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Full-Text Articles in Law

Money And (Shadow) Banking: A Thought Experiment, Morgan Ricks Jan 2012

Money And (Shadow) Banking: A Thought Experiment, Morgan Ricks

Vanderbilt Law School Faculty Publications

This paper approaches the shadow banking problem from a monetary point of view. It does so by means of a simple thought experiment. The aim is to strip away the inessentials so as to reveal some of the basic legal-institutional design considerations that attend the establishment and management of a monetary system. It is the author's experience that underlying assumptions in this area are surprisingly divergent and, at any rate, are seldom made explicit in the shadow banking literature. If this paper merely assists in surfacing some otherwise unstated assumptions, it will have served its purpose.


Adversarial Economics In Antitrust Litigation: Losing Academic Consensus In The Battle Of The Experts, Rebecca Haw Allensworth Jan 2012

Adversarial Economics In Antitrust Litigation: Losing Academic Consensus In The Battle Of The Experts, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

The adversarial presentation of expert scientific evidence tends to obscure academic consensus. In the context of litigation, small, marginal disagreements can be made to seem important and settled issues can be made to appear hopelessly deadlocked. This Article explores this dynamic's effect on antitrust litigation. Modem antitrust law is steeped in microeconomics, and suits rely heavily on economic expert witnesses. Indeed, expert testimony is often the "whole game" in an antitrust dispute because experts testify about dispositive issues such as the competitive effect of a business practice or the relevant boundaries of a market. And the Supreme Court has ...


Erie And The Rules Of Evidence, Edward K. Cheng Jan 2012

Erie And The Rules Of Evidence, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Jay Tidmarsh offers an intriguing new test for drawing the allimportant line between procedure and substance for purposes of Erie. The Tidmarsh test is attractively simple, yet seemingly reaches the right result in separating out truly “procedural” rules from more substantive ones. Since I am not a proceduralist, in this Response I will leave the Tidmarsh test’s explanatory power and practical workability vis-à-vis general civil procedure rules to others more qualified than I. Instead, I want to focus on the implications of the Tidmarsh test for the Federal Rules of Evidence. Like others in the evidence world, I have ...


Angry Judges, Terry A. Maroney Jan 2012

Angry Judges, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Judges get angry. Law, however, is of two minds as to whether they should; more importantly, it is of two minds as to whether judges’ anger should influence their behavior and decision making. On the one hand, anger is the quintessentially judicial emotion. It involves appraisal of wrongdoing, attribution of blame, and assignment of punishment — precisely what we ask of judges. On the other, anger is associated with aggression, impulsivity, and irrationality. Aristotle, through his concept of virtue, proposed reconciling this conflict by asking whether a person is angry at the right people, for the right reasons, and in the ...


Law, Emotion, And Terra Nova: Neal Feigenson As Both Radical And Reformer, Terry A. Maroney Jan 2012

Law, Emotion, And Terra Nova: Neal Feigenson As Both Radical And Reformer, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Law and emotion scholarship can engage with law on its own terms. It can seek to expose moments where the law already incorporates some kind of emotional component, and it can show how a richer understanding of emotion could inform or refine how the law treats that component. With crimes of passion, for example, we might ask people to notice how that aspect of criminal law doctrine privileges some emotions over others. For example, anger is more valued than contempt. We might also ask them to notice how the law reflects lay theories of how those emotions operate. For example ...


Atrocity, Entitlement, And Personhood In Property, Daniel J. Sharfstein Jan 2012

Atrocity, Entitlement, And Personhood In Property, Daniel J. Sharfstein

Vanderbilt Law School Faculty Publications

For a generation since Margaret Jane Radin’s classic article Property and Personhood, scholars have viewed personhood as a conception of property that affirms autonomy, dignity, and basic civil rights, a progressive alternative to traditional, more economically focused property theories. This article presents a fundamental challenge to personhood as a progressive approach to property. It shows that personhood claims often derive from violent and other harmful acts committed in the course of acquiring and owning property. This persistent and pervasive connection between personhood and violence — the “atrocity value” in property — upends core assumptions about the American property ...


