Law Commons^™

The Puzzle Of State Constitutions, Jim Rossi

Vanderbilt Law School Faculty Publications

In a series of groundbreaking articles published over the past fifteen years, James Gardner has led the charge to make state constitutionalism a part of the constitutional law discussion more generally. His new book, Interpreting State Constitutions: A Jurisprudence of Function in a Federal System, steps beyond his study of specific issues in state constitutionalism to lay out an ambitious theory about how state constitutions should be interpreted based on their function within a federal system. Gardner's book is a significant scholarly effort to take state constitutions seriously, in a way that transcends any one jurisdiction or constitutional provision. Gardner's …

Inside The Administrative State: A Critical Look At The Practice Of Presidential Control, Lisa Schultz Bressman, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

From the inception of the administrative state, scholars have proposed various models of agency decision-making to render such decision-making accountable and effective, only to see those models falter when confronted by actual practice. Until now, the presidential control model has been largely impervious to this pattern. That model, which brings agency decision-making under the direction of the President, has strengthened over time, winning broad scholarly endorsement and bipartisan political support. But it, like prior models, relies on abstractions - for example, that the President represents public preferences and resists parochial pressures - that do not hold up as a factual …

Law And Emotion: A Proposed Taxonomy Of An Emerging Field Special Edition, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Many scholars - from fields as diverse as psychology, law, philosophy, and neuroscience - have begun to study the intersection of emotion and law. I describe that scholarship's development; propose that it is organized along six interrelated but theoretically distinct foci; and suggest directions for future research.

The notion that reason and emotion are cleanly separable - and that law admits only of the former - is deeply engrained, though it recently has come under attack. Law and emotion scholarship proceeds from the beliefs that emotion may be specifically studied, that it is relevant to law, and that its legal …

Patients And Biobanks, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

The question about the privacy of medical information can be stated simply: To what extent can and should patients control what the medical record contains and who has access to it and for what purposes? Patients often have apparently conflicting views on this subject. On the one hand, we, as patients, say that we prize privacy and that we fear that information will be used to harm us. On the other hand, we value the benefits that come from improved communication among providers, such as having our visits covered by third party payers and advances in medical science, which often …

Behavioral Genetics And Crime, In Context, Owen D. Jones

Vanderbilt Law School Faculty Publications

This Article provides an introduction to some of the key issues at the intersection of behavioral genetics and crime.

It provides, among other things, an overview of the emerging points of consensus, scientifically, on what behavioral genetics can and cannot tell us about criminal behavior. It also discusses a variety of important implications (as well as complexities) of attempting to use insights of behavioral genetics in legal contexts.

Reconceptualizing Due Process In Juvenile Justice: Contributions From Law And Social Science, Christopher Slobogin, Mark R. Fondacaro, Tricia Cross

Vanderbilt Law School Faculty Publications

This article challenges the accepted wisdom, at least since the Supreme Court's decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. That means that the central goal in juvenile justice is fundamental fairness, which does not have to be congruent with the …

Reasonableness Review After Booker, Nancy J. King

Vanderbilt Law School Faculty Publications

About a year ago, the Supreme Court in United States v. Booker declared a new standard for the appellate review of federal sentences-reasonableness. Justice Breyer, writing for the Court, asserted reassuringly that the reasonableness standard is not really new at all because judges had been applying it for years to review sentences for crimes lacking specific guidelines, sentences imposed after probation revocation, and, at least until 2003, sentences based upon departures from the recommended guideline range. Like most new legal standards that take shape case-by-case through the appellate process, reasonableness review is developing incrementally, creeping more clearly into view with …

A Cognitive Theory Of Trust, Erin O'Connor

Vanderbilt Law School Faculty Publications

Interpersonal trust is currently receiving widespread attention in the academy. Many legal scholars incorrectly assume that interpersonal trust is an unmitigated good (or bad) and that legal policy should therefore be crafted to maximize (or minimize) trust. A more nuanced understanding of trust indicates instead that it should be promoted or discouraged, depending on the context. Such an understanding needs to reflect the fact that trust and distrust can, and often do, coexist. In most relationships, the parties trust one another with regard to some matters and yet distrust one another with regard to other matters. More specifically, developing a …

Skin-Tone Effects Among African Americans: Perceptions And Reality, Joni Hersch

Vanderbilt Law School Faculty Publications

It is commonly assumed that lighter skinned African Americans receive preferential treatment over darker skinned counterparts. Using individual data from three sources, this paper examines the influence of skin tone on education and on wages. Lighter skin tone has a consistent positive impact on educational attainment but has a less consistent influence on wages. Possible mechanisms by which skin tone differences might influence economic outcomes are investigated, including measurement error, perceived attractiveness, access to integrated schools or work groups, perceived discrimination, and genetic differences. The perception that there is differential treatment on the basis of skin tone is more pronounced …

In Search Of A Unifying Principle For Article V Of The Uniform Trust Code: A Response To Professor Danforth, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

Professor Robert Danforth's exploration of spendthrift trusts in Article Five of the UTC and the Future of Creditors 'Rights in Trusts is a superb piece of work. Professor Danforth analyzes with considerable acuity the ins and outs of the specific rights creditors and beneficiaries of trusts have under the Uniform Trust Code (UTC). His article clearly represents the most detailed analysis of the new Code's approach to spendthrift trusts. Professor Danforth is determined to establish that Article V is not as creditor-friendly as its critics claim.2 His article is essentially an apologia, coupled with some proposed modifications so as to …