, they are using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s renewed embrace of the federal judiciary’s virtually unflagging obligation to exercise the jurisdiction given to the courts by Congress. Indeed, loose applications of “international comity abstention” risk undermining not only the interests of Congress, but the interests of the states as well.This Article argues against “international comity abstention” both as a label and as a generic doctrine. As a label, it has led courts to conflate abstention with other comity doctrines that are not about abstention at all, increasing the risk of judicial error and jeopardizing federalism protections. And as a generic doctrine, it encourages judges to decline their jurisdiction too readily, in contrast to the Court’s emphasis on the principle of jurisdictional obligation. The solution, however, is not to deny all judicial discretion to decline jurisdiction. Even if such a complete bar on abstention were intended as an act of judicial humility, it may serve to empower the judiciary instead. Absolute rules, whether based on constitutional limits or strict textualism, can override or exclude the other branches’ views regarding the proper scope of transnational litigation in U.S. courts. Leaving some space for judicial discretion to decline jurisdiction also leaves some space for the other branches to continue that conversation.In lieu of a single broad doctrine of “international comity abstention,” then, this Article proposes identifying more narrow bases for abstention in transnational litigation — bases that can be separately justified, candidly addressed, and analyzed through judicially manageable frameworks. In particular, the federal courts need a clear and consistent framework for when to stay cases in light of parallel litigation in foreign courts. A separate doctrine for deferring to foreign comprehensive remedial schemes may also be appropriate.Evaluating the doctrinal design of abstention in transnational litigation also serves as a lens through which to revisit a long-standing debate: To the extent that the principle of jurisdictional obligation reflects separation-of-powers concerns, those concerns can be addressed without insisting that judges’ hands are tied. True judicial humility recognizes both Congress’s role in defining the federal courts’ jurisdiction and the impossibility of asking judges to read Congress’s mind. Leaving space for carefully cabined discretion in hard cases recognizes both the complexity of life and the continuing need for inter-branch dialogue.
Repeat Players in Multidistrict Litigation: The Social Network
Authors: Burch Elizabeth Chamblee , Williams Margaret S.
Published: July 2018

102 Cornell L. Rev. 1445 (2017)As class certification wanes, plaintiffs’ lawyers resolve hundreds of thousands of individual lawsuits through aggregate settlements in multidistrict litigation. But without class actions, formal rules are scarce and judges rarely scrutinize the private agreements that result. Meanwhile, the same principal- agent concerns that plagued class-action attorneys linger. These circumstances are ripe for exploitation: few rules, little oversight, multi-million dollar common-benefit fees, and a push for settlement can tempt a cadre of repeat players to fill in the gaps in ways that further their own self-interest. Although multidistrict litigation now comprises 36% of the pending federal civil caseload, legal scholars have offered little sustained theoretical or empirical analysis as to how repeat players’ enforcement efforts shape litigation or claims resolution. We wade into this increasingly controversial territory to offer the first comprehensive empirical investigation of private attorneys’ efforts in multidistrict leadership on both the plaintiff and defense side. We found that transferee judges regularly appoint the same lead attorneys. To then uncover what the naked eye cannot see, we employed a social-network analysis to reveal repeat actors’ connections to one another. No matter what measure of centrality we used, a key group of attorneys maintained their elite position within the network. This matters considerably, for lead lawyers control the proceeding and negotiate settlements. They can bargain for what may matter to them most: defendants want to end lawsuits, and plaintiffs’ lawyers want to recover for their clients and receive high fee awards along the way. By identifying settlement provisions that one might argue principally benefit the repeat players, we examined the publicly available nonclass settlements these elite lawyers designed. Over a twenty-two-year span, we were unable to find any deal that did not feature at least one closure provision for defendants, and likewise found that nearly all settlements contained some provision that increased lead plaintiffs’ lawyers’ common-benefit fees. Bargaining for attorneys’ fees with one’s opponent is a stark departure from traditional contingent- fee principles, which are designed to tie lawyers’ fees to their clients’ outcome. Based on the evidence available to us, we found reason to be concerned that when repeat players influence the practices and norms that govern multidistrict proceedings—when they “play for rules,” so to speak—the rules they develop may principally benefit them at the expense of one-shot plaintiffs.
The Law and 3D Printing
Authors: Tran Jasper L.
Published: July 2018

John Marshall Journal of Information Technology and Privacy Law, Vol. 31, p. 505, 2015
Intent-to-Benefit: Individually Enforceable Rights in International Treaties
Authors: Kalantry Sital
Published: July 2018

