Law Commons^™

Patenting Around Failure, Sean B. Seymore

Vanderbilt Law School Faculty Publications

Many patents cover inventions that do not work as described. Fingers often point to the U.S. Patent and Trademark Office (Patent Office), which is criticized for doing a poor job of examining patents. But the story is more complicated for at least three reasons. First, from an information standpoint, the Patent Office is at a clear disadvantage because the inventor has little incentive to disclose failure because it might compromise patentability. Second, an inventor is not required to actually make everything that is claimed (or verify that everything that is claimed actually works) before filing a patent application. Third, inventors …

Legal Strategies For Economic Empowerment Of Persons In Recovery, Lauren Rogal

Vanderbilt Law School Faculty Publications

Substance use disorders, which afflict nearly 8% of the U.S. population,' exact a devastating human and economic toll. The opioid epidemic has caused overdose deaths to quadruple since 1999.2 In 2013 alone, the epidemic imposed an economic burden of over $78.5 billion, including $28.9 billion in spending on health care and substance abuse treatment. These burdens increasingly fall on rural and under-resourced areas, particularly in the Appalachian region. The crisis has evoked a range of policy reforms to prevent addiction, investments in treatment for sufferers, and lawsuits against purveyors of addictive substances.

The Idea Of "The Criminal Justice System", Sara Mayeux

Vanderbilt Law School Faculty Publications

The phrase "the criminal justice system " is ubiquitous in discussions of criminal law, policy, and punishment in the United States-so ubiquitous that, at least in colloquial use, almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic "system, " became pervasive only in the 1960s. This essay contextualizes the idea of "the criminal justice system" within the longer history of systems theories more generally, drawing on recent scholarship in intellectual history and the history of science. The essay then recounts how that longer history converged, …

Insurance Coverage Policies For Pharmacogenomic And Multi-Gene Testing For Cancer, Ellen Wright Clayton, Christine Y. Lu, Stephanie Loomer, Et Al.

Vanderbilt Law School Faculty Publications

Abstract: Insurance coverage policies are a major determinant of patient access to genomic tests. The objective of this study was to examine differences in coverage policies for guideline-recommended pharmacogenomic tests that inform cancer treatment. We analyzed coverage policies from eight Medicare contractors and 10 private payers for 23 biomarkers (e.g., HER2 and EGFR) and multi-gene tests. We extracted policy coverage and criteria, prior authorization requirements, and an evidence basis for coverage. We reviewed professional society guidelines and their recommendations for use of pharmacogenomic tests. Coverage for KRAS, EGFR, and BRAF tests were common across Medicare contractors and private payers, but …

Forensics, Chicken Soup, And Meteorites: A Tribute To Michael Risinger, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Michael Risinger's scholarship has had a profound impact on our field. And while his work has run the gamut in evidence law, I think it is clear that Michael's true love has always been expert evidence, and more specifically, forensics. So let me take a moment to revisit "an oldie but a goodie": his 1989 article entitled Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification "Expertise," published in the University of Pennsylvania Law Review, and co-authored with Mark Denbeaux and Michael Saks.' For those of you who have not read the article, you should. …

Restoring Trade's Social Contract, Timothy Meyer, Frank J. Garcia

Vanderbilt Law School Faculty Publications

As we write, the United States, Canada, and Mexico are renegotiating the North American Free Trade Agreement (NAFTA). These talks—and their possible failure—represent the biggest shift in U.S. economic policy in a generation. Since NAFTA came into force in 1994, it has transformed the North American economy. NAFTA has made possible continent-wide supply chains, in industries like the auto sector, that have reduced costs and allowed American automakers to remain competitive; it has opened markets for American agriculture; it has greatly increased the standard of living in Mexico; and it has reduced consumer prices across the continent. Despite these gains, …

Revisiting The Public Utility, Jim Rossi, Morgan Ricks

Vanderbilt Law School Faculty Publications

This foreword introduces "Revisiting the Public Utility," a series of essays published in a special issue of Yale Journal on Regulation. We cluster the contributions to this issue around public utility regulation’s core rationales and its scope, its implications for innovation and industry stability, and its evolving approach to price regulation. The scholarship represented in this issue challenges the notion that public utility ideas are obsolete or irrelevant to modern issues in economic regulation. It questions whether public utility regulation has fallen short of its goals, and shows that there are some good reasons to question many embedded regulatory practices. …

Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther

Vanderbilt Law School Faculty Publications

In this Symposium issue celebrating his career, Professor Michael Risinger in Leveraging Surprise proposes using "the fundamental emotion of surprise" as a way of measuring belief for purposes of legal proof. More specifically, Professor Risinger argues that we should not conceive of the burden of proof in terms of probabilities such as 51%, 95%, or even "beyond a reasonable doubt." Rather, the legal system should reference the threshold using "words of estimative surprise" -asking jurors how surprised they would be if the fact in question were not true. Toward this goal (and being averse to cardinality), he suggests categories such …

Explicit Bias, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In recent decades, legal scholars have advanced sophisticated models for understanding prejudice and discrimination, drawing on disciplines such as psychology, sociology, and economics. These models explain how inequality is implicit in cognition and seamlessly woven into social structures. And yet, obvious, explicit, and overt forms of bias have not gone away. The law does not need empirical methods to identify bias when it is marching down the street in Nazi regalia, hurling misogynist invective, or trading in anti-Muslim stereotypes. Official acceptance of such prejudices may be uniquely harmful in normalizing discrimination. But surprisingly, many discrimination cases ignore explicit bias. Courts …

In Appreciation Of The Tarlock Effect, J.B. Ruhl

Vanderbilt Law School Faculty Publications

So, what is one to do about The Tarlock Effect? It didn't take long for me to realize early in my academic career-well before my foray into climate change adaptation policy-that there's just no escaping it. So I learned to appreciate it. Better yet, take advantage of The Tarlock Effect! My way of doing so is easy: when the next brilliant law review idea pops into my head, I read Dan's CV, knowing he probably has said something meaningful on the theme and hoping not everything worth saying. When I find the inevitable-indeed he has thought of it-I read his …

Topic Modeling The President: Conventional And Computational Methods, J.B. Ruhl, John Nay, Jonathan Gilligan

Vanderbilt Law School Faculty Publications

Legal and policy scholars modeling direct actions into substantive topic classifications thus far have not employed computational methods. To compare the results of their conventional modeling methods with the computational method, we generated computational topic models of all direct actions over time periods other scholars have studied using conventional methods, and did the same for a case study of environmental-policy direct actions. Our computational model of all direct actions closely matched one of the two comprehensive empirical models developed using conventional methods. By contrast, our environmental-case-study model differed markedly from the only empirical topic model of environmental-policy direct actions using …

Money As Infrastructure, Morgan Ricks

Vanderbilt Law School Faculty Publications

Traditional infrastructure regulation—the law of regulated industries—rests atop three pillars: rate regulation, entry restriction, and universal service. This mode of regulation has typically been applied to providers of network-type resources: resources that are optimally supplied as integrated systems. The monetary system is such a resource; and money creation is the distinctive function of banks. Bank regulation can therefore be understood as a subfield of infrastructure regulation. With few exceptions, modern academic treatments of banking have emphasized banks’ intermediation function and downplayed or ignored their monetary function. Concomitantly, in recent decades U.S. bank regulation has strayed from its infrastructural roots. This …

A Blueprint For A New American Trade Policy, Timothy Meyer, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In recent years, it has become clear that American trade policy needs to change. For decades, U.S. policy has reflected the implicit assumption that trade liberalization is beneficial for everyone, with few distributional downsides over time. But this assumption hasn’t been borne out. Instead, decades of trade liberalization have led to a backlash that resulted in both 2016 presidential nominees opposing the Obama Administration’s proposed Trans Pacific Partnership (TPP). And since 2017, President Donald Trump has begun a trade war with China; raised tariffs on the grounds of protecting national security; renegotiated NAFTA, though on terms that do not obviously …

Decoding Guilty Minds: How Jurors Attribute Knowledge And Guilt, Owen D. Jones, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie, Morris B. Hoffman, Kenneth W. Simons

Vanderbilt Law School Faculty Publications

A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what a person was thinking months or years earlier at the time of the alleged offense, either about the results of his conduct or about some elemental fact (such as whether the briefcase he is carrying contains drugs). Despite the central importance of this task in the administration of …

The Fatal Failure Of The Regulatory State, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The impact of government policies depends on their design, implementation, and enforcement.! The administrative law literature focuses primarily on matters of regulatory structure.2 Government agencies entrusted with protection of the environment and promotion of health and safety foster these objectives by designing and promulgating regulations that are sometimes quite stringent.' Whether these regulations will in fact generate their intended effects depends on whether they create sufficient economic incentives to discourage risky behavior...

