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2002

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Vanderbilt Law School Faculty Publications

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Full-Text Articles in Law

Safety At Any Price, W. Kip Viscusi Jan 2002

Safety At Any Price, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

After three decades of experience with extensive government regulation and oversight of health, safety and environmental matters, we have reason to believe that those measures have largely failed to fulfill their initial promise, but many of the initial promises were infeasible goals of a "zero-risk" society. Economic findings with respect to risk-risk tradeoffs highlight the fallacies inherent in government's zero-risk mentality. Agencies that make an unbounded financial commitment to safety frequently are sacrificing individual lives. There continues to be major opportunities to improve regulatory performance by targeting existing inefficiencies and using market mechanisms (rather than strict command-and-control mechanisms) to achieve …

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Public Privacy: Camera Surveillance Of Public Places And The Right To Anonymity, Christopher Slobogin Jan 2002

Public Privacy: Camera Surveillance Of Public Places And The Right To Anonymity, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Government-sponsored camera surveillance of public streets and other public places is pervasive in the United Kingdom and is increasingly popular in American urban centers, especially in the wake of 9/11. Yet legal regulation of this surveillance is virtually non-existent, in part because the Supreme Court has signalled that we have no reasonable expectation of privacy in public places. This article, written for a symposium on the intersection of the Fourth Amendment and technology, contests that stance, at the same time it questions whether the traditional, "probable-cause-forever" view of Fourth Amendment protections makes sense in this technological age. Based on an …

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European Courts, American Rights: Extradition And Prison Conditions, Daniel J. Sharfstein Jan 2002

European Courts, American Rights: Extradition And Prison Conditions, Daniel J. Sharfstein

Vanderbilt Law School Faculty Publications

Part I of this Article discusses the rising number of extradition requests by the United States, the common grounds for denial of extradition, and the controversies that such denials have aroused. Part II examines Soering v. United Kingdom against this background and analyzes its scholarly reception, influence on international and foreign jurisprudence, and lack of effect in the United States. Part III explores the implications of SOERING for defenses to extradition based on prison conditions: whether prison conditions in the United States could conceivably rise to the level of a human rights violation, whether the European Court of Human Rights …

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Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich Jan 2002

Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

The institutional legitmacy of the judiciary depends on the quality of the judgments that judges make. Even the most talented and dedicated judges surely make occasional mistakes, but the public expects judges to avoid making systematic errors that favor particular parties or writing opinions that embed these mistakes into the substantive law. Psychological research on human judgment, however, suggests that this expectation might be unrealistic.

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Joining Forces: The Role Of Collaboration In The Development Of Legal Thought, Chris Guthrie, Tracey E. George Jan 2002

Joining Forces: The Role Of Collaboration In The Development Of Legal Thought, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

For every reason to believe that collaboration has been influential... there is a countervailing reason to believe that it has played a minor role in the evolution of legal thought. It may be easy to bring to mind a handful of prominent collaborations, but most law review articles seem to be written by one author (notwithstanding their lengthy acknowledgment footnotes, suggesting that even single-author works are shaped by the insights and input of multiple scholars). And while it is true that legal scholars often collaborate on their practically oriented works, scholarly articles might not be well suited to collaboration.

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Collective Management Of Copyright And Neighboring Rights In Canada: An International Perspective, Daniel J. Gervais Jan 2002

Collective Management Of Copyright And Neighboring Rights In Canada: An International Perspective, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

It is a generally held view that copyright in civil law countries is a child of the French Revolution and should be considered an inalienable right of the author, a human right in other words. In fact, it is enshrined in the Universal Declaration of Human Rights of 1948. Granted, in several cases the economic component of the right is transferred to, e.g., a publisher or a producer, but it remains, at source, a right of the author, the creator of the protected work (or object of a related right). By contrast, one often hears that, in common law jurisdictions, …

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Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Paul H. Edelman, Suzanna Sherry Jan 2002

Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Paul H. Edelman, Suzanna Sherry

Vanderbilt Law School Faculty Publications

In this essay, Professors Edelman and Sherry explain the mathematics behind the allocation of congressional seats to each state, and survey the different methods of allocation that Congress has used over the years. Using 2000 census figures, they calculate each state's allocation under five different methods, and discuss the advantages and disadvantages of the various methods.

