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Vanderbilt Law School Faculty Publications

Series

2004

Articles 1 - 30 of 41

Full-Text Articles in Law

Beyond Blakely, Nancy J. King, Susan Riva Klein Jan 2004

Beyond Blakely, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

Federal criminal sentencing in the wake of Blakely v. Washington is, to put it charitably, a mess. In holding that Blakely's sentence under the Washington State Sentencing Guidelines was imposed in a manner inconsistent with the Sixth Amendment right to a jury trial, the decision threatens the operation of the Federal Sentencing Guidelines and the presumptive sentencing systems in fourteen states. In Parts I and II of this article, we address how Blakely has affected the Federal Sentencing Guidelines, and how assistant U.S. attorneys, federal public defenders, and district and appellate court judges might proceed in a post-Blakely world. In …

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Induced Litigation, Chris Guthrie, Tracey E. George Jan 2004

Induced Litigation, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

If "justice delayed" is "justice denied,"justice is often denied in American courts. Delay in the courts is a "ceaseless and unremitting problem of modem civil justice" that "has an irreparable effect on both plaintiffs and defendants." To combat this seemingly intractable problem, judges and court administrators routinely clamor for additional judicial resources to enable them to manage their dockets more "effectively and efficiently." By building new courthouses and adding new judgeships, a court should be able to manage its caseload more efficiently. Trial judges should be able to hold motion hearings, host settlement conferences, and conduct trials in a timely …

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The New Look Of Shareholder Litigation: Acquisition-Oriented Class Actions, Randall Thomas, Robert B. Thompson Jan 2004

The New Look Of Shareholder Litigation: Acquisition-Oriented Class Actions, Randall Thomas, Robert B. Thompson

Vanderbilt Law School Faculty Publications

Shareholder litigation is the most frequently maligned legal check on managerial misconduct within corporations. Derivative lawsuits and federal securities class actions are portrayed as slackers in debates over how best to control the managerial agency costs created by the separation of ownership and control in the modern corporation. In each instance, early hopes these suits would effectively monitor managerial misconduct have been replaced with concerns about the size of the litigation agency costs of such representative litigation, which can arise when a self-selected plaintiff's attorney and her client that are appointed to pursue the claims of an entire class of …

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The Divergence Of Constitutional And Statutory Interpretation, Kevin M. Stack Jan 2004

The Divergence Of Constitutional And Statutory Interpretation, Kevin M. Stack

Vanderbilt Law School Faculty Publications

There is a peculiar point of agreement between prominent defenders of originalist and dynamic interpretive methods, that their preferred interpretive approach applies not just to statutes or to the Constitution, but to both. In this Article, I challenge this shared position - as represented by Justice Antonin Scalia's originalist textualism and Professor William Eskridge's dynamic interpretive theory. I argue that the democratic and rule-of-law values that these theories invoke in fact suggest that different interpretive approaches govern constitutional and statutory interpretation. I contend, first, that disjunctures between the democratic justification for originalism in constitutional and statutory interpretation reveal the distinct …

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Is Atkins The Antithesis Or Apotheosis Of Anti-Discrimination Principles? Sorting Out The Groupwide Effects Of Exempting People With Mental Retardation From The Death Penalty, Christopher Slobogin Jan 2004

Is Atkins The Antithesis Or Apotheosis Of Anti-Discrimination Principles? Sorting Out The Groupwide Effects Of Exempting People With Mental Retardation From The Death Penalty, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In "Atkins v. Virginia", the U.S. Supreme Court held that people with mental retardation may not be executed. z Many advocates for people with disability cheered the decision, because it provides a group of disabled people with protection from the harshest punishment imposed by our society. But other disability advocates were dismayed by "Atkins", not because they are fans of the death penalty, but because they believe that declaring disabled people ineligible for a punishment that is accorded all others denigrates disabled people as something less than human. If people with disability are to be treated equally, these dissenters suggest, …

