Digital Commons Network^™

The Individual As Polluter, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Individuals are the largest source ofdioxin emissions, contribute almost one-third ofall ozone precursor emissions, and are afar larger source of several other air toxics than all large industrial sources combined. Thus, after more than 30 years ofregulation largely directed at industry, individual behavior has emerged as a leading source ofpollution. Prof Michael P. Vandenbergh argues that treating individual behavior as a discrete source of pollution can lead to the development of viable, innovative regulatory instruments that have the prospect of achieving pollution reductions at a relatively low cost. The creation ofan individual toxic release inventory, for example, is one such …

The Myth Of Accountability And The Anti-Administrative Impulse, Edward L. Rubin

Vanderbilt Law School Faculty Publications

The idea of accountability is very much in fashion in legal and political thought these days. To be sure, the term is used in a variety of different ways, but that is the nature of fashion. Colored cloth ponchos may be in fashion this season, for example, but they can be shaped and colored in a variety of different ways. It is differences of this sort that sustain a fashion trend. If the only poncho available were red and square, the fashion trend would display an impressive unity, but it wouldn't last very long. In order to make sales, clothing …

Effectively Ineffective: The Failure Of Courts To Address Underfunded Indigent Defense Systems, Lauren D. Sudeall

Vanderbilt Law School Faculty Publications

This notice was posted in a Covington, Kentucky, courthouse in the late 1980s, in the hope that a lawyer might be found to defend the pending capital case of Gregory Wilson. In Covington, the statutory limit on funding for defense counsel in capital cases was $2500 and the local indigent defense program could not find a lawyer willing to defend the case for such a paltry sum. When the head of the indigent defense program asked the judge to order additional compensation to secure a defense lawyer, "the judge refused and suggested that the indigent defense program rent a river …

Authorizations For The Use Of Force, International Law, And The "Charming Betsy" Canon, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

Although international law has figured prominently in many disputes around actions of the U.S. military, the precise relationship between international law and the President's war powers has gone largely unexplored. This Article seeks to clarify one important aspect of that relationship: the role of international law in determining the scope of Congress's general authorizations for the use of force. In the seminal case of Hamdi v. Rumsfeld, the plurality opinion used international law to interpret the authorization by Congress for the use of force, but did so without adequate attention to the content or interpretive function of international law. This …

Order Without Social Norms: How Personal Norm Activation Can Protect The Environment, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article tackles a leading problem confronting norms theorists and regulators: how can the law induce changes in behavior when the material costs to the individual outweigh the benefits and there is no close-knit community to impose sanctions for failure to change? Because private individuals and households are now surprisingly large contributors to environmental problems ranging from toxic pollution to climate change, environmental policy makers face compelling examples of these negative-payoff, loose-knit group situations. This Article suggests that internalized personal norms, rather than social norms, are the most important initial target of opportunity for influencing this kind of behavior.

Drawing …

Law And Behavioral Biology, Owen D. Jones, Timothy H. Goldsmith

Vanderbilt Law School Faculty Publications

Society uses law to encourage people to behave differently than they would behave in the absence of law. This fundamental purpose makes law highly dependent on sound understandings of the multiple causes of human behavior. The better those understandings, the better law can achieve social goals with legal tools. In this Article, Professors Jones and Goldsmith argue that many long held understandings about where behavior comes from are rapidly obsolescing as a consequence of developments in the various fields constituting behavioral biology. By helping to refine law's understandings of behavior's causes, they argue, behavioral biology can help to improve law's …

When Process Affects Punishment: Differences In Sentences After Guilty Plea, Bench Trial, And Jury Trial In Five Guidelines States, Nancy J. King, David A. Soule, Sara Steen, Robert R. Weidner

Vanderbilt Law School Faculty Publications

The research reported in this Essay examines process discounts-differences in sentences imposed for the same offense, depending upon whether the conviction was by jury trial, bench trial, or guilty plea-in five states that use judicial sentencing guidelines. Few guidelines systems expressly recognize "plea agreement" as an acceptable basis for departure, and none authorizes judges to vary sentences based upon whether or not the defendant waived his right to a jury trial and opted for a bench trial. Nevertheless, we predicted that because of the cost savings resulting from waivers, judges and prosecutors in any sentencing system would ensure that guilty …

The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases).

