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Vanderbilt Law School Faculty Publications

2001

Articles 1 - 30 of 38

Full-Text Articles in Law

The Evolution Of Irrationality, Owen D. Jones Jan 2001

The Evolution Of Irrationality, Owen D. Jones

Vanderbilt Law School Faculty Publications

The place of the rational actor model in the analysis of individual and social behavior relevant to law remains unresolved. In recent years, scholars have sought frameworks to explain: a) disjunctions between seemingly rational behavior and seemingly irrational behavior; b) the origins of and influences on law-relevant preferences, and c) the nonrandom development of norms. This Article explains two components of an evolutionary framework that, building from accessible insights of behavioral biology, can encompass all three. The components are: "time-shifted rationality" and "the law of law's leverage."

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Megafirms, Randall Thomas, Stewart J. Schwab, Robert G. Hansen Jan 2001

Megafirms, Randall Thomas, Stewart J. Schwab, Robert G. Hansen

Vanderbilt Law School Faculty Publications

This paper documents and explains the amazing growth of the largest firms in law, accounting, and investment banking. Scholars to date have used various supply-side theories to explain the growth, and have generally examined only one industry at a time. We give the first demand-side explanation of firm growth, and show how the explanation is similar for firms in all "project" industries. We show that law plays an important role in determining industry structure. Among the areas we cover are the growth of Multi-Disciplinary Practice firms. We argue that the issues surrounding MDPs can best be understood by looking more …

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The Social Meaning Of Environmental Command And Control, Michael P. Vandenbergh Jan 2001

The Social Meaning Of Environmental Command And Control, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

...This essay draws on the new social norms literature to examine one of the possible reasons for the public misperceptions about the sources of the remaining environmental problems. The essay suggests that one of the insights of the social norms literature, the influence of social meaning on social norms, may shed light on these misperceptions and may enrich our understanding of the difficulties encountered by efforts to control second generation sources. In particular, this essay examines two principal social meanings that appear to have been conveyed by the command and control system. The first social meaning is the conventional notion …

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Evolutionary Analysis In Law: Some Objections Considered, Owen D. Jones Jan 2001

Evolutionary Analysis In Law: Some Objections Considered, Owen D. Jones

Vanderbilt Law School Faculty Publications

This Article appears in a special issue of the Brooklyn Law Review on DNA: Lessons from the Past - Problems for the Future. It first addresses why law needs insights from behavioral biology, and then identifies and responds to a variety of structural and conceptual barriers to such evolutionary analysis in law.

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Time-Shifted Rationality And The Law Of Law's Leverage: Behavioral Economics Meets Behavioral Biology, Owen D. Jones Jan 2001

Time-Shifted Rationality And The Law Of Law's Leverage: Behavioral Economics Meets Behavioral Biology, Owen D. Jones

Vanderbilt Law School Faculty Publications

A flood of recent scholarship explores legal implications of seemingly irrational behaviors by invoking cognitive psychology and notions of bounded rationality. In this article, I argue that advances in behavioral biology have largely overtaken existing notions of bounded rationality, revealing them to be misleadingly imprecise - and rooted in outdated assumptions that are not only demonstrably wrong, but also wrong in ways that have material implications for subsequent legal conclusions. This can be remedied. Specifically, I argue that behavioral biology offers three things of immediate use. First, behavioral biology can lay a foundation for both revising bounded rationality and fashioning …

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Damages To Deter Police Shootings, W. Kip Viscusi, S. Jeffrey Jan 2001

Damages To Deter Police Shootings, W. Kip Viscusi, S. Jeffrey

Vanderbilt Law School Faculty Publications

Many fatal shootings by police are not warranted. These shootings impose losses on the victims and their families and reflect the failure of existing administrative and legal restraints to deter these unwarranted shootings. This Article proposes a revamping of existing incentives to both provide more adequate compensation to the victims' families and to establish levels of deterrence that are sufficient to curtail unjust fatalities. There are legal criteria for what level of force is "reasonable," but determining reasonableness in practice may be difficult. Practical guidance such as the "21-foot rule" for the threat to warrant a shooting is often problematic. …