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Teaching A Course On Regulation Of The Police (With A Special Focus On The Sixth Amendment), Christopher Slobogin Jan 2004

Teaching A Course On Regulation Of The Police (With A Special Focus On The Sixth Amendment), Christopher Slobogin

Vanderbilt Law School Faculty Publications

The organizers of this symposium gave us the choice of writing about effective assistance of counsel or about teaching criminal procedure. I've decided to do both. This article discusses teaching the criminal procedure course most often called "Police Practices," for which I write a textbook entitled Regulation of Police Investigation: Legal, Historical, Empirical and Comparative Materials.' Borrowing heavily from the Teacher's Manual for that book, the first part of this article describes my general philosophy for teaching the course. The rest of the article illustrates this philosophy by describing how I teach students about the application of the Sixth Amendment …

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Explaining The International Ceo Pay Gap: Board Capture Or Market Driven?, Randall Thomas Jan 2004

Explaining The International Ceo Pay Gap: Board Capture Or Market Driven?, Randall Thomas

Vanderbilt Law School Faculty Publications

If we look at convergence through the lens of the Risk Adjustment Theory, then international pay convergence will only occur if U.S. and foreign CEOs' firm-specific risk levels converge. Empirically, this is a difficult claim to test because of the paucity of data available on CEOs' individual wealth levels and stockholdings. The one component we can most easily observe, stock option usage, is presently quite different, with U.S. levels far exceeding those abroad. For the near future, this trend seems likely to continue, making it difficult to forecast convergence any time soon. The international executive pay gap is one of …

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Reforming Corporate Governance: What History Can Teach Us, Margaret M. Blair Jan 2004

Reforming Corporate Governance: What History Can Teach Us, Margaret M. Blair

Vanderbilt Law School Faculty Publications

In this Article, I turn to the history of corporate law for insight into the role that the corporate form plays in the organization of business enterprises. I then draw implications from this history for thinking about circumstances and situations in which corporate directors should have unimpeded control over business decisions, versus situations in which shareholders should have more input and control over business decisions. In Part I, I review historical evidence of the rapid growth in demand for the corporate form to organize businesses in the United States during the early nineteenth century. I compare the law that governed …

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The Globalization (Americanization?) Of Executive Pay, Randall Thomas, Brian R. Cheffins Jan 2004

The Globalization (Americanization?) Of Executive Pay, Randall Thomas, Brian R. Cheffins

Vanderbilt Law School Faculty Publications

In the United States, the remuneration packages of top executives are characterized by a strong emphasis on pay-for-performance and by a highly lucrative "upside." There is much discussion of the possibility that executive pay practices will globalize in accordance with this pattern. This Article assesses whether such convergence is likely to occur. After surveying briefly the key components of managerial remuneration and after examining the essential elements of the "U.S. pay paradigm," the Article considers market-oriented dynamics that could constitute a "global compensation imperative." These include wider dispersion of share ownership, more cross-border hiring of executives, growing international merger and …

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Warning: Labeling Constitutions May Be Hazardous To Your Regime, Suzanna Sherry Jan 2004

Warning: Labeling Constitutions May Be Hazardous To Your Regime, Suzanna Sherry

Vanderbilt Law School Faculty Publications

What do the following cases have in common? In Boy Scouts of America v. Dale,2 the Court upheld the right of a private organization to ignore a generally applicable state statute prohibiting discrimination on the basis of sexual orientation. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,3 the Court upheld the right of parade organizers to exclude gay-rights banners. In Zelman v. Simmons-Harri4s , the Court permitted government funding of religious schools through vouchers issued to low-income parents. And in Rosenberger v. Rector and Visitors of the University of Virginia, the Court required state funding of the …

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Hard Cases Make Good Judges, Suzanna Sherry Jan 2004