Constructing Reality: Social Science And Race Cases, Beverly I. Moran

Vanderbilt Law School Faculty Publications

Dred Scott v. Sanford, Plessy v. Ferguson, Brown v. Board of Education and Grutter v. Bollinger all demonstrate that law alone is not enough to make social change. Instead, lawyers interested in social change must understand the nature of the societies that they attempt to persuade and the language that leads judges to change their ways of thinking. In the early 21st century, the language of persuasion is often the language of social science.

The Meaning Of Value: Assessing Just Compensation For Regulatory Takings, Christopher Serkin

Vanderbilt Law School Faculty Publications

This Article argues that valuing compensation provides just such a window into deeper theories of takings, revealing a host of considerations that map on to specific approaches to takings law. 4 Moreover, compensation rules properly applied can advance the substantive goals of various takings regimes. At the least, since the range of monetary values that can be assigned to takings claims corresponds to diverse social values, compensation rules should be applied consistently with core constitutional values. This Article therefore argues that the adequacy of compensation cannot be determined in the abstract but must rather be judged by how effectively a …

Regulation By Adaptive Management--Is It Possible?, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Today's voluminous literature on adaptive management traces its roots to Professor C.S. Holling's seminal work, Adaptive Environmental Assessment and Management. Although almost thirty years have passed since he and his colleagues first described the adaptive management methodology, no work on the topic has improved on their core theory. Its essence is an iterative, incremental decisionmaking process built around a continuous process of monitoring the effects of decisions and adjusting decisions accordingly. It is in other words, far more suited to the needs of future regulatory challenges than is prescriptive regulation. My focus, however, is not on what adaptive management should …

Toward A Common Law Of Ecosystem Services, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This article suggests ways in which the common law can integrate concepts of ecosystem services to fulfill pragmatic objectives of common law doctrine. Rather than requiring a radical departure from traditional common law doctrine as is often proposed in environmental literature on the common law, ecosystem services can fold seamlessly into existing common law principles as a source of new knowledge and changed circumstances.

Moving Public Law Out Of The Deference Trap In Regulated Industries, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article argues that public law has fallen into what I call a deference trap in addressing conflicts in deregulated industries, such as telecommunications and electric power. The deference trap describes a judicial reluctance to intervene in disputes involving political institutions, such as regulatory agencies and states. By reassessing the deference trap across the legal doctrines that are effecting emerging telecommunications and electric power markets, public law can deliver much more for deregulated markets. The deference trap poses a particular cost as markets are deregulated, one that may not have been present during previous regulatory eras in which public and …

Mental Disorder As An Exemption From The Death Penalty: The Aba-Irr Task Force Recommendations, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The Task Force on Mental Disability and the Death Penalty (Task Force) established by the Individual Rights and Responsibilities Section of the American Bar Association (ABA-IRR) has proposed that the ABA adopt three recommendations concerning the role of mental disability in capital cases. The first two recommendations call for a prohibition on execution of offenders whose mental disorder rendered them less culpable at the time of the offense, and the third would prohibit execution of those whose mental disability currently renders them incompetent to pursue appeals or to be executed. This Article discusses the first two, culpability-related, recommendations. With respect …

Politics And Judgment, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Two hundred years after its most famous invocation in Marbury v. Madison, judicial review has apparently lost its luster. Despite its global spread, it is in disrepute in its country of origin. The mainstream American academic attitude toward judicial review as practiced by the modern Supreme Court ranges from open hostility to a position similar to Winston Churchill's on democracy: It is the worst way to implement a Constitution, except for all the rest. This essay, part of a larger book project with Daniel Farber, provides one explanation of the source of the hostility, defends judicial review against its critics, …

Can Judges Ignore Inadmissible Information? The Difficulty Of Deliberately Disregarding, Chris Guthrie, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

