“Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us About Mitigation” Hofstra Law Review, Vol. 36, No. 3, 2008 By John H. Blume, Sheri Lynn Johnson, and Scott E. Sundby Abstract: At every stage of the case, capital defense counsel have a duty to take advantage of all appropriate opportunities to argue why death is not a suitable punishment for their particular client. That duty can not be discharged effectively if the arguments are made in ignorance of available information concerning how persuasive they are likely to be to their audience. Heeding that simple proposition the authors present lessons from the work of the Capital Jury Project, an ongoing empirical research effort built upon extended interviews with people who have actually sat on capital juries.
“Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?” Harvard Law & Policy Review, Vol. II, 2008 By Kevin M. Clermont and Stewart J. Schwab Abstract: This article utilizes the Administrative Office's 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.
“Statins and Adverse Cardiovascular Events in Moderate Risk Females: A Statistical and Legal Analysis with Implications for FDA Preemption Claims” Cornell Legal Studies Research Paper By: Theodore Eisenberg and Martin T. Wells Abstract: This article presents: (1) meta analyses of studies of cardioprotection of women and men by statins, including Lipitor (atorvastatin), and (2) a legal analysis of advertising that promotes Lipitor as preventing heart attacks. The authors’ findings suggest inadequate regulation of the world's best-selling drug and counsel against courts accepting the Food and Drug Administration's claimed preemption of state law causes of action relating to warnings and safety. Courts evaluating preemption claims should consider actual agency performance as well as theoretical institutional competence.
“Summary Judgment Rates Over Time, Across Case Categories, and Across Districts: An Empirical Study of Three Federal Districts” Cornell Legal Studies Research Paper No. 08-022 By Theodore Eisenberg and Charlotte Lanvers Abstract: This article analyzes summary judgment rates in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA) in 1980–1981 and 2001–2002. It also analyzes summary judgment rates for the Central District of California (CDCA) for 1980–1981 and for other civil rights cases in the CDCA in 1975–1976. Subject to the limitation that both time periods studied are removed in time from the Supreme Court's 1986 summary judgment trilogy, the only strong evidence in this study of a post-trilogy increase as hypothesized in prior research, is in NDGA employment discrimination cases. Civil rights cases had consistently higher summary judgment rates than non–civil rights cases and summary judgment rates were modest in non–civil rights cases.
“Warranties and Disclaimers in the Electronic Age” Cornell Legal Research Paper No. 08-020 By Robert A. Hillman and Ibrahim Barakat Abstract: This paper reports on software-licensor express warranty and disclaimer practices on the Internet. The authors’ data show that virtually all of the Web sites and End User License Agreements (EULAs) sampled include express warranties on the Web site and disclaimers of the warranties in the EULAs that may erase all or much of the quality protection. Next, the paper reviews the reasons why consumers generally do not read their e-standard forms despite the prevalence of disclaimers and other adverse terms. The authors then argue that e-commerce exacerbates the problem of warranties and disclaimers and that lawmakers should address this issue.
“Like a Nation State” UCLA Law Review, Vol. 55, No. 6, 2008 By Douglas A. Kysar and Bernadette A. Meyler Abstract: Using California's self-consciously internationalist approach to climate change regulation as a primary example, this article examines constitutional limitations on state foreign affairs activities. By focusing on the prospect that California will establish a greenhouse gas (GHG) emissions trading system, this article demonstrates that certain constitutional objections to extrajurisdictional linkage of state GHG emissions trading systems and the response that these objections necessitate may be more complicated than previously anticipated.
