Scholarship @ Cornell Law

    From Macro to Micro to “Mission-Creep”: Defending the IMF’s Emerging Concern with the Infrastructural Prerequisites to Global Financial Stability

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    Charges that the IMF has been engaging in mission creep, gradually taking on a growing number of activities that exceed its constitutive mandate, have grown both in vehemence and in frequency since the late 1990s. I argue that, what ever the substantive merits of its actions, the IMF\u27s developing attention to the structural determinants of global financial stability is not ultra vires. The Fund\u27s evolving role was both foreseen and constitutionally provided for, both at its founding and at the principal constitutive Articles-amending moments since

    Enhancing Enforcement of Economic, Social and Cultural Rights Using Indicators: A Focus on the Right to Education in the ICESCR

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    Nearly fifteen years ago, Audrey R. Chapman emphasized the importance of ascertaining violations of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a means to enhance its enforcement. Today, the violations approach is even more salient given the recent adoption of the ICESCR’s Optional Protocol, a powerful tool to hold States parties accountable for violations. Indicators are essential tools for assessing violations of economic, social and cultural rights (ESCRs) because they are often the best way to measure progressive realization. Proposed guidelines on using indicators give guidance on the content of States parties reports to treaty monitoring bodies, but none creates a framework to assess violations of a specific right in a particular treaty. This article fills this void by providing a framework to assess State compliance that integrates indicators into the project of ascertaining specific violations of economic, social and cultural rights under the ICESCR. The methodology that we propose calls for: 1) analyzing the specific language of the treaty that pertains to the right in question; 2) defining the concept and scope of the right; 3) identifying appropriate indicators that correlate with State obligations; 4) setting benchmarks to measure progressive realization; and 5) clearly identifying violations of the right in question. We illustrate our approach by focusing on the right to education in the ICESCR. In addition to assessing right to education violations, this methodology can be employed to develop frameworks for ascertaining violations of other ESCRs as well

    Volume 1, no. 2 (November 2010) Table of Contents

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    Bollywood is coming! Copyright and Film Industry Issues Regarding International Film Co-Productions Involving India

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    The Indian film industry produces more movies than any other and is characterized as being on the threshold of emerging as a big market internationally with an expected growth rate of close to 20% per year. Its regulatory and legal mechanisms are developing rapidly to keep pace. This article is dedicated to the Indian film industry and its international potential. It analyzes the copyright aspects of film co-productions involving India and compares the characteristics of the national film industries of Germany, the U.S. and especially India (Bollywood) from a legal perspective. It points to key copyright issues in the field that will become relevant for potential co-producers. It also looks at the basic relevant copyright provisions regarding motion pictures in India, the U.S. and Germany. Also, it points to contractual provisions that should be included in international co-production contracts. Finally, it concludes with the pros and cons of international co-productions with Indian producers from the perspective of U.S. and German production companies

    Harmless Error in Federal Habeas Corpus After Brecht v. Abrahamson

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    The law of habeas corpus has changed again. This time it was the law of harmless error. Before Brecht v. Abrahamson, the courts applied the same harmless error rule on direct appeal and in federal habeas corpus. Under that rule, embraced for constitutional errors in Chapman v. California, a conviction tainted by a constitutional error susceptible to harmless error analysis could be upheld only if the state demonstrated that the error was harmless beyond a reasonable doubt. After Brecht, the venerable Chapman rule still applies to constitutional errors identified and reviewed on direct appeal, but an ostensibly less onerous standard applies to constitutional errors identified and reviewed on federal habeas corpus. Under this standard, derived from Kotteakos v. United States, and once used only for nonconstitutional errors, a conviction tainted by constitutional error “requires reversal only if it \u27had substantial and injurious effect or influence in determining the jury\u27s verdict.’” The Court was sharply divided in Brecht. The opinion of the Court was delivered by Chief Justice Rehnquist and joined by Justices Stevens, Scalia, Kennedy and Thomas. Justice Stevens, who provided the critical fifth vote, wrote a separate concurring opinion to emphasize that the [Brecht] standard is appropriately demanding. Justice Stevens\u27 separate concurring opinion deserves careful attention because it diverges from that of the Chief Justice in several ways, making Justice Stevens\u27 version of the Brecht-Kotteakos test much more favorable to habeas petitioners than that advanced by the Chief Justice. The following Article provides a concise overview and analysis of Brecht, focusing especially on the opinions of the Chief Justice and Justice Stevens. It explores the structure of the Brecht-Kotteakos rule, both as articulated in the Brecht opinion and as interpreted thus far by the lower federal courts. Its principal conclusion is that on careful analysis the Brecht-Kotteakos rule and the Chapman rule, though doubtlessly different, turn out not to be that different. Finally, this Article examines various exceptions to the Brecht-Kotteakos rule, as well as the limited authority of the federal habeas courts to apply harmless error analysis to errors infecting the penalty phase of a capital trial

    Do Juries Add Value?: Evidence from an Empirical Study of Jury Trial Waiver Clauses in Large Corporate Contracts