Hard Cases Make Good Judges, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Not every constitutional case requires recourse to first principles, and indeed, most require more subtlety than such recourse can produce. The Rehnquist Court's free speech cases provide an example of the benefits of a more nuanced and pragmatist approach in the context of a mature jurisprudence. Rigid tiers of scrutiny are simply not flexible enough to accommodate both the legitimate goals of the legislature and the need to guard against illicit attempts at pure censorship of unpopular ideas. Some form of balancing-whether identified as such or simply evident in the application of intermediate scrutiny-is necessary to avoid either too much …

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Prescribing The Right Dose Of Peer Review For The Endangered Species Act, J.B. Ruhl Jan 2004

Prescribing The Right Dose Of Peer Review For The Endangered Species Act, J.B. Ruhl

Vanderbilt Law School Faculty Publications

....what I examine here is whether scientific-style peer review, depending on how it is dosed out, could be counterproductive for environmental law.The use of peer review as a component of regulatory procedure has not received much discrete attention in environmental law literature, but it is truly the sleeping dog of the "sound science" movement. Understanding this concept requires some background on science and administrative law. The "sound science" movement, as its name suggests, advocates that environmental law decisions be based principally on scientific information and conclusions that have been derived through the rigorous, unbiased practice of science. Science is generally …

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United States' Trade Policy And The Exportation Of United States' Culture, Beverly I. Moran Jan 2004

United States' Trade Policy And The Exportation Of United States' Culture, Beverly I. Moran

Vanderbilt Law School Faculty Publications

The United States Trade Representative and the policies that he (or she) attempt to impose on our trading partners have the serious and perhaps unintended effect of destroying local culture particularly in the area of film production.

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The Impact Of The Impact Bias On Negotiation, Chris Guthrie, David Sally Jan 2004

The Impact Of The Impact Bias On Negotiation, Chris Guthrie, David Sally

Vanderbilt Law School Faculty Publications

The theory of principled or problem-solving negotiation assumes that negotiators are able to identify their interests (or what they really want) in a negotiation. Recent research on effective forecasting calls this assumption into question. In this paper, which will appear in a forthcoming symposium issue of the Marquette Law Review devoted to the Emerging Interdisciplinary Canon of Negotiation, we explore the impact of this research on negotiation and lawyering.

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Heuristics And Biases At The Bargaining Table, Chris Guthrie, Russell Korobkin Jan 2004

Heuristics And Biases At The Bargaining Table, Chris Guthrie, Russell Korobkin

Vanderbilt Law School Faculty Publications

In this essay, written for a symposium on The Emerging Interdisciplinary Cannon of Negotiation, we examine the role of heuristics in negotiation from two vantage points. First, we identify the way in which some common heuristics are likely to influence the negotiator's decision-making processes. Namely, we discuss anchoring and adjustment, availability, self-serving evaluations, framing, the status quo bias, contrast effects, and reactive devaluation. Understanding these common heuristics and how they can cause negotiators' judgments and choices to deviate from the normative model can enable negotiators to reorient their behavior so it more closely aligns with the normative model or, alternatively, …

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Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie Jan 2004

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie

Vanderbilt Law School Faculty Publications

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …

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The Public And Private Faces Of Derivative Lawsuits, Randall S. Thomas, Robert B. Thompson Jan 2004

The Public And Private Faces Of Derivative Lawsuits, Randall S. Thomas, Robert B. Thompson

Vanderbilt Law School Faculty Publications

Derivative suits, long the principal vehicle for discussions about representative litigation in corporate and securities law, now share the stage with younger cousins - securities fraud class actions and state law fiduciary duty class actions. At the same time alternative governance vehicles - independent directors, auditors and other reforms that have followed in the wake of Enron - potentially diminish the relative place of litigation such as derivative suits. This article presents data from all derivative suits filed in Delaware over a two-year period. We find a relatively small number, certainly as compared to fiduciary class action and securities fraud …

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The Myth Of What Is Inevitable Under Ecosystem Management: A Response To Pardy, J.B. Ruhl Jan 2004

The Myth Of What Is Inevitable Under Ecosystem Management: A Response To Pardy, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This article, second in a five-part dialogue appearing in the Pace ELR, responds to Professor Bruce Pardy's initial evaluation of ecosystem management. I defend ecosystem management, arguing it is not directed at changing nature as Pardy suggests.