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Should Shareholders Have A Greater Say Over Executive Pay??, Randall S. Thomas, Brian R. Cheffins Jan 2001

Should Shareholders Have A Greater Say Over Executive Pay??, Randall S. Thomas, Brian R. Cheffins

Vanderbilt Law School Faculty Publications

Executive pay arrangements in Britain's publicly quoted companies have been subjected to much criticism in recent years. Proposals that shareholders should have a greater direct say over managerial remuneration have been a by-product of the concerns expressed. Debate on this point, however, has been largely speculative. This is because there is little evidence available in the United Kingdom indicating how shareholders would exercise any new powers they might be given. This paper addresses the evidentiary gap by drawing upon the experience in the United States, where empirical work indicates that shareholder voting only operates as a potential check when pay …

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Essential Elements, Nancy J. King, Susan Riva Klein Jan 2001

Essential Elements, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

The Court has struggled for well over a century with the issue of who has final authority to define what is a "crime" for purposes of applying procedural protections guaranteed by the Constitution in criminal cases. Just as labeling an action "civil" may allow the government to circumvent constitutional criminal procedure entirely, so labeling a fact an "affirmative defense" or a "sentencing factor" instead of an element of the offense may allow the government to escape constitutional criminal procedure selectively, bypassing the burden of proof, pleading, and jury requirements that would otherwise apply to an offense element. In its decision …

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Inside The Judicial Mind, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich Jan 2001

Inside The Judicial Mind, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

The quality of the judicial system depends upon the quality of decisions that judges make. Even the most talented and dedicated judges surely make occasional mistakes, but the public understandably expects judges to avoid systematic errors. This expectation, however, might be unrealistic. Psychologists who study human judgment and choice have learned that people frequently fall prey to cognitive illusions that produce systematic errors in judgment. Even though judges are experienced, well-trained, and highly motivated decision makers, they might be vulnerable to cognitive illusions. We report the results of an empirical study designed to determine whether five common cognitive illusions (anchoring, …

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Transmissions Of Music On The Internet: An Analysis Of The Copyright Laws Of Canada, France, Germany, Japan, The United Kingdom, And The United States, Daniel J. Gervais Jan 2001

Transmissions Of Music On The Internet: An Analysis Of The Copyright Laws Of Canada, France, Germany, Japan, The United Kingdom, And The United States, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article examines the status of copyright laws in several countries as they pertain to transmissions of music on the Internet. Because the exact legal ramifications of music transmissions over the Internet are currently unclear, the Author compares copyright laws of six major markets and examines the potential application of the copyright laws and other rights that may apply. The Article also discusses rules concerning which transborder transmissions are likely to be covered by a country's national laws, as well as specific rules applying to the liability of intermediaries. Next, the Article summarizes the comparative findings and discusses the relevant …

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Court Fixing, Tracey E. George Jan 2001

Court Fixing, Tracey E. George

Vanderbilt Law School Faculty Publications

This Article critically examines the existing social science evidence on the relative importance of various individual factors on judicial behavior and adds to that evidence by considering the influence of prior academic experience on judges. Researchers have not focused much attention on the importance of a judge's background as a full-time law professor and legal scholar, although more than thirteen percent of courts of appeals appointees were former law professors. Franklin Roosevelt and Ronald Reagan both viewed the federal judiciary (particularly the Supreme Court and the Courts of Appeals) as integral to their policy agendas, and both further believed that …

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The Challenge Of Punitive Damages Mathematics, W. Kip Viscusi Jan 2001

The Challenge Of Punitive Damages Mathematics, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Proposals to provide juries with specific numerical instructions for setting punitive damages should bring greater rationality to punitive damages awards. This approach is tested using evidence from 353 jury-eligible citizens who applied these formulas to a series of legal cases. Few respondents assessed the correct values of punitive damages from the standpoint of deterrence. Anchoring effects of appeals by a plaintiffs lawyer or media coverage of similar awards lead respondents to abandon the punitive damages formula and set punitive damages based on the anchor. Minorities and the less well educated were particularly unwilling or unable to apply the recommended punitive …