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    We study jury trial waivers in a data set of 2,816 contracts contained as exhibits in Form 8-K filings by reporting corporations during 2002. Because these contracts are associated with events deemed material to the financial condition of SEC-reporting firms, they likely are carefully negotiated by sophisticated, well-informed parties and thus provide presumptive evidence about the value associated with the availability of jury trials. Only a small minority of contracts, about 20 percent, waived jury trials. An additional nine percent of contracts had arbitration clauses that effectively preclude jury trials though the reason for arbitration clauses need not specifically relate to juries. We explore three groups of factors to explain the pattern of jury trial waivers: (1) contract-specific factors: the subject matter of a contract, a measure of its standardization, choice of law, and choice of forum, (2) contracting-party factors: domestic vs. international status, place of business, place of incorporation, attorney locale, and industry, and (3) factors external to the contracts and parties: perceptions of local jury fairness in the forum specified in the contract and the relative length of jury and bench trial queues in that forum. Contract-type is significantly associated with jury trial waivers. For example, over 50 percent of security agreements and over 60 percent of credit commitments waived jury trials. In contrast, only five percent of employment contracts, two percent of bond indentures, and 3.5 percent of pooling service agreements waived jury trials. Choice of forum, greater contract standardization, and perceived fairness of juries are significantly associated with jury trial waivers. Over 80 percent of the contracts designating Illinois as a forum contained jury trial waivers whereas less than half the contracts designating New York as a forum, and only about one-third of the contracts designating California, Texas, or Florida as a forum contained waiver clauses. Jury trial waivers were not more common in international contracts. Our results suggest that, contrary to a widespread perception about the alleged inadequacies of juries in complex business cases, sophisticated actors may perceive that juries often add value to dispute resolution

    Anti-Foreign-Suit Injunctions to Enforce Arbitration Agreements

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    Despite agreeing that courts should exercise great caution concerning anti-foreign-suit injunctions, the author argues in favor of such a remedy in a particular setting where enforcing an agreement to arbitrate is at stake. That setting occurs when the parties to an arbitration agreement place the arbitration seat in a particular country (F1) and also choose that country\u27s law to govern the arbitration agreement (its existence, validity and scope). Such an agreement should be understood as choosing F1 courts to resolve any differences over the ordinary arbitrability of the dispute (existence, validity, and scope of the arbitration clause). Thus, if one of the parties tries to litigate the dispute in a different country (F2), that party acts in breach of the arbitration agreement and may be enjoined from doing so. The author argues that parties wanting a strongly enforceable arbitration clause will favor this remedy and will want to place the arbitration seat in, and choose the law of, a country that will provide it. The author would make an exception where F2 may have a strong public policy reason to treat the subject matter as not capable of settlement by arbitration - a public policy challenge to arbitrability, as opposed to a garden variety existence, validity, or scope challenge to arbitrability. In a public policy case an F1 court should not issue an anti-foreign-suit injunction. The author discusses two recent court decisions in the UK (Through Transport and West Tankers) that exemplify the approach advocated

    Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?

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    This Article utilizes the Administrative Office\u27s data to convey the realities of federal employment discrimination litigation. Litigants in these jobs cases appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs. These troublesome facts help explain why today fewer plaintiffs are undertaking the frustrating route into federal district court, where plaintiffs must pursue their claims relatively often all the way through trial and where at both pretrial and trial these plaintiffs lose unusually often

    Behind Close Doors: Governance Issues in Private Equity Driven Industries – The Close Corporation Paradox and its Impact on Private Equity in the US and Sweden

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    Publicly traded companies make up only a small fraction of the vast number of corporations operating in the US today. Only about 10,000 companies are traded publicly while there are roughly 20 million corporations doing business in the US. Likewise, over 245 private corporations’ annual revenues exceed $1 billion. Among these, more than twelve employ more than 50,000 employees. Despite the influence on vast amounts of people and capital legislature has, to a large degree, focused on publicly traded companies. The reasons for this stem, in large, back to the years of the market crash in the early thirties and has since given rise to a multitude of regulatory and legislative actions. The recent scandals giving rise to the Sarbanes Oxley Act and, most likely, new regulation pertaining to the recent credit crisis impacts the governance of companies across the globe. Different regulatory schemes have evolved to remedy situations arising in an ever more complex corporate market. In the US, a system of enabling legislation has arisen. The basic principle is that freedom of contract will create a more efficient market. Choosing in which state and how to incorporate will allow for decisions regarding form, taxes, liabilities and contractual rights. In Europe, regulation has instead focused in part on safeguarding rights be enacting regulations to limit certain actions and the restrictions imposed are based on which nation you start your enterprise in. The paradox of whether to enable efficient markets by creating freedom or safeguarding against venture capital vultures becomes strikingly apparent in the close corporation. This article aims to compare elements of the regulatory policies in the largest per capita private equity market in the world, the United States, and the third largest, Sweden. After I describe how approaches to corporate governance in the US might impact the private equity market (by imposing fiduciary duties and how those duties can be circumnavigated ex ante) I will describe the Swedish corporate regulatory environment. Special focus will be given to differences in capital requirements and how fiduciary duties play a role in maintaining shareholder rights. By describing the different approaches to regulating corporate governance a picture starts to emerge which shows that despite differences in governance techniques and risk allocation devices employed, an effective market seems to have emerged in both countries

    Obama and the New Age of Reform

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