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Cornell Law Review, Volume 106, Issue 6

13 Nov 2021

Thank you to our amazing authors for their outstanding collaboration and patience with us during the COVID-19 pandemic. Please see below for a complete list of Vol. 106, Issue 6 authors and their scholarship.

Articles

Legal Corpus Linguistics and the Half-Empirical Attitude

Anya Bernstein, Professor of Law, SUNY Buffalo Law School

Corpus linguistics in linguistics makes an empirical claim: that its analysis illuminates truths about the language in the corpus. Legal corpus linguistics, in contrast, uses empirical methods to support a normative claim: that its analysis ought to influence the interpretation of legal texts. Treating normative claims as though they were empirical findings constitutes what I call a half-empirical attitude. Because of it, legal corpus work rests empirical results on fictional foundations. At the same time, I suggest ways that legal corpus linguistics could be useful to legal theory—if it embraces the other half of an empirical attitude.

Elder Financial Abuse: Capacity Law and Economics

Ben Chen, Lecturer in Law (Assistant Professor equivalent), The University of Sydney

This Article argues that the mental capacity doctrine in prevailing American law is ill-suited for the era of aging population. In theory, the doctrine grants mentally-incapable individuals a power to choose whether to avoid their transactions. In reality, that power is usually exercised by claimants who expect to inherit from incapable individuals. Prevailing doctrinal theories overlook the possibility that the claimant may seek to avoid a transaction to increase her expected inheritance, rather than to advance the interests of the incapable individual. As a result, the mental capacity doctrine may operate to avoid transactions that actually had benefited potentially incapable seniors and reflected their testamentary intent. This harms many seniors by unduly limiting their ability to gift their close relatives and friends, reward informal caregiving, and recruit their preferred caregivers.

The State Courts Don’t Have Time for Your Crackpot Antiquarianism: A Decade of Domestic Homicides Since Giles V. California

Caren Myers Morrison, Associate Professor of Law, Georgia State University College of Law

This Article proceeds in three parts. Part I reviews the reinvigorated Confrontation Clause jurisprudence launched by Crawford v. Washington and the new hurdles to proving forfeiture by wrongdoing. Part II analyzes how the state courts and lower federal courts have resolved forfeiture issues in 114 domestic homicide cases since Giles v. California. Part III critiques the three foundational policies that support Giles, namely fairness to the defendant, evenhandedness among victims, and deference to history, and explores how these fared in the trial courts. It concludes that domestic homicides present a situation where the ideological commitments of the higher Court do not map comfortably onto the real-life situations faced by the trial courts.

Notes

Bostock v. Clayton County: The Implications of a Binary Bias

KA. Russell, J.D. Candidate 2022, Cornell Law School; B.A. in Theater, Film & Media Studies, and Gender & Sexuality Studies, Haverford College, 2014

This Note will address the disconnect between the liberatory promise of Bostock and the implications of the case’s constricting language for the developing legal rights of gender nonbinary people. I argue that unless litigators can convince courts to directly include nonbinary people in Bostock’s holding, nonbinary plaintiffs may still be subject to the same compromised protection afforded them under prior sex stereotyping case law. Ultimately, nonbinary people will only gain full protection under a model that recognizes them in their own right, rather than views nonbinary claims as merely weaker versions of transgender or gender nonconforming ones.

Are We There Yet?” No.: The Numbers That Support Adopting Automatic Appeals in Juvenile Delinquency Proceedings

Thomas G. Shannan, Cornell Law School’s Frank H.T. Rhodes 2021–2023 Public Interest Fellow, Citizens Concerned for Children, Inc.; J.D., Cornell Law School, 2021; B.S., Vanderbilt University, 2017.

The United States juvenile justice system is grossly inadequate on a national level. For over a century, juvenile courts in various forms have been heralded as benign mechanisms that offer an alternative for “troubled youth” who commit acts that would constitute crimes if committed by adults. This Note contributes to the ongoing and expanding literature on juvenile justice appeals.

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