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The Market Value Of Reducing Cancer Risk: Hedonic Housing Prices With Changing Information, W. Kip Viscusi, Ted Gayer, James T. Hamilton Jan 2002

The Market Value Of Reducing Cancer Risk: Hedonic Housing Prices With Changing Information, W. Kip Viscusi, Ted Gayer, James T. Hamilton

Vanderbilt Law School Faculty Publications

In this paper, we use housing price changes occurring after the release of a regulatory agency's environmental risk information to estimate the value people place on cancer risk reduction. Using a large original data set on the repeat sales of houses, matched with detailed data on hazardous waste cancer risk and newspaper publicity, we find that housing prices respond in a rational manner to changes in information about risk. Since the new information indicated that the sites in our sample pose relatively low cancer risk, the informational release led residents to lower their risk beliefs, resulting in an average housing …

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Punitive Damages: How Jurors Fail To Promote Efficiency, W. Kip Viscusi Jan 2002

Punitive Damages: How Jurors Fail To Promote Efficiency, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Evidence of corporate risk-cost balancing often leads to inefficient punitive damages awards, suggesting that jurors fail to base their decision making on principles of economic efficiency. In this Article, Professor Viscusi presents the results of two experiments regarding jury behavior and punitive damages. In the first experiment, Professor Viscusi found that mock jurors punish companies for balancing risk against cost, although award levels vary depending on how the economic analysis is presented at trial. The results of the second experiment suggested that mock jurors are unwilling or unable to follow a set of model jury instructions designed to generate efficient …

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Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman Jan 2002

Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The Supreme Court's recent reversal of the D.C. Circuit's decision in "Whitman v. American Trucking Ass'ns" brings to center stage the critical question for disciplining delegation of lawmaking authority to administrative agencies: Should courts use constitutional law or administrative law for requiring agencies to supply the standards that guide and limit their lawmaking discretion when Congress does not? Professor Bressman argues that "Ashwander v. TVA" provides a resolution. In Ashwander, Justice Brandeis directed courts to refrain from deciding constitutional questions unless absolutely necessary to decide a particular case. Following Justice Brandeis' now famous teaching, courts should refrain from using constitutional …

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Leaving Money On The Table: Do Institutional Investors Fail To File Claims In Securities Class Actions?, Randall Thomas, James D. Cox Jan 2002

Leaving Money On The Table: Do Institutional Investors Fail To File Claims In Securities Class Actions?, Randall Thomas, James D. Cox

Vanderbilt Law School Faculty Publications

In this paper, we examine the role of institutional investors in securities fraud class actions. We begin by surveying the first five years of experience with the Lead Plaintiff provision of the Private Securities Litigation Reform Act (PSLRA). In particular, we look at those cases where the lead plaintiff position has been contested and the outcome of those disputes. We find that institutional investors have been very successful in obtaining the position of lead plaintiff where they have sought it, but that there are a number of cases where they were unsuccessful. In part two of the paper, we dissect …

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Peeping Techno-Toms And The Fourth Amendment: Seeing Through Kyllo's Rules Governing Technological Surveillance, Christopher Slobogin Jan 2002

Peeping Techno-Toms And The Fourth Amendment: Seeing Through Kyllo's Rules Governing Technological Surveillance, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article suggests that the Supreme Court's decision in Kyllo v. United States may not be as protective of the home as it first appears. Kyllo held that use of a thermal imager to detect heat sources inside the home is a fourth amendment search, requiring a warrant and probable cause. But it also held that use of technology that is in "general public use" or that only discovers what a naked eye observer could see from a public vantage point is not a search, even when the location viewed is the interior of the home. This article shows that …

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Trapped By A Paradox: Speculations On Why Female Law Professors Find It Hard To Fit Into Law School Cultures, Beverly I. Moran Jan 2002

Trapped By A Paradox: Speculations On Why Female Law Professors Find It Hard To Fit Into Law School Cultures, Beverly I. Moran

Vanderbilt Law School Faculty Publications

Feminist psychologists postulate that women are more people focused than men and therefore less likely to be attracted to rule oriented cultures that do not take into account personal differences and needs. This work postulates that the opposite is true of males and females who are attracted to law school teaching. Instead of rule oriented men and people oriented women, the legal academy is populated by women who believe that rules are meant to protect the weak against the tyranny of the strong and who then find themselves in "female" cultures ruled by men.

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Regulatory Traffic Jams, J.B. Ruhl, James Salzman, Kai-Sheng Song Jan 2002

Regulatory Traffic Jams, J.B. Ruhl, James Salzman, Kai-Sheng Song

Vanderbilt Law School Faculty Publications

Notwithstanding the tremendous amount of attention environmental agencies, policy analysts, and scholars have paid to "regulatory reinvention," it has been pitched primarily as a refinement of the sanction and facilitation models, and thus intended to be channeled through the firm-specific behavioral responses predicted under the rational polluter and good-apple models. Little attention has been paid to the systems level question. The relevant question under the systems model is whether there is a component of noncompliance that does not respond to sanction and facilitation policies that are intended to illicit firm-specific behavioral responses. To answer this will require (1) identifying instances …

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On Apology And Consilience, Erin O'Connor Jan 2002

On Apology And Consilience, Erin O'Connor

Vanderbilt Law School Faculty Publications

This article chimes in on the current debate about the proper relationship between apology and the law. Several states are considering legislation designed to shield apologies from the courtroom, and mediators are increasing their focus on the importance of apologies. The article develops an evolutionary economic analysis of apology that combines the tools of economics, game theory and biology to more fully understand its role in dispute resolution. When the analysis is applied to the uses of apology before and at trial, a more sophisticated understanding of the relationship between apology and the law emerges.

