The Supreme Court constantly is changing what previously had been relatively settled understandings of what the law requires. Whenever that happens, the question arises: What to do about cases that courts have already resolved using subsequently changed legal principles? In a previous article, I identified and criticized a previously under-appreciated method for limiting the disruptive effects of legal change: a “forfeiture” approach that subjects criminal defendants who failed to anticipate new rulings to a narrow form of appellate review that virtually guarantees they will lose. This Essay expands the analysis in light of the Supreme Court’s recent decision in Davis v. United States, which suggests a different, “remedy-limiting” approach. Although representing a substantial improvement over the flawed forfeiture approach, a remedy-limiting approach remains inferior to a return to a more straightforward “non-retroactivity” analysis as a way of grappling with the important and unique problems posed by legal change.
{"title":"The Framework(s) of Legal Change","authors":"Toby J. Heytens","doi":"10.2139/SSRN.1920753","DOIUrl":"https://doi.org/10.2139/SSRN.1920753","url":null,"abstract":"The Supreme Court constantly is changing what previously had been relatively settled understandings of what the law requires. Whenever that happens, the question arises: What to do about cases that courts have already resolved using subsequently changed legal principles? In a previous article, I identified and criticized a previously under-appreciated method for limiting the disruptive effects of legal change: a “forfeiture” approach that subjects criminal defendants who failed to anticipate new rulings to a narrow form of appellate review that virtually guarantees they will lose. This Essay expands the analysis in light of the Supreme Court’s recent decision in Davis v. United States, which suggests a different, “remedy-limiting” approach. Although representing a substantial improvement over the flawed forfeiture approach, a remedy-limiting approach remains inferior to a return to a more straightforward “non-retroactivity” analysis as a way of grappling with the important and unique problems posed by legal change.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"97 1","pages":"595"},"PeriodicalIF":2.5,"publicationDate":"2011-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67787218","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}
This Essay does not focus on legal theory in law schools, the common core of legal scholarship as practiced in law schools, nor the trend towards interdisciplinary research as reflected in the "law and" movements in law schools. Rather, it looks outside of law schools, law reviews, and internal legal discourse. It examines the role that legal scholars play in interdisciplinary debates on legal issues. Do they attend such debates, and if so, do these scholars offer a unique voice based on legal theory or on other tools or sensitivities provided by the legal discipline?
{"title":"Legal Scholars, Economists and the Interdisciplinary Study of Institutions","authors":"Ron Harris","doi":"10.2139/SSRN.1995502","DOIUrl":"https://doi.org/10.2139/SSRN.1995502","url":null,"abstract":"This Essay does not focus on legal theory in law schools, the common core of legal scholarship as practiced in law schools, nor the trend towards interdisciplinary research as reflected in the \"law and\" movements in law schools. Rather, it looks outside of law schools, law reviews, and internal legal discourse. It examines the role that legal scholars play in interdisciplinary debates on legal issues. Do they attend such debates, and if so, do these scholars offer a unique voice based on legal theory or on other tools or sensitivities provided by the legal discipline?","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"96 1","pages":"789"},"PeriodicalIF":2.5,"publicationDate":"2011-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67836943","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}
Game theory has been a mainstay in the international relations literature for several decades, but its appearance in the international law literature is of a far more recent vintage. Recent accounts have harnessed alleged lessons learned from game theory in service of a new brand of “realism” about international law. These skeptical accounts conclude that international law loses its normative force because states that “follow” international law are simply participants in a Prisoner’s Dilemma seeking to achieve self-interested outcomes. Such claims are not just vastly exaggerated; they represent a profound misunderstanding about the significance of game theory. Properly conceived, the best way to understand international law is as a Nash Equilibrium - a focal point that states gravitate toward as they make rational decisions regarding strategy in light of strategies selected by other states. In domains where international law has the greatest purchase, the preferred strategy is reciprocal compliance with international norms. This strategy is consistent with the normativity of both law and morality, both of which are characterized by self-interested actors who accept reciprocal constraints on action to generate Nash Equilibria and, ultimately, a stable social contract. These agents - “constrained maximizers” as the philosopher David Gauthier calls them - accept the constraints of a normative system in order to achieve cooperative benefits. This Article concludes by explaining that it is also rational for states to comply with these constraints: agents evaluate competing plans and strategies, select the best course of action, and then stick to their decision, rather than obsessively reevaluating their chosen strategy at each moment in time. A state that defects from international law when the opportunity arises may, in the long run, reduce its overall payoff, as compared to a state that selects and adheres to a strategy of con-strained maximization.