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Induced Litigation, Tracey E. George, Chris Guthrie Jan 2004

Induced Litigation, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

If "justice delayed" is "justice denied,"justice is often denied in American courts. Delay in the courts is a "ceaseless and unremitting problem of modem civil justice" that "has an irreparable effect on both plaintiffs and defendants." To combat this seemingly intractable problem, judges and court administrators routinely clamor for additional judicial resources to enable them to manage their dockets more "effectively and efficiently." By building new courthouses and adding new judgeships, a court should be able to manage its caseload more efficiently. Trial judges should be able to hold motion hearings, host settlement conferences, and conduct trials in a timely …

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The Denominator Blindness Effect: Accident Frequencies And The Misjudgment Of Recklessness, W. Kip Viscusi Jan 2004

The Denominator Blindness Effect: Accident Frequencies And The Misjudgment Of Recklessness, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

People seriously misjudge accident risks because they routinely neglect relevant information about exposure. Such risk judgments affect both personal and public policy decisions, e.g., choice of a transport mode, but also play a vital role in legal determinations, such as assessments of recklessness. Experimental evidence for a sample of 422 jury-eligible adults indicates that people incorporate information on the number of accidents, which is the numerator of the risk frequency calculation. However, they appear blind to information on exposure, such as the scale of a firm's operations, which is the risk frequency denominator. Hence, the actual observed accident frequency of …

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The President's Power To Detain "Enemy Combatants": Modern Lessons From Mr. Madison's Forgotten War, Ingrid Wuerth Jan 2004

The President's Power To Detain "Enemy Combatants": Modern Lessons From Mr. Madison's Forgotten War, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed "Mr. Madison's War" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war …

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Past, Present, And Future Trends Of The Endangered Species Act, J.B. Ruhl Jan 2004

Past, Present, And Future Trends Of The Endangered Species Act, J.B. Ruhl

Vanderbilt Law School Faculty Publications

this article is designed to convince readers that the past, present, and future trends of the ESA are all the same. To provide context, Part I presents a brief overview of the structure of the statute and the kinds of decisions that must be made under it. Part II delves more deeply into each of the topics covered in the NR&E issues, eight in all, providing in each case the necessary legal background followed by a discussion of how the topic played out in the two NR&E issues. Finally, I conclude with a brief summary of my own perspectives on …

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Punitive Damages: How Judges And Juries Perform, Joni Hersch, W. Kip Viscusi Jan 2004

Punitive Damages: How Judges And Juries Perform, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This paper presents the first empirical anatysis that demonstrates that juries differ from judges in awarding punitive damages. Our review of punitive damages awards of $100 million or more identified 63 such awards, of which juries made 95 percent. These jury awards are highly unpredictable and are not significantly correlated with compensatory damages. Using data on jury and bench verdicts from the Civil Justice Survey of State Courts, 1996, we find that juries are significantly more likely to award punitive damages than are judges and award higher levels of punitive damages. Jury awards are also less strongly related to compensatory …

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Understanding Settlement In Damages (And Beyond), Chris Guthrie Jan 2004

Understanding Settlement In Damages (And Beyond), Chris Guthrie

Vanderbilt Law School Faculty Publications

For all of the ways in which the Sabia case is extraordinary, its outcome--settlement--is decidedly ordinary. In most civil litigation, as in the Sabias' litigation against Dr. Maryellen Humes and Norwalk Hospital, "[s]ettlement is where the action is." Roughly two-thirds of all cases settle (and most of the rest are resolved through motions). Why do most cases settle? Given the costs, delay, and unpleasantness of the litigation process, why do any cases go to trial? To address these questions--that is, to explain why most cases settle as well as why some cases "fail" to settle and result in trial--legal academics …