Of Dialogue--And Democracy--In Administrative Law, Jim Rossi Jan 2012

Of Dialogue--And Democracy--In Administrative Law, Jim Rossi

Vanderbilt Law School Faculty Publications

Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to ...


"Sell's" Conundrums: The Right Of Incompetent Defendants To Refuse Anti-Psychotic Medication, Christopher Slobogin Jan 2012

"Sell's" Conundrums: The Right Of Incompetent Defendants To Refuse Anti-Psychotic Medication, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The Supreme Court's 2003 decision in Sell v. United States declared that situations in which the state is authorized to forcibly medicate a criminal defendant to restore competency to stand trial "may be rare." Experience since Sell indicates that this prediction was wrong. In fact, wittingly or not, Sell created three exceptions to its holding (the dangerousness, treatment incompetency, and serious crime exceptions) that virtually swallow the right to refuse. Using the still-on-going case of Jared Loughner as an illustration, this essay explores the scope of these exceptions and the dispositions available in those rare circumstances when none of ...


International Law In Domestic Courts And The Jurisdictional Immunities Of The State Case, Ingrid Wuerth Jan 2012

International Law In Domestic Courts And The Jurisdictional Immunities Of The State Case, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

National court litigation in Greece and Italy prompted Germany to bring suit before the international Court of Justice (‘ICJ’), resulting in the Jurisdictional Immunities of the State judgment. The history of that litigation, as well as the ICJ’s judgment itself, raise two questions about the relationship between executive branches and courts. First, if national court decisions conflict with the views of the forum state’s executive branch, which controls for the purpose of determining state practice in customary international law? Secondly, are national courts more likely to produce ‘outlier’ decisions that challenge or undermine existing international law when the ...


An Empirical Assessment Of Climate Change In The Courts: A New Jurisprudence Or Business As Usual?, J.B. Ruhl, David L. Markell Jan 2012

An Empirical Assessment Of Climate Change In The Courts: A New Jurisprudence Or Business As Usual?, J.B. Ruhl, David L. Markell

Vanderbilt Law School Faculty Publications

While legal scholarship seeking to assess the impact of litigation on the direction of climate change policy is abundant and growing in leaps and bounds, to date it has relied on and examined only small, isolated pieces of the vast litigation landscape. Without a complete picture of what has and has not been within the sweep of climate change litigation, it is difficult to offer a robust evaluation of the past, present, and future of climate change jurisprudence. Based on a comprehensive empirical study of the status of all (201) climate change litigation matters filed through 2010, this Article is ...


The Endangered Species Act's Fall From Grace In The Supreme Court, J.B. Ruhl Jan 2012

The Endangered Species Act's Fall From Grace In The Supreme Court, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Thirty-five years ago, the Endangered Species Act ("ESA") had as auspicious a debut in the U.S. Supreme Court as any statute could hope for. In Tennessee Valley Authority v. Hill, a majority of the Court proclaimed that the ESA was intended "to halt and reverse the trend toward species extinction, whatever the cost" and backed up those and other bold words by preventing a nearly completed federal dam from impounding its reservoir because doing so would eliminate the only known (at the time) habitat of a small fish, the now infamous snail darter. To this day, Hill remains actively ...


When 10 Trials Are Better Than 1000: An Evidentiary Perspective On Trial Sampling, Edward K. Cheng Jan 2012

When 10 Trials Are Better Than 1000: An Evidentiary Perspective On Trial Sampling, Edward K. Cheng

Vanderbilt Law School Faculty Publications

In many mass tort cases, separately trying all individual claims is impractical, and thus a number of trial courts and commentators have explored the use of statistical sampling as a way of efficiently processing claims. Most discussions on the topic, however, implicitly assume that sampling is a “second best” solution: individual trials are preferred for accuracy, and sampling only justified under extraordinary circumstances. This Essay explores whether this assumption is really true. While intuitively one might think that individual trials would be more accurate at estimating liability than extrapolating from a subset of cases, the Essay offers three ways in ...