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The Law And Large Numbers, Paul H. Edelman Jan 2002

The Law And Large Numbers, Paul H. Edelman

Vanderbilt Law School Faculty Publications

Can mathematics be used to inform legal analysis? This is not a ridiculous question. Law has certain superficial resem­blances to mathematics. One might view the Constitution and various statutes as providing "axioms" for a deductive legal sys­tem. From these axioms judges deduce "theorems" consisting of interpretation of these axioms in certain situations. Often these theorems are built on previously "proven" theorems, i.e. earlier decisions of the court. Of course some of the axioms might change, and occasionally a theorem that was once true becomes false; the former is a common feature of mathematics, the latter, though theoretically not possible in …

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The Internationalization Of Intellectual Property: New Challenges From The Very Old And The Very New, Daniel J. Gervais Jan 2002

The Internationalization Of Intellectual Property: New Challenges From The Very Old And The Very New, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Intellectual property concepts embodied in international treaties and national laws date back to the eighteenth century. Many fundamental concepts (originality in copyright law; confusion in trademark law; novelty or inventiveness in patent law) vary from one country's national legislation to another. Yet, many critics of the intellectual property system recognize that solutions to the problems, ranging from database protection to the Internet, should ideally be the same worldwide. In today's globalized economy, it makes sense to adopt rules to protect that take account of the laws and practices of other nations and of the work of international organizations. Protecting only …

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Joining Forces: The Role Of Collaboration In The Development Of Legal Thought, Tracey E. George, Chris Guthrie Jan 2002

Joining Forces: The Role Of Collaboration In The Development Of Legal Thought, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

For every reason to believe that collaboration has been influential... there is a countervailing reason to believe that it has played a minor role in the evolution of legal thought. It may be easy to bring to mind a handful of prominent collaborations, but most law review articles seem to be written by one author (notwithstanding their lengthy acknowledgment footnotes, suggesting that even single-author works are shaped by the insights and input of multiple scholars). And while it is true that legal scholars often collaborate on their practically oriented works, scholarly articles might not be well suited to collaboration.

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How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw, Jr. Jan 2002

How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw, Jr.

Vanderbilt Law School Faculty Publications

Professors George and Pushaw review Maxwell L. Stearns’ book, “Constitutional Process: A Social Choice Analysis of Supreme Court Decision-making.” In his book, Stearns demonstrates that the U.S. Supreme Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing “social choice” economic theory, Professor Stearns argues that the Court strives to formulate rules that promote rationality and fairness. Perhaps the greatest strength of Stearns’ book is that he presents a grand unified theory of the Court’s rules of constitutional process and the resulting development of doctrine. This strength can also be a weakness, …

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On Legal Interpretations Of The Condorcet Jury Theorem, Paul H. Edelman Jan 2002

On Legal Interpretations Of The Condorcet Jury Theorem, Paul H. Edelman

Vanderbilt Law School Faculty Publications

There has been a spate of interest in the application of the Condorcet Jury Theorem to issues in the law. This theorem holds that a majority vote among a suitably large body of voters, all of whom are more likely than not to vote correctly, will almost surely result in the correct outcome. Its uses have ranged from estimating the correct size of juries to justifying the voting of creditors in Chapter 11 reorganizations. While the mathematics is unassailable, the legal interpretation of the conclusion is dependent on the model of probability one uses when invoking the assumption that the …

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The Forest And The Trees, Lisa Schultz Bressman Jan 2002

The Forest And The Trees, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

Ask those who carefully follow the Supreme Court, and they will tell you that--for good or bad, depending on their perspective--the current Supreme Court has reduced to near rubble the metaphorical wall separating church and state.