The Article begins by documenting the low values currently placed on life in regulatory enforcement efforts. Part I presents examples involving job safety, food safety, motor-vehicle safety, and …

Delaware's Retreat, Randall Thomas, James D. Cox

Vanderbilt Law School Faculty Publications

The 1980’s is appropriately considered the Golden Age of Delaware corporate law. Within that era, the Delaware courts won international attention by not just erecting the legal pillars that frame today’s corporate governance discourse but by interjecting a fresh perspective on the rights of owners and the prerogatives of managers. Four decisions stand out within a melodious chorus of great decisions of that era - Revlon , Inc. v. MacAndrews & Forbes Holding, Inc., Weinberger v. UOP, Inc., Unocal Corp. v. Mesa Petroleum Co., and Blasius Industries, Inc. v. Atlas Corporation. We refer collectively to the decisions as the Golden …

How And Why Is The American Punishment System "Exceptional"?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Anyone interested in American criminal justice has to wonder why we have so many more people in prison—in absolute as well as relative terms—than the western half of the European continent, the part of the world most readily comparable to us. This book, consisting of eleven chapters by eminent criminal law scholars, criminologists and political scientists, provides both a detailed look at how U.S. punishment is different and an insightful analysis of why that might be so. While many chapters in the book describe previously declared positions of the authors, there is also much that is new in the book, …

The Shifting Tides Of Merger Litigation, Randall Thomas, Matthew D. Cain, Jill Fisch, Steven D. Solomon

Vanderbilt Law School Faculty Publications

In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to win a lawsuit challenging a merger and more difficult for plaintiffs’ counsel to collect a fee award. We study what has happened in the courts in response to these changes. We find that the initial effect of the changes has been to decrease the volume of merger …

Approaches To Carrier Testing And Results Disclosure In Translational Genomics Research, Ellen Wright Clayton, Kathryn M. Porter, Et Al.

Vanderbilt Law School Faculty Publications

Background: Clinical genome and exome sequencing (CGES) is primarily used to address specific clinical concerns by detecting risk of future disease, clarifying diagnosis, or directing treatment. Additionally, CGES makes possible the disclosure of autosomal recessive and X-linked carrier results as additional secondary findings, and research about the impact of carrier results disclosure in this context is needed.

Methods: Representatives from 11 projects in the clinical sequencing exploratory research (CSER) consortium collected data from their projects using a structured survey. The survey focused on project characteristics, which variants were offered and/or disclosed to participants as carrier results, methods for carrier results …

Reframing The Proportionality Principle, Michael A. Newton

Vanderbilt Law School Faculty Publications

Proportionality functions as oneof the most important legal constraints applicable to the conduct of hostilities. In that context, this short essay discusses the commonly encountered misapplications of Cicero's classic sentiment that "salus populwe supremus est lexl . . . silent enim leges inter armes." Rather than serving as a necessary basis for a positive articulation of lawful force as an exception to the norm, jus in bello proportionality delineates the outer boundaries of the commander's appropriate discretion. The mere invocation of jus in bello proportionality cannot become an effective extension of asymmetric combat power by artificially crippling combatant capabilities. This …

The Future Of The Federal Common Law Of Foreign Relations, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficulties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reliance upon presidential or congressional action, or by standard constitutional …

Too-Big-To-Fail Shareholders, Yesha Yadav

Vanderbilt Law School Faculty Publications

To build resilience within the financial system, post-Crisis regulation relies heavily on banks to fund themselves more fully by issuing equity. This reserve of value should buttress failing banks by providing a mechanism to pay off creditors and depositors and preserve the health of financial markets. In the process, shareholders are wiped out. Scholars and policymakers, however, have neglected to examine which equity investors, in fact, are purchasing bank equity and taking on the default risk of U.S. banks. This Article addresses this question. First, it shows that five asset managers - BlackRock, Vanguard, State Street Global Advisors, Fidelity and …

Presidential Exit, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

"The biggest problem that we're facing right now has to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that's what I intend to reverse when I'm president of the United States of America."

"Why is @BarackObama constantly issuing executive orders that are major power grabs of authority?"

"President Trump signed the 30th executive order of his presidency on Friday, capping off a whirlwind period that produced more orders in his first 100 days than for any president since Harry Truman. The rash of executive orders …

Is Groton The Next "Evenwel"?, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In Evenwel v Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of ``one person- one vote'' (OPOV). It was thought that there was little prospect of resolving this question soon as no appropriate instances of such behavior was known. That belief was mistaken. In this note I report on the Town of Groton, Connecticut which uses registered voting data to apportion seats in its Representative Town Meeting, and has done so since its incorporation in 1957. …