A Theory Of Representative Shareholder Suits And Its Application To Multijurisdictional Litigation, Randall Thomas, Robert B. Thompson Jan 2012

A Theory Of Representative Shareholder Suits And Its Application To Multijurisdictional Litigation, Randall Thomas, Robert B. Thompson

Vanderbilt Law School Faculty Publications

We develop a theory to explain the uses and abuses of representative shareholder litigation based on its two most important underlying characteristics: the multiple sources of the legal rights being redressed (creating dynamic opportunities for arbitrage) and the ability of multiple shareholders to seek to represent the collective group in such litigation (creating increased risk of litigation agency costs by those representatives and their attorneys). Placed against the backdrop of controlling managerial agency costs, our theory predicts that: (1) the relative strength of the different forms of shareholder litigation will shift over time; (2) these shifts can result in new ...


Interpreting Regulations, Kevin M. Stack Jan 2012

Interpreting Regulations, Kevin M. Stack

Vanderbilt Law School Faculty Publications

The age of statutes has given way to an era of regulations, but our jurisprudence has fallen behind. Despite the centrality of regulations to law, courts have no intelligible approach to regulatory interpretation. The neglect of regulatory interpretation is not only a shortcoming in interpretive theory but also a practical problem for administrative law. Canonical doctrines of administrative law — Chevron, Seminole Rock/Auer, and Accardi — involve interpreting regulations, and yet courts lack a consistent approach. This Article develops a method for interpreting regulations and, more generally, situates regulatory interpretation within debates over legal interpretation. It argues that a ...


What Is The Essential Fourth Amendment?, Christopher Slobogin Jan 2012

What Is The Essential Fourth Amendment?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen Schulhofer provides a strong, popularized brief for interpreting the Fourth Amendment as a command that judicial review precede all non-exigent police investigative actions that are more than minimally intrusive. This review points out a few places where Schulhofer may push the envelope too far or not far enough, but concludes that More Essential Than Ever is a welcome reminder for scholars and the public at large that the Fourth Amendment is a fundamental bulwark of constitutional jurisprudence and deserves more respect than the Supreme Court has given ...


Twombly And Iqbal Reconsidered, Brian T. Fitzpatrick Jan 2012

Twombly And Iqbal Reconsidered, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court reinterpreted the Federal Rules of Civil Procedure to permit judges to dismiss claims at the very outset of a case whenever they think the claims are implausible. The decisions have been extremely controversial, and they are already on track to become the most cited Supreme Court decisions of all time. Critics contend that the decisions are prime examples of the “conservative judicial activism” widely attributed to the Roberts Court. In particular, critics contend that the decisions circumvented the usual process for promulgating amendments to the Federal Rules ...


The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick Jan 2012

The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Few questions in the field of Federal Courts have captivated scholars like the question of whether Congress can simultaneously divest both lower federal courts and the U.S. Supreme Court of jurisdiction to hear federal constitutional claims and thereby leave those claims to be litigated in state courts alone. Such a divestiture is known today as “jurisdiction stripping,” and, despite literally decades of scholarship on the subject, scholars have largely been unable to reconcile two widely held views: jurisdiction stripping should be unconstitutional because it deprives constitutional rights of adjudication by independent judges and jurisdiction stripping is nonetheless perfectly consistent ...


Inadvertent Implications Of The War Powers Resolution, Michael A. Newton Jan 2012

Inadvertent Implications Of The War Powers Resolution, Michael A. Newton

Vanderbilt Law School Faculty Publications

The constitutional infirmity of the War Powers Resolution has been uniformly demonstrated by more than four decades of bipartisan experience. The Resolution manifestly fails to eliminate the healthy interbranch tensions that are in our constitutional DNA with respect to military deployments. In its context, the override of President Nixon's veto represented little more than a stark act of congressional opportunism. The President's veto message was prescient in warning that the Resolution is dangerous to the best interests of our Nation. This article suggests that the act represents an attempted abdication of the enumerated obligation of Congress to oversee ...


Can The States Keep Secrets From The Federal Government?, Robert A. Mikos Jan 2012

Can The States Keep Secrets From The Federal Government?, Robert A. Mikos

Vanderbilt Law School Faculty Publications

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer ...