Due process requires courts to make decisions based on the evidence before them without regard to information outside of the record. Skepticism about the ability of jurors to ignore inadmissible information is widespread. Empirical research confirms that this skepticism is well founded. Many courts and commentators, however, assume that judges can accomplish what jurors cannot. This Article reports the results of experiments we have conducted to determine whether judges can ignore inadmissible information. We found that the judges who participated in our experiments struggled to perform this challenging mental task. The judges had difficulty disregarding demands disclosed during a settlement …

Traditional Knowledge & Intellectual Property: A Trips-Compatible Approach, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Should intellectual property provide a means for strengthening the range of incentives that local communities need for conserving and developing genetic resources and traditional knowledge (TK)? If so, how and at what cost? To be able to suggest answers, a number of issues must be resolved. They are the focus of the Article. First, one must build, and then cross, a cultural bridge to explain current forms of intellectual property to holders of traditional knowledge, including definitional efforts to determine the nature and depth of the overlap(s). This achieves a dual objective: it allows intellectual property circles to understand and …

The Purpose Of Copyright Law In Canada, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

IN THREE RECENT CASES, the Supreme Court of Canada provided several pieces of the Canadian copyright policy puzzle. We now know that the economic purpose of copyright law is instrumentalist in nature, namely, to ensure the orderly production and distribution of, and access to, works of art and intellect. The Court added that copyright can not enter carelessly into the private sphere of individual users. By targeting end-users in recent lawsuits, copyright holders have also found out that it is difficult to enforce a right that has not been properly internalized. After reviewing the Supreme Court trilogy of cases, the …

Intellectual Property, Trade & Development: The State Of Play, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article considers, first, available economic, social, and cultural analyses of the impact of intellectual property protection in developing countries. Economics provides a useful set of analytical tools and are directly relevant, in particular since the successfully arranged marriage of IP and trade rules after which it became inevitable that IP rules would be measured using an economic yardstick. The Paper also considers the claim that making proper intellectual property policy is impossible or inherently unreliable because theoretical models are inadequate or valid empirical data unavailable. Against this backdrop, the Article then examines the emergence of the World Trade Organization …

Waging War: Japan's Constitutional Constraints, John O. Haley

Vanderbilt Law School Faculty Publications

Both electoral results and public opinion polls have long revealed what most observers have viewed as a paradox if not a contradiction. By significant majorities, the Japanese people appear to oppose any revision of article 9, but support the SDF and their deployment with legislative sanction. The seemingly antithetical aspects of these views can be reconciled if one accepts the proposition that the public is willing to allow an armed force but only within parameters that are still ill-defined. So long as article 9 remains, the government is constrained by the need for legislative approval and at least potential judicial …

Letting Billions Slip Through Your Fingers: Empirical Evidence And Legal Implications Of The Failure Of Financial Institutions To Participate In Securities Class Action Settlements, Randall Thomas, James D. Cox

Vanderbilt Law School Faculty Publications

This article presents the results of an empirical investigation of the frequency with which financial institutions submit claims in settled securities class actions. We combine an empirical study of a large set of settlements with the results of a survey of institutional investors about their claims filing practices. Our sample for the first part of the analysis contains 118 settlements that were not included in our earlier study. We find that less than 30% of institutional investors with provable losses perfect their claims in these settlements. We then explore the possible explanations for this widespread failure. We suggest a wide …

Appeal Waivers And The Future Of Sentencing Policy, Nancy J. King, Michael E. O'Neill

Vanderbilt Law School Faculty Publications

This paper is the first empirical analysis of appeal waivers clauses in plea agreements by which defendants waive their rights to appellate and postconviction review. Based on interviews and an analysis of data coded from 971 randomly selected cases sentenced under the United States Sentencing Guidelines, the study's findings include (1) in nearly two-thirds of the cases settled by plea agreement, the defendants waived their rights to review; (2) the frequency of waiver varies substantially among the circuits, and among districts within circuits; (3) the government appears to provide some sentencing concessions more frequently to defendants who sign waivers than …