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Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng Jan 2001

Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This Note has examined the consequences of a shift in the equal protection context - a move from a traditional particularized harm perspective to a constitutional risk perspective focused on systemic harms. It has also acknowledged the significant remedial difficulties associated with constitutional risk, but by focusing on discretion as the source of most equal protection risks, this Note has proposed a moderate doctrinal change: discretionary safeguards. To be sure, this Note leaves the project substantially incomplete. Constitutional risk's focus on statistical evidence requires careful discussion of the pitfalls judges face in this area and of how they can develop …

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Supreme Court Monitoring Of The United States Courts Of Appeals En Banc, Tracey E. George, Michael E. Solimine Jan 2001

Supreme Court Monitoring Of The United States Courts Of Appeals En Banc, Tracey E. George, Michael E. Solimine

Vanderbilt Law School Faculty Publications

This article considers systematically whether the Supreme Court is more likely to review an en banc court of appeals decision than a panel decision. First, we consider Supreme Court review of en banc cases during the Rehnquist Court. Then, in a multivariate empirical analysis of a three-circuit subset of those cases, we control for other variables found to influence the Court's certiorari decision, such as Solicitor General or amicus curiae support for the certiorari petition, a dissent from the court of appeal's opinion, an outcome contrary to the Court's ideological composition, and an intercircuit conflict. The discussion is situated in …

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Cigarette Smokers As Job Risk Takers, Joni Hersch, W. Kip Viscusi Jan 2001

Cigarette Smokers As Job Risk Takers, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Using a large data set, the authors find that smokers select riskier jobs, but receive lower total wage compensation for risk than do nonsmokers. This finding is inconsistent with conventional models of compensating differentials. The authors develop a model in which worker risk preferences and job safety performance lead to smokers facing a flatter market offer curve than nonsmokers. The empirical results support the theoretical model. Smokers are injured more often controlling for their job's objective risk and are paid less for these risks of injury. Smokers and nonsmokers, in effect, are segmented labor market groups with different preferences and …

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The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie Jan 2001

The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie

Vanderbilt Law School Faculty Publications

Riskin's categorization of mediation has engendered much debate among academics and practitioners. Although most in the mediation community accept Riskin's positive assertion that mediation as currently practiced includes both facilitation and evaluation, a vocal group of purist critics rejects Riskin's pluralist view of mediation on normative grounds. These purist critics -- including such prominent mediator-scholars as Professors Kim Kovach, Lela Love," and Josh Stulberg -- argue that mediation is in fact, and should be, solely a facilitative process "designed to capture the parties' insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes." For …

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The Cashless Corporate Tax, Herwig J. Schlunk Jan 2001

The Cashless Corporate Tax, Herwig J. Schlunk

Vanderbilt Law School Faculty Publications

Proposals for reforming the federal corporate income tax are neverending and ever-multiplying. They range from those that merely tinker around the edges, such as most recent proposals attacking the various perceived abuses that masquerade under the moniker "corporate tax shelter," to various integration approaches that arguably would gut the enterprise of a corporate income tax altogether. Since everything and the kitchen sink is at least theoretically in play, it seems appropriate to add this modest proposal, which I call the "cashless corporate tax" (CCT). As described below, the CCT is a "tax" that would replace the current corporate income tax-defined …

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Apples For Oranges, J.B. Ruhl, James Salzman Jan 2001

Apples For Oranges, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

Over the last decade, there has been a sea change in environmental law and policy, marked by growing interest in market-based instruments of environmental protection. In particular, approaches that explicitly commodify environmental impacts by creating markets for their sale are on the rise. These environmental trading markets (ETMs) now operate in a range of regulatory settings where parties exchange credits to emit air pollutants, extract natural resources, and develop habitat. In fact, every major environmental policy review in the last five years has called for even greater use of ETMs. Markets for environmental commodities represent the new wave of environmental …

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Jurors, Judges, And The Mistreatment Of Risk By The Courts, W. Kip Viscusi Jan 2001

Jurors, Judges, And The Mistreatment Of Risk By The Courts, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

A sample of almost 500 jury-eligible citizens considered a series of experimental situations involving accidents. The juror sample did not properly apply negligence rules, as their errors were particularly great for low-probability, large-loss cases. They also penalized corporations for undertaking corporate risk analyses that seek to trade off cost versus risk reduction benefits. Jurors' damages assessments were also more prone to error than were responses by a sample of state judges. Judges were less prone to erroneous risk beliefs and less subject to the zero-risk mentality.