Global Public Goods, Governance Risk, And International Energy, Timothy Meyer Jan 2012

Global Public Goods, Governance Risk, And International Energy, Timothy Meyer

Vanderbilt Law School Faculty Publications

Scholars and commentators have long argued that issue linkages provide a way to increase cooperation on global public goods by increasing participation in global institutions, building consensus, and deterring free-riding. In this symposium article, I argue that the emphasis on the potential of issue linkages to facilitate cooperation in these ways has caused commentators to underestimate how common features of international legal institutions designed to accomplish these aims can actually undermine those institutions’ ability to facilitate cooperation. I focus on two features of institutional design that are intended to encourage participation in public goods institutions but can create the risk ...


Non-Capital Habeas Cases After Appellate Review: An Empirical Analysis, Nancy J. King Jan 2012

Non-Capital Habeas Cases After Appellate Review: An Empirical Analysis, Nancy J. King

Vanderbilt Law School Faculty Publications

n 2007, researchers from the National Center for State Courts and Vanderbilt University Law School reported the findings from a study of litigation in 2384 randomly selected, non-capital habeas cases, approximately 6.5% of the non-capital habeas cases commenced in federal district courts in 2003 and 2004 by state prisoners. In this article, I update that report, including the cases that were pending when the 2007 report was prepared, and following the study cases into the federal courts of appeals, and back into the state courts. Even after appellate review of denials and dismissals, the percentage of non-capital petitioners receiving ...


Selectica Resets The Trigger On The Poison Pill: Where Should The Delaware Courts Go Next?, Paul H. Edelman, Randall S. Thomas Jan 2012

Selectica Resets The Trigger On The Poison Pill: Where Should The Delaware Courts Go Next?, Paul H. Edelman, Randall S. Thomas

Vanderbilt Law School Faculty Publications

Since their invention in 1982, shareholder rights plans have been the subject of intense controversy. Rights plans, or as they are known more pejoratively “poison pills,” enable a target board to “poison” a takeover attempt by making it prohibitively expensive for a bidder to acquire more than a certain percentage of the target company’s stock (until recently 15-20%). Not surprisingly, some commentators view rights plans as an inappropriate means of shifting power from shareholders to the board of directors.

In this Article, we critically examine Delaware law on the use of shareholder rights plans and propose a new approach ...


Medical Marijuana And The Political Safeguards Of Federalism, Robert A. Mikos Jan 2012

Medical Marijuana And The Political Safeguards Of Federalism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Medical marijuana has emerged as one of the key federalism battlegrounds of the last two decades. Since 1996, sixteen states have passed new laws legalizing the drug for certain medical purposes.' All the while, the federal government has remained committed to zero-tolerance, prohibiting the possession, cultivation, and distribution of marijuana for any purpose.2 The federal government's uncompromising stance against medical marijuana seemingly exposes the states' vulnerability to the whims of the national political process, and it has inspired calls for the courts to step in and protect state experimentation from this and other instances of arguable congressional over-reaching.


Good For You, Bad For Us: The Financial Disincentive For Net Demand, Jim Rossi, Michael P. Vandenbergh Jan 2012

Good For You, Bad For Us: The Financial Disincentive For Net Demand, Jim Rossi, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article examines a principal barrier to reducing U.S. carbon emissions — electricity distributors’ financial incentives to sell more of their product — and introduces the concept of net demand reduction (“NDR”) as a primary goal for the modern energy regulatory system. Net electricity demand must decrease substantially from projected levels for the United States to achieve widely-endorsed carbon targets by 2050. Although social and behavioral research has identified cost-effective ways to reduce electricity demand, state-of-the-art programs to curtail demand have not been implemented on a widespread basis. We argue that electric distribution utilities are important gatekeepers that can determine whether ...


Raising The Bar: Law Schools And Legal Institutions Leading To Educate Undocumented Students, Karla M. Mckanders, Raquel Aldana, Beth Lyon Jan 2012

Raising The Bar: Law Schools And Legal Institutions Leading To Educate Undocumented Students, Karla M. Mckanders, Raquel Aldana, Beth Lyon

Vanderbilt Law School Faculty Publications

This paper explores the adoption of best practices for the admission and graduation of undocumented students as lawyers and promoting their integration into the legal profession. Law schools are already both knowingly and unknowingly admitting and graduating undocumented students. It is our contention in this paper, after careful analysis, that no law precludes law schools from admitting undocumented students, offering them in-state tuition or other types of private and even public financial aid in states that permit it, or allowing them to participate fully in the law schools’ educational opportunities. We acknowledge that there are tensions around the decision to ...