Reenvisioning Law Through The Dna Lens, Edward K. Cheng

Vanderbilt Law School Faculty Publications

In recent times, no development has transformed the practice of criminal justice as much as DNA evidence. In little over fifteen years, DNA profiling has produced nothing short of a paradigm shift.1 For police and prosecutors, DNA has become a potent weapon for identifying and convicting criminals. Trace biological material left at a crime scene now provides critical evidence for generating leads through "cold searches" of DNA databases and for convicting defendants at trial. At the same time, for defense attorneys, DNA has become an invaluable tool for seeking exonerations, because just as DNA can link defendants to crimes, it …

Does Frye Or Daubert Matter? A Study Of Scientific Admissibility Standards, Edward K. Cheng, Albert Yoon

Vanderbilt Law School Faculty Publications

Nearly every treatment of scientific evidence begins with a faithful comparison between the Frye and Daubert standards. Since 1993, jurists and legal scholars have spiritedly debated which standard is preferable and whether particular states should adopt one standard or the other. These efforts beg the question: Does a state's choice of scientific admissibility standard matter? A growing number of scholars suspect that the answer is no. Under this theory, the import of the Supreme Court's Daubert decision was not in its doctrinal standard, but rather in the general consciousness it raised about the problems of unreliable scientific evidence. This Article …

The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases).

The Iraqi Special Tribunal: A Human Rights Perspective, Michael A. Newton

Vanderbilt Law School Faculty Publications

The creation of the Iraqi Special Tribunal in December 2003 by Iraqi authorities who were at the time under the legal occupation of the Coalition Provisional Authority marked the emergence of a new form of internationalized domestic tribunals. The Iraqis succeeded in incorporating the full range of modern crimes into their domestic codes alongside some carefully selected domestic offenses, while amending domestic procedural law in some key ways to align the process with established international law related to the provision of full and fair trials. The subsequent investigations and the beginning of trial proceedings generated major debates about the legitimacy …

Adverse Possession Of Identity: Radical Theory, Conventional Practice, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

This Article examines the conditions under which acting as if one has a particular legal status is sufficient to secure that status in the eyes of the law. Legal determinations of common-law marriage, functional parenthood, and racial identity share striking similarities to adverse possession law – these doctrines confer legal status on those who are merely acting as if they have that legal status. In each case, the elements of a legal claim are strikingly similar: physical proximity, notoriety and publicity, a claim of right, consistent and continuous behavior, and public acquiescence. The reason public performance is critical is that …

Transmission Siting In Deregulated Wholesale Power Markets: Re-Imagining The Role Of Courts In Resolving Federal-State Siting Impasses, Jim Rossi

Vanderbilt Law School Faculty Publications

During most of the twentieth century, state and local regulatory bodies coordinated the siting or power plants and transmission lines. These bodies focused on two important issues: 1) the determination of need, so as to avoid unnecessary economic duplication of costly infrastructure; and 2) environmental protection, so as to provide local land use and other environmental concerns input on the placement of necessary generation and transmission facilities. With the rise of a deregulated wholesale power market, the issue of need is increasingly determined by the market, not regulators. Environmental concerns with siting, however, frequently remain contested - especially locally - …

Enforcing State Law In Congress's Shadow, Robert A. Mikos

Vanderbilt Law School Faculty Publications

This article examines an important yet overlooked form of federal regulation implicating efficiency and fairness concerns - congressional statutes that impose federal sanctions on individuals convicted of state crimes. These sanctions may profoundly influence state criminal proceedings, but the scholarly literature has all but ignored their effects. The article demonstrates that by raising the stakes involved in state cases, federal sanctions may cause defendants to contest state charges more vigorously, thereby producing one of two unintended consequences. First, the sanctions may make it more costly for state prosecutors to enforce state laws. Second, due to resource constraints or dislike of …

The Civilization Of The Criminal Law, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article explores the jurisprudential and practical feasibility of a "preventive" regime of criminal justice. More specifically, it examines an updated version of the type of government intervention espoused four decades ago by thinkers such as Barbara Wooton, Sheldon Glueck, and Karl Menninger. These individuals, the first a criminologist, the latter two mental health professionals, envisioned a system that is triggered by an antisocial act but that pays no attention to desert or even to general deterrence. Rather, the sole goal of the system they proposed is individual prevention through assessments of dangerousness and the provision of treatment designed to …