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Irresponsibility Breeds Contempt, Suzanna Sherry Jan 2002

Irresponsibility Breeds Contempt, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Everyone is picking on the Supreme Court these days. To be sure, some of the criticism is warranted: the Court has butchered history - to say nothing of constitutional text - in its attempt to interpret the Eleventh Amendment, and betrayed its own federalism principles by second-guessing a state court's interpretation of state law (and applying a constitutional test explicitly limited to the case before it). But the current attacks on the Court go well beyond individual cases or doctrines, and are reminiscent of Jeffersonian jabs at John Marshall or the John Birch Society's "Impeach Ead Warren" campaign. Pointing to …

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Haste Makes Waste: Congress And The Common Law In Cyberspace, Suzanna Sherry Jan 2002

Haste Makes Waste: Congress And The Common Law In Cyberspace, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Every time a new technology creates legal problems, we face in a particular context the general question of relative institutional competence. Do we turn first to the judiciary, allowing time for a gradual solution derived from common law methods, or do we look instead to the federal legislature for an instant global solution? This Article endorses the judicial approach, suggesting that Congress is particularly likely to err when rapidly changing technology creates a perceived crisis, and when the strongest reasons for not legislating are abstract and inchoate. The Article examines three legal questions raised by computer technology, two the subject …

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Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Suzanna Sherry, Paul H. Edelman Jan 2002

Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Suzanna Sherry, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In this essay, Professors Edelman and Sherry explain the mathematics behind the allocation of congressional seats to each state, and survey the different methods of allocation that Congress has used over the years. Using 2000 census figures, they calculate each state's allocation under five different methods, and discuss the advantages and disadvantages of the various methods.

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Juries, Hindsight, And Punitive Damages Awards: Reply To Richard Lempert, W. Kip Viscusi Jan 2002

Juries, Hindsight, And Punitive Damages Awards: Reply To Richard Lempert, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Richard Lempert, a Professor of Law and Sociology at the University of Michigan criticized our recent article on judge and jury performance of a punitive damage judgment task, calling it a "failure of a social science case for change." Professor Lempert's depiction of our research is confusing and incorrect. However, because we believe a reading of only the Lempert critique can lead to a substantial misunderstanding of our research and its implications, we have written a reply.

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A Manifesto For The Radical Middle, J.B. Ruhl Jan 2002

A Manifesto For The Radical Middle, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This article advocates an active, concerted strategy for staking out the middle ground in environmental policy. The middle ground - the domain of "middle of the roaders" - has conventionally been defined by compromise, and as a result lacks any defining content and principles. I propose an aggressive middle that uses enriched sources of information, agency professional judgment, and transparent adaptive management as its components.

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The Electric Deregulation Fiasco: Looking To Regulatory Federalism To Promote A Balance Between Markets And The Provision Of Public Goods, Jim Rossi Jan 2002

The Electric Deregulation Fiasco: Looking To Regulatory Federalism To Promote A Balance Between Markets And The Provision Of Public Goods, Jim Rossi

Vanderbilt Law School Faculty Publications

The Essay uses three recent books - two by a historians and one by an economist - to address the electric power deregulation fiasco in the U.S. It argues that public law has an important role to play in deregulated markets. At least in part, the essay argues, public law is to blame for the failure of deregulation in California. At the same time, the Essay suggests, without clarification of jurisdictional responsibility and incentives in public law, adoption of effective competitive market reforms to the electric power industries will not succeed in the future.

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Democracy's Baby Blocks: South Africa's Electoral Commissions, Vijay Padmanabhan Jan 2002

Democracy's Baby Blocks: South Africa's Electoral Commissions, Vijay Padmanabhan

Vanderbilt Law School Faculty Publications

Like many other transitional democracies, South Africa has chosen to run its two national postapartheid elections by an independent electoral commission, not by the existing government. Although the results were widely considered legitimate, the perception of legitimacy was due in large part to the public's low expectations. To keep the public confidence, and to avoid the sorts of large-scale breakdowns in the electoral process that might undermine it, the current Electoral Commission must embrace major reforms. One of the Electoral Commission's most pressing problems is the fact that opposition parties believe it is strongly biased in favor of the ruling …

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Procedural Justice Research And The Paucity Of Trials, Chris Guthrie Jan 2002

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Vanderbilt Law School Faculty Publications

Professor Deborah Hensler tells an important cautionary tale about mandatory mediation in her thoughtful and provocative contribution to this volume. In Suppose It's Not True: Challenging Mediation Ideology, Hensler observes that courts are now requiring litigants to mediate civil cases "on the grounds that litigants prefer [mediation] to traditional litigation," yet there is "a long line of social psychological research on individuals' evaluations of different dispute resolution procedures" consistent with the "idea that litigants might prefer adversarial litigation and adjudication" to mediation.' Hensler acknowledges that "some experimental research has found that subjects prefer mediation," but she argues that "the empirical …

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Little Boxes: Can Optimal Commodity Tax Methodology Save The Debt-Equity Distinction?, Herwig J. Schlunk Jan 2002

Little Boxes: Can Optimal Commodity Tax Methodology Save The Debt-Equity Distinction?, Herwig J. Schlunk

Vanderbilt Law School Faculty Publications

Optimal commodity tax methodology has been proposed as a way of making difficult line drawing decisions in the income tax. This paper explores some practical difficulties with the approach, and concludes that in one area - the debt-equity divide - the approach is unlikely to prove useful over any significant time horizon.

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