Pawnshops, Behavioral Economics, And Self Regulation, Paige Marta Skiba, Susan Payne Carter Jan 2012

Pawnshops, Behavioral Economics, And Self Regulation, Paige Marta Skiba, Susan Payne Carter

Vanderbilt Law School Faculty Publications

Pawnbroking is the oldest source of credit. There is growing public interest in day-to-day pawnbroking operations, as evidenced by the popularity of reality shows such as “Pawn Stars” and “Hardcore Pawn.” Television viewers’ curiosity about an old credit institution may be due to the fact that 7% of all U.S. households have used pawn credit. Although pawnshops predate biblical times, researchers know surprisingly little about this ancient form of banking and its customers. We fill this gap by documenting detailed information on pawnshop loan repayment and default, and by discussing how pawnshop borrowers’ behavior is consistent with various behavioral ...


Regulation Of Payday Loans: Misguided?, Paige Marta Skiba Jan 2012

Regulation Of Payday Loans: Misguided?, Paige Marta Skiba

Vanderbilt Law School Faculty Publications

Since payday lenders came on the scene in 1990s, regulation of their "predatory" practices has been swift and often severe. Fourteen states now ban payday loans outright. From an economist's perspective, high-interest, short-term, small loans need not be a bad thing. Payday credit can help borrowers "smooth" consumption, unequivocally improving welfare as consumers borrow from future good times to help cover current shortfalls. These benefits of credit can accrue even at typical payday loan interest rates of 300%-600% APR. The question of whether payday credit actually assists borrowers in this way is an empirical one. In this Article ...


Good For You, Bad For Us: The Financial Disincentive For Net Demand Reduction, Michael P. Vandenbergh, Jim Rossi Jan 2012

Good For You, Bad For Us: The Financial Disincentive For Net Demand Reduction, Michael P. Vandenbergh, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article examines a principal barrier to reducing U.S. carbon emissions — electricity distributors’ financial incentives to sell more of their product — and introduces the concept of net demand reduction (“NDR”) as a primary goal for the modern energy regulatory system. Net electricity demand must decrease substantially from projected levels for the United States to achieve widely-endorsed carbon targets by 2050. Although social and behavioral research has identified cost-effective ways to reduce electricity demand, state-of-the-art programs to curtail demand have not been implemented on a widespread basis. We argue that electric distribution utilities are important gatekeepers that can determine whether ...


Evolution And The Expression Of Biases: Situational Value Changes The Endowment Effect In Chimpanzees, Owen D. Jones, Sarah F. Brosnan, Molly Gardner, Susan P. Lambeth, Steven J. Schapiro Jan 2012

Evolution And The Expression Of Biases: Situational Value Changes The Endowment Effect In Chimpanzees, Owen D. Jones, Sarah F. Brosnan, Molly Gardner, Susan P. Lambeth, Steven J. Schapiro

Vanderbilt Law School Faculty Publications

Cognitive and behavioral biases, which are widespread among humans, have recently been demonstrated in other primates, suggesting a common origin. Here we examine whether the expression of one shared bias, the endowment effect, varies as a function of context. We tested whether objects lacking inherent value elicited a stronger endowment effect (or preference for keeping the object) in a context in which the objects had immediate instrumental value for obtaining valuable resources (food). Chimpanzee subjects had opportunities to trade tools when food was not present, visible but unobtainable, and obtainable using the tools. We found that the endowment effect for ...


The Null Patent, Sean B. Seymore Jan 2012

The Null Patent, Sean B. Seymore

Vanderbilt Law School Faculty Publications

Failure is the basis of much of scientific progress because it plays a key role in knowledge building. In fact, negative results comprise the bulk of knowledge produced in scientific research. This is not a bad thing because failures always produce valuable technical information - whether it be a serendipitous finding, an abundance of unexpected technical data, or simply knowledge that an initial hypothesis was totally wrong. Though some have recognized that the dissemination of negative results has many upsides for science, transforming scientific norms toward disclosure is no easy task. As for patent law, the potentially important role that negative ...