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An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin Jan 2001

An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article takes a comparative and empirical look at two of the most significant methods of police investigation: searches for and seizures of tangible evidence and interrogation of suspects. It first compares American doctrine regulating these investigative tools with the analogous rules predominant in Europe (specifically, England, France and Germany). It then discusses research on the American system that sheds light on the relative advantages and disadvantages of the two regulatory systems. More often than not, the existing data call into question preconceived notions of what "works." In particular, American reverence for search warrants, the exclusionary rule, and "Miranda" warnings …

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Integrating Ecosystem Services Into Environmental Law: A Case Study Of Wetlands Mitigation Banking, J.B. Ruhl, Juge R. Gregg Jan 2001

Integrating Ecosystem Services Into Environmental Law: A Case Study Of Wetlands Mitigation Banking, J.B. Ruhl, Juge R. Gregg

Vanderbilt Law School Faculty Publications

This article argues that Section 404 of the Clean Water Act provides ample statutory authority for the Corps of Engineers and EPA to integrate ecosystem service values and impacts into wetlands impact and mitigation decisions.

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Bargaining In The Shadow Of Administrative Procedure: The Public Interest In Rulemaking Settlement, Jim Rossi Jan 2001

Bargaining In The Shadow Of Administrative Procedure: The Public Interest In Rulemaking Settlement, Jim Rossi

Vanderbilt Law School Faculty Publications

This article addresses problems associated with settlement of appeals of legislative rules adopted by administrative agencies. Settlement is a common and important tool for avoiding litigation, but it also raises potential problems for administrative law. In particular, to the extent that an appellate litigation posture poses a principal/agent gap, an agency's incentives to settle may lead it to abandon its public interest goals, otherwise protected by statutory mandates as well as administrative procedures. The problem is most salient when an agency agrees to a substantive policy position in a settlement, committing the agency to later implement a policy course. To …

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Respecting Deference: Conceptualizing Skidmore Within The Architecture Of Chevron, Jim Rossi Jan 2001

Respecting Deference: Conceptualizing Skidmore Within The Architecture Of Chevron, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article addresses critically the implications of the U.S. Supreme Court's recent decision in Christensen v. Harris County, 120 S.Ct. 1655 (2000), for standards of judicial review of agency interpretations of law. Christensen is a notable case in the administrative law area because it purports to clarify application of the deference doctrine first articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944). By reviving this doctrine, the case narrows application of the predominant approach to deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), thus reducing the level of deference in …

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Bibliography Of Tax Articles In High Prestige Non-Specialized Law Journals: A Comparison Of Australia, Britain, Canada And The United States 1954-2001, Beverly I. Moran Jan 2001

Bibliography Of Tax Articles In High Prestige Non-Specialized Law Journals: A Comparison Of Australia, Britain, Canada And The United States 1954-2001, Beverly I. Moran

Vanderbilt Law School Faculty Publications

The bibliography surveys all tax articles (but not Notes) from 1954 to 2001 in high prestige law journals in the United States, United Kingdom, Australia and Canada. The bibliography compares number of articles produced in each country and also shows what areas of interest dominate in each market. For example, Canadian journal produce more scholarship on Comparative Taxation while Australian journals are more likely to publish in the area of Evasion and Avoidance.