Citizens of foreign countries are increasingly using international treaties to assert claims against Federal and state governments. As a result, U.S. courts are being asked to determine whether treaties provide litigants with individually enforceable rights. Although courts have no consistent approach to determining whether a treaty gives rise to individually enforceable rights, they often apply the textualist methodology derived from statutory interpretation. However, instead of using textual theories of statutory interpretation, I argue that courts should use intentionalist theories developed from contract interpretation in determining individually enforceable rights under treaties. Two positive arguments and one negative argument support my approach. First, the question of whether a non-party can enforce a treaty is structurally similar to the question of whether a non-party can enforce a contract, but structurally different from the issue of whether there is a private cause of action under a statute. Second, Supreme Court jurisprudence supports the view that treaties are contracts even though they have the effect of statutes. As such, it is appropriate to apply theories of contract interpretation to understanding treaties. Third, arguments used to justify using textualism for purposes of interpreting statutes are not relevant to interpreting treaties.I suggest that courts use a modified version of the "intent-to-benefit" test derived from contract law in determining whether a treaty is enforceable by a non-party. Under the modified "intent-to-benefit" test, a non-party will have individually enforceable rights and remedies under the treaty if the treaty identifies a class of individuals who are intended beneficiaries of the treaty and if such non-party is within that class of individuals. Applying this test suggests that courts should privilege the drafting history over the ratification history of a treaty in interpreting it.I apply the modified "intent-to-benefit " test to a case study-the Vienna Convention on Consular Relations. The Supreme Court recently decided in Sanchez-Llamas v. Oregon that the Vienna Convention on Consular Relations does not provide individuals with any remedies, but refused to decide whether the treaty provides individuals with rights. Since that decision, two Federal Courts of Appeals have come to differing conclusions on the question of whether that treaty creates individually enforceable rights. Under the modified "intent-to-benefit," the Vienna Convention on Consular Relations would be found to give rise to individually enforceable rights.Published: Intent-to-Benefit: Individually Enforceable Rights in International Treaties, 44 Stanford Journal of International Law 63 (2008).
Speaking the Same Language: Data Standards and Disruptive Technologies in the Administration of Justice
Authors: Colarusso David Anthony , Rickard Erika J.
Published: July 2018

Published: David Colarusso & Erika J. Rickard, Speaking the Same Language: Data Standards and Disruptive Technologies in the Administration of Justice, 50 Suffolk U. L. Rev. 387 (2017)While the legal profession is coming to grips with technological disruption, practitioners serving the needs of those with low and moderate-incomes find themselves struggling to keep up. Insufficient resources clearly impede large scale technological improvements. Yet, the rise of civic coding and the growing legal technology sector suggest an untapped pool of civic and private resources ready to help address this shortfall. We argue that state trial courts are best positioned to leverage these resources for the benefit of low and moderate-income individuals by addressing a key structural impediment to innovation: the lack of clearly-defined judicial data standards.
Information Gathering in the Era of Mobile Technology: Towards a Liberal Right to Record
Authors: Jacques Nicholas J.
Published: July 2018

Cameras are everywhere. From private security footage to homeland security surveillance to the photographic mapping of the streets of the world, people today are under constant scrutiny while in the public sphere. This phenomenon raises numerous legal questions, but possibly most problematic is the ubiquity of camera phones; today everyone has the ability to instantaneously create a video and spread it across the world. The enormity of this power at first glance seems to beg for legal regulation, but the nature of the issue cautions against it. Videos, after all, are just a medium of expression. And liberal democracy places a premium on freedom of expression, often to the detriment of other rights.
Employment Law in a Changing Workplace
Authors: Stone Katherine V.W.
Published: July 2018

28 Cornell Law Forum 1 (2001)This article is an abbreviated version of an article titled “The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law” that appeared in the UCLA Law Review (2001). For present purposes, most footnotes have been omitted.
Bankruptcy Law—Rethinking the Discharge of Late Filed Taxes in Consumer Bankruptcy
Authors: Dion Justin H. , Curatolo Barbara
Published: July 2018

Published: Justin H. Dion & Barbara Curatolo, Bankruptcy Law—Rethinking the Discharge of Late Filed Taxes in Consumer Bankruptcy, 40 W. NEW ENG. L. REV. 197 (2018).The 2005 amendments to the Bankruptcy Code, Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) was enacted in order to improve bankruptcy law. However, BAPCPA has made the issue of whether late-filed taxes are dischargeable even murkier than before the amendments. After BAPCPA, some courts continued to analyze claims as they had before the amendment. Others used a “one-day-late rule” that prevented late-filed taxes from being dischargeable—even if the taxes were filed only one day late. This Article suggests a different approach. It argues that the legislature intended tax debt associated with late-filed income tax returns be dischargeable if the return is filed within two years of the due date. *
Show Me the Money: Evaluating Personal Jurisdiction over Foreign Nonparty Banks in Light of the Gucci Case
Authors: Xu Xin
Published: July 2018

