Law Commons^™

Natural Disaster Risks: An Introduction, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

An introduction to a special issue of the Journal of Risk and Uncertainty dealing with the implications of catastrophic events for research on risk and uncertainty. What are the consequences of natural disasters? How do individuals and firms respond to such disasters? How do insurers respond, and how should the government respond? Several of these papers will have a strong normative component as they will suggest what actions individuals, firms, and the government should take in anticipation of natural disasters.

National Survey Evidence On Disasters And Relief: Risk Beliefs, Self-Interest, And Compassion, W. Kip Viscusi, Richard J. Zeckhauser

Vanderbilt Law School Faculty Publications

A nationally representative sample of respondents estimated their fatality risks from four types of natural disasters, and indicated whether they favored governmental disaster relief. For all hazards, including auto accident risks, most respondents assessed their risks as being below average, with one-third assessing them as average. Individuals from high-risk states, or with experience with disasters, estimate risks higher, though by less than reasonable calculations require. Four-fifths of our respondents favor government relief for disaster victims, but only one-third do for victims in high-risk areas. Individuals who perceive themselves at higher risk are more supportive of government assistance.

The Iraqi High Criminal Court: Controversy And Contributions, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Iraqi High Criminal Court established to prosecute Saddam Hussein and other leading Ba’athists is one of the most visible of the current efforts to establish criminal accountability for violations of international norms. Juxtaposed against other tribunals, the High Criminal Court has provoked worldwide debate over its processes and its prospects for returning societal stability founded on respect for human rights and the rule of law to Iraq. This article explores in detail the legal basis for the formation of the High Criminal Court under the law of occupation. It addresses the relationship between the Iraqi model of prosecuting crimes …

In Defense Of Regulatory Peer Review, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

The debate over application of peer review to the regulatory decisions of administrative agencies has heated up in the last year. Part of the larger and controversial sound science movement, mandating peer review for certain types of agency decisions has recently been championed by the White House and proponents in Congress. Indeed, this past January the Office of Management and Budget finalized guidelines requiring peer review for large classes of agency activities. These initiatives have not gone unchallenged, and a fierce debate has resulted between those who claim peer review will strengthen the scientific basis of agency decisions and those …

The Allocation Problem In Multiple-Claimant Representations, Paul H. Edelman, Richard A. Nagareda, Charles Silver

Vanderbilt Law School Faculty Publications

Multiple-claimant representations-classa ctions and other group lawsuits-pose two principal-agent problems: Shirking (failure to maximize the aggregate recovery) and misallocation (distribution of the aggregate recovery other than according to the relative value of claims). Clients have dealt with these problems separately, using contingent percentage fees to motivate lawyers to maximize the aggregate recovery and monitoring devices (disclosure requirements, client control rights, and third-party review) to encourage appropriate allocations. The scholarly literature has proceeded on the premise that monitoring devices are needed to police misallocations, because the fee calculus cannot do the entire job. This paper shows that this premise is mistaken …

Specific Investment