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Director Accountability And The Mediating Role Of The Corporate Board, Margaret M. Blair Jan 2001

Director Accountability And The Mediating Role Of The Corporate Board, Margaret M. Blair

Vanderbilt Law School Faculty Publications

One of the most pressing questions facing both corporate scholars and business people today is how corporate directors can be made accountable. Before addressing this issue, however, it seems important to consider two antecedent questions: To whom should directors be accountable? And for what? Contemporary corporate scholarship often starts from a "shareholder primacy" perspective that holds that directors of public corporations ought to be accountable only to the shareholders, and ought to be accountable only for maximizing the value of the shareholders' shares. This perspective rests on the conventional contractarian assumption that the shareholders are the sole residual claimants and …

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Litigating Challenges To Executive Pay: An Exercise In Futility?, Randall Thomas, Kenneth J. Martin Jan 2001

Litigating Challenges To Executive Pay: An Exercise In Futility?, Randall Thomas, Kenneth J. Martin

Vanderbilt Law School Faculty Publications

This paper is an empirical analysis of plaintiffs' success rates in executive compensation litigation. Using data from publicly available files, this study examines a sample of 124 cases where shareholders have challenged executive compensation levels and practices at public and closely held corporations. This data set shows that shareholders are successful in at least some stage of this litigation in a significant percentage of these cases. Our most robust result is that plaintiffs win a greater percentage of the time in compensation cases against closely held companies than against publicly held companies. This result is consistent for every stage of …

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Too Clever By Half: The Problem With Novelty In Constitutional Law, Suzanna Sherry Jan 2001

Too Clever By Half: The Problem With Novelty In Constitutional Law, Suzanna Sherry

Vanderbilt Law School Faculty Publications

As Robert Bennett's article illustrates, the "counter-majoritarian difficulty" remains--some forty years after its christening--a central theme in constitutional scholarship. [See Robert W. Bennett, "Counter-Conversationalism and the Sense of Difficulty", 95 NW. U. L. Rev. 845 (2001) ] Indeed, one might say that reconciling judicial review and democratic institutions is the goal of almost every major constitutional scholar writing today, including Bennett himself. I have suggested elsewhere that scholars as diverse as Richard Epstein, Antonin Scalia, and Robert Bork on the one hand, and Akhil Amar, Bruce Ackerman, and Ronald Dworkin on the other, are all motivated by a desire to …

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Through The Lens Of The Sequence, Ellen Wright Clayton Jan 2001

Through The Lens Of The Sequence, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

The completion of the rough draft of the human genome is a scientific feat worthy of celebration. But the media attention that has been devoted to the Human Genome Project demonstrates that most people are not as interested in what the sequence is as in what it means for individuals and for society, for good or for ill. My purpose in writing this essay is to discuss how the project was conducted here in the United States, and some of the implications of knowing the sequence (or more aptly, a sequence).

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Brain Plasticity And Spanish Moss In Biolegal Analysis, Erin O'Connor Jan 2001

Brain Plasticity And Spanish Moss In Biolegal Analysis, Erin O'Connor

Vanderbilt Law School Faculty Publications

The field of law and biology is growing rapidly, and the good scholarship typically has much to do with Owen Jones... The general message that Professor Jones disseminates in his articles is important. Law cannot reach peak effectiveness unless it is built on a sound behavioral model, and no model of human nature is ultimately sound unless it is consistent with the insights from behavioral biology. And the beauty of behavioral biology, for one who uses behavioral models, is that it tells us something about human tastes, preferences, and cognitive biases and limitations.

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Whither The Race? A Comment On The Effects Of The Delawarization Of Corporate Reorganizations, Randall Thomas, Robert K. Rasmussen Jan 2001

Whither The Race? A Comment On The Effects Of The Delawarization Of Corporate Reorganizations, Randall Thomas, Robert K. Rasmussen

Vanderbilt Law School Faculty Publications

Recent empirical work has demonstrated that large, publicly held firms tend to file for bankruptcy in Delaware. In our previous work, we have documented this trend, and argued that it may be efficient for prepackaged bankruptcies, while it unclear if it is efficient for traditional Chapter 11 cases. In this piece, we respond to LoPucki and Kalin's assertion that Delaware bankruptcy court performs worse than others. They base this claim on the observation that firms that file for bankruptcy in Delaware are more likely to file for bankruptcy a second time than are firms that file in another jurisdiction. We …

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