{"title":"Nash Equilibrium and International Law","authors":"J. Ohlin","doi":"10.1093/ejil/chs060","DOIUrl":"https://doi.org/10.1093/ejil/chs060","url":null,"abstract":"Game theory has been a mainstay in the international relations literature for several decades, but its appearance in the international law literature is of a far more recent vintage. Recent accounts have harnessed alleged lessons learned from game theory in service of a new brand of “realism” about international law. These skeptical accounts conclude that international law loses its normative force because states that “follow” international law are simply participants in a Prisoner’s Dilemma seeking to achieve self-interested outcomes. Such claims are not just vastly exaggerated; they represent a profound misunderstanding about the significance of game theory. Properly conceived, the best way to understand international law is as a Nash Equilibrium - a focal point that states gravitate toward as they make rational decisions regarding strategy in light of strategies selected by other states. In domains where international law has the greatest purchase, the preferred strategy is reciprocal compliance with international norms. This strategy is consistent with the normativity of both law and morality, both of which are characterized by self-interested actors who accept reciprocal constraints on action to generate Nash Equilibria and, ultimately, a stable social contract. These agents - “constrained maximizers” as the philosopher David Gauthier calls them - accept the constraints of a normative system in order to achieve cooperative benefits. This Article concludes by explaining that it is also rational for states to comply with these constraints: agents evaluate competing plans and strategies, select the best course of action, and then stick to their decision, rather than obsessively reevaluating their chosen strategy at each moment in time. A state that defects from international law when the opportunity arises may, in the long run, reduce its overall payoff, as compared to a state that selects and adheres to a strategy of con-strained maximization.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"96 1","pages":"869"},"PeriodicalIF":2.5,"publicationDate":"2010-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ejil/chs060","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60708986","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":"Autism, insurance, and the idea: providing a comprehensive legal framework.","authors":"Colleen D Holland","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"95 6","pages":"1253-82"},"PeriodicalIF":2.5,"publicationDate":"2010-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"29345504","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":"Can bad science be good evidence? Neuroscience, lie detection, and beyond.","authors":"Frederick Schauer","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"95 6","pages":"1191-220"},"PeriodicalIF":2.5,"publicationDate":"2010-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"29345503","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":"Invisible and involuntary: female genital mutilation as a basis for asylum.","authors":"Zsaleh E Harivandi","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"95 3","pages":"599-626"},"PeriodicalIF":2.5,"publicationDate":"2010-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"28894696","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}
Entrants joining the legal profession are entitled to fair warning about what they are getting into. Accounts of lawyers' heroism, triumph, and reformist energy continue to inspire young people to pursue this profession, and they should. But before they represent a client, newcomers need to be informed about pitfalls, the complement to power: how lawyers lose their licenses, face liability for malpractice and breach of fiduciary duty, see their work performance deemed not competent or not "effective" under the Sixth Amendment, struggle against judges, become disqualified from representing particular clients, and forfeit some freedoms of speech and association. Learning about pitfalls enables lawyers not only to protect themselves should they encounter danger, but also to advance what is good for their clients and the public. This Essay examines lawyers' pitfalls with an eye to their vocational and theoretical interest, gives examples of pitfalls-related teaching and learning strategies already present (but not always visible) in the American legal curriculum, and integrates this perspective with other approaches to lawyers' professional responsibility.
{"title":"Pitfalls Ahead: A Manifesto for the Training of Lawyers","authors":"Anita Bernstein","doi":"10.2139/SSRN.1432461","DOIUrl":"https://doi.org/10.2139/SSRN.1432461","url":null,"abstract":"Entrants joining the legal profession are entitled to fair warning about what they are getting into. Accounts of lawyers' heroism, triumph, and reformist energy continue to inspire young people to pursue this profession, and they should. But before they represent a client, newcomers need to be informed about pitfalls, the complement to power: how lawyers lose their licenses, face liability for malpractice and breach of fiduciary duty, see their work performance deemed not competent or not \"effective\" under the Sixth Amendment, struggle against judges, become disqualified from representing particular clients, and forfeit some freedoms of speech and association. Learning about pitfalls enables lawyers not only to protect themselves should they encounter danger, but also to advance what is good for their clients and the public. This Essay examines lawyers' pitfalls with an eye to their vocational and theoretical interest, gives examples of pitfalls-related teaching and learning strategies already present (but not always visible) in the American legal curriculum, and integrates this perspective with other approaches to lawyers' professional responsibility.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"94 1","pages":"479"},"PeriodicalIF":2.5,"publicationDate":"2009-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68180080","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":"As the tide turns: the changing HIV/AIDS epidemic and the criminalization of HIV exposure.","authors":"James B McArthur","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"94 3","pages":"707-42"},"PeriodicalIF":2.5,"publicationDate":"2009-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"28229557","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":"Mandatory reassignment under the ADA: the circuit split and need for a socio-political understanding of disability.","authors":"Nicholas A Dorsey","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"94 2","pages":"443-78"},"PeriodicalIF":2.5,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"28046273","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}
In Weissman v. National Association of Securities Dealers, the Eleventh Circuit narrowed the doctrine of absolute immunity for Self-regulatory organizations in a way that may make it possible for private investors to recover from the stock exchanges themselves for investments gone awry.
{"title":"Weissman v. National Association of Securities Dealers: A Dangerously Narrow Interpretation of Absolute Immunity for Self-Regulatory Organizations","authors":"Andrew J. Cavo","doi":"10.2139/SSRN.1162942","DOIUrl":"https://doi.org/10.2139/SSRN.1162942","url":null,"abstract":"In Weissman v. National Association of Securities Dealers, the Eleventh Circuit narrowed the doctrine of absolute immunity for Self-regulatory organizations in a way that may make it possible for private investors to recover from the stock exchanges themselves for investments gone awry.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"94 1","pages":"415"},"PeriodicalIF":2.5,"publicationDate":"2008-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68149454","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}
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