Cornell International Law Journal: Vol. 49 : No. 3 , Article 6Three recent cases, all decided between June and September 2015, show that luxury brand owners have developed a new strategy for limiting counterfeits: they bring lawsuits against individuals responsible for manufacturing and selling counterfeit goods. The defendants in all three cases sold counterfeit versions of the plaintiffs’ products on the Internet, including “Gucci” wallets, “Bottega Veneta” handbags, and other luxury brands’ jewelry, wallets, and handbags. These cases discuss the issue of whether nonparty foreign banks could be compelled, under U.S. federal civil procedure rules, to produce bank account information of individuals accused to have engaged in counterfeit activities. Although the three cases share almost identical facts, in 2011, three Southern District of New York judges released differing opinions on this issue.
Learning by Doing: Adding a Clinical Component to a Traditional Family Law Course
Authors: Bowman Cynthia Grant
Published: July 2018

29 Wisconsin Journal of Law, Gender & Society 129 (2014)This paper describes a clinical component recently added to the course in Family Law at Cornell Law School. Students who are either co-registered for or have previously taken Family Law receive an extra two credits for clinical work under the instructor's supervision. Each student undertakes to represent at least one client, who is referred from Neighborhood Legal Services, from the initial client interview through drafting, filing and service of the many documents required to obtain a final judgment for dissolution of marriage in New York State. In order to complete this work in one semester, the students do relatively simple divorces that will result in a default judgment. In addition to obtaining a divorce judgment on behalf of a client, students are required to staff a desk in the local family court for three hours a week in rotation, to assist persons filling out petitions for support, modification of support, or for violation of a support order.
Physicalism and Patent Theory
Authors: Cotropia Christopher A
Published: July 2018

United States patent law’s view on the need for a physical embodiment of the invention, and the continued production and use of an embodiment, has varied over the last two centuries. In the early days, the requirement for “physicalism” was high, with the inventor being required to actually reduce the invention to practice prior to patenting, and enforceability was tied to “working” the claimed invention. By the early 1900s, these requirements of physicalism disappeared. This changing view on physicalism speaks volumes as to which major patent theory the law emphasizes, with physicalism supporting the incentive to invent theory and the shift away from this physicalism bringing the disclosure theory to the forefront. This interplay between physicalism and patent theory, particularly regarding post-issuance physicalism, not only explains the past, it also describes the current discourse regarding, and legal reaction to, non-practicing entities (“NPEs”). Decisions such as eBay v. MercExchange, denying exclusivity to NPEs, once again emphasize physicalism and are interrelated to the incentive to invent and, in turn, downplay the disclosure theory and question its current validity as a patent policy goal.
Advanced Surveillance Technologies: Privacy and Evidentiary Issues
Authors: Zheng Tina
Published: July 2018

Cornell Law School J.D. Student Research Papers. 37Surveillance technology, which encompasses a large array of technologies used to observe individuals’ activities and communications, has advanced at a rapid pace and is becoming more widely available in the general marketplace. This trend is potentially caused by increasing fears of terrorism following the September 11 attacks as well the ability of surveillance technology manufacturers to produce the technology at lower costs. Although surveillance technology has long been used by the military and government intelligence agencies, the use of this technology by law enforcement and now private individuals in areas not of national security concern is new and raises privacy and evidentiary issues yet to be settled by U.S. courts.
¿Con la misma vara? Los altibajos de la igual protección de las leyes en las Opiniones del Juez Federico Hernández Denton, 83 Rev. Jur. U.P.R. 1087 (2014)
Authors: Roig Jorge R.
Published: July 2018

La carrera del juez presidente Federico Hernández Denton como juez del Tribunal Supremo de Puerto Rico abarca cuatro distintas décadas durante las cuales la sociedad puertorriqueña ha experimentado dramáticos cambios. Desde los intentos por eliminar el hostigamiento sexual y la violencia doméstica hasta el desarrollo de los derechos civiles de los individuos y las parejas homosexuales; desde el cierre de las urbanizaciones adineradas y el enclaustre de la clase media hasta los despidos masivos en el gobierno y la constitucionalización de las escoltas de los ex gobernadores; los cambios experimentados por los puertorriqueños no nos han tocado a todos por igual. Como trasfondo jurídico a estas transformaciones, las opiniones del juez Hernández Denton, en algunos casos mayoritarias y en otros casos disidentes, han explorado la aplicación de la cláusula constitucional que garantiza la igual protección de las leyes a todos. La historia del juez Hernández Denton en el Tribunal Supremo es una travesía que incluye sus jóvenes años como Juez Asociado y sus años como Juez Presidente de un Tribunal en achicamiento literal y figurado, y la conclusión de su carrera como Juez Presidente en un foro que cuenta con una nueva mayoría de seis jueces asociados nombrados todos por un mismo gobernador durante un explosivo cuatrienio. Este artículo explora los altibajos de la igual protección de las leyes en el crisol de las opiniones del juez Hernández Denton.En este artículo intentamos atender los principales casos sobre la igual protección de las leyes en los que ha participado el juez Hernández Denton a través de su carrera judicial en el Tribunal Supremo de Puerto Rico.
Patient Safety, Risk Reduction, and the Law
Authors: Palmer Larry I.
Published: July 2018

36 Houston Law Review 1609 (1999)"Patient safety" has come of age. With the publication of several empirical studies of medical injuries and the recent Institute of Medicine Report, To Err is Human: Building a Safe Health System, scholars from a variety of disciplines are advocating "systems thinking" as a way of preventing medical accidents. These scholars have been influenced by efforts to reduce accidents in other high risk industries such as aviation and scholarship in law proposing "no fault systems" for compensating medical accident victims. This article proposes that in order to incorporate "systems thinking" about medical error reduction, legal scholarship on the health care system must move beyond its preoccupation with the medical liability system. To develop a new framework for the role of law in enhancing patient safety, this article proposes that law's interaction with the public health system is the appropriate starting point for framing the legal analysis of patient safety. This framing of the issues acknowledges that the liability system may have a role to play in error reduction in medicine, but determining what this role is requires more empirical study of legal institutions as part of the emerging system of patient safety. To discover the appropriate role of law in the prevention of medical errors, this article encourages legal scholars to learn to pose empirical questions about how various institutions interact with the health care system.
Open Secrets
Authors: Madison Michael J
Published: July 2018

The law of trade secrets is often conceptualized in bilateral terms, as creating and enforcing rights between trade secret owners, on the one hand, and misappropriators on the other hand. This paper, a chapter in a forthcoming collection on the law of trade secrets, argues that trade secrets and the law that guards them can serve structural and insitutional roles as well. Somewhat surprisingly, given the law’s focus on secrecy, among the institutional products of trade secrets law are commons, or managed openness: environments designed to facilitate the structured sharing of information. The paper illustrates with examples drawn from existing literature on cuisine, magic, and Internet search.
Indirect Success? The impact and use of the ICRMW in other UN fora
Authors: Grant Stefanie , Lyon Beth
Published: July 2018

The UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families broke ground in international law by articulating baseline treatment for migrants. But as the Convention approaches its 30-year mark with only 51 state parties, it is an outlier amongst the “core” UN human rights instruments. This low level of ratification reflects difficulty in shifting the perception by many sovereign states of migrants as intruders/supplicants to one of migrants as rightsbearing subjects. The objective of this chapter is to provide an account of how some of these UN processes are interacting with the Convention. The discussion includes both standing fora and special mechanisms of the UN. The standing fora examined are the UN Human Rights Council, and the treaty bodies for the nine other principal human rights treaties. We examine special procedures that involve an overlap with the Migrant Workers Convention, including the Special Rapporteurs on the Human Rights of Migrants and on Trafficking in Persons, especially women and children. Since 1990, UN human rights treaty bodies have interpreted and reinterpreted their specific mandates to include all migrants. This has led to an increase in the inclusion of migrants’ rights in the work of all the treaty bodies. But it has also led to over-lapping jurisdictions, the risk of diverging interpretations, and of different treaty bodies acting independently to monitor obligations relating to migrants’ rights in their specific treaties. One consequence has been that even when specialized migration issues arise in states’ reports that are addressed by the Convention, generally it is not invoked by treaty bodies; they do not typically cite to the Convention even regarding issues the Committee on Migrant Workers (CMW) has addressed in its own Concluding Observations. A number of UN human rights experts and mechanisms do make reference to the Migrant Workers Convention, as has the High Commissioner for Human Rights. In addition, the UN human rights mechanisms make consistent calls for ratification of the ICRMW. But in government-driven fora such as the Universal Periodic Review (UPR) and in the non-UN Global Forum on Migration and Development, support for ratification is sharply divided between proponent states in the Global South and opponents or sceptics in the Global North.