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From Smokestack To Suv: The Individual As Regulated Entity In The New Era Of Environmental Law, Michael P. Vandenbergh Jan 2004

From Smokestack To Suv: The Individual As Regulated Entity In The New Era Of Environmental Law, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

A debate between advocates of command and control regulation and advocates of economic incentives has dominated environmental legal scholarship over the last three decades. Both sides in the debate implicitly embrace the premise that regulatory measures should be directed almost exclusively at large industrial polluters. This Article asserts that for many pollutants the premise is no longer supportable, and that much of the focus of regulation in the future should turn to individuals and households. Examining a wide range of empirical data, the Article presents the first profile of individual behavior as a source of pollution. The profile demonstrates that …

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Risk Realization, Emotion, And Policy Making, Chris Guthrie Jan 2004

Risk Realization, Emotion, And Policy Making, Chris Guthrie

Vanderbilt Law School Faculty Publications

In their study of terrorism and SARS, Professor Feigenson and his colleagues report "significant positive correlations between people's risk perceptions and their negative affect." In their review of the judgment and decision-making literature, Professor Slovic and his colleagues document the interplay between reason and emotion in assessing risk. And in the context of a soldier's concerns for himself and his family, Professor Moran provides a powerful narrative of fear. But what happens when such threats are actually realized? Do we accurately predict the emotional impact of such events? Or are there meaningful and predictable differences between the feelings we forecast …

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Public Ruses, Christopher Serkin, James E. Krier Jan 2004

Public Ruses, Christopher Serkin, James E. Krier

Vanderbilt Law School Faculty Publications

The Fifth Amendment's public use requirement - a dead letter for decades - has recently been resurrected by the Michigan Supreme Court, overruling Poletown, and by the United States Supreme Court, granting certiorari in Kelo v. City of New London. At issue in these cases is the government's ability to condemn property from one private property owner and retransfer it to another, usually with a justification of more-or-less indirect economic benefits to the community. This Essay first argues the legitimacy of these government actions exists on a spectrum from true public uses, to public ruses that primarily benefit private interests …

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Judicial Review Of Agency Inaction: An Arbitrariness Approach, Lisa Schultz Bressman Jan 2004

Judicial Review Of Agency Inaction: An Arbitrariness Approach, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

This Article contends that the current law governing judicial review of agency inaction, though consistent with the prevailing theory of agency legitimacy, is inconsistent with the founding principles of the administrative state. The Supreme Court's reluctance to allow judicial review of agency inaction reflects the popular view that agency decision-making should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this view of agency decision-making reject the Court's treatment of agency inaction. Yet these scholars have failed to appreciate the reason. The reason is that the founding principles of the …

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Insights From Cognitive Psychology, Chris Guthrie Jan 2004

Insights From Cognitive Psychology, Chris Guthrie

Vanderbilt Law School Faculty Publications

My goal in this paper is to explore cognitive psychology's place in the dispute resolution field. To do so, I first look back and then look forward. Looking back, I identify the five insights from cognitive psychology that have had the biggest impact on my own dispute resolution teaching and scholarship. Looking forward, I identify my five hopes for the future of cognitive psychology in the dispute resolution field.

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Endangered Species Act Innovations In The Post-Babbittonian Era--Are There Any?, J.B. Ruhl Jan 2004

Endangered Species Act Innovations In The Post-Babbittonian Era--Are There Any?, J.B. Ruhl

Vanderbilt Law School Faculty Publications

One of the mysteries of environmental policy in the Bush Administration will be how and why it squandered an opportunity to continue market-based administrative reforms of the Endangered Species Act begun, ironically, in the Clinton Administration under the direction of then Secretary of the Interior Bruce Babbitt. This article traces the momentum built for reform in the Babbittonian era and examines what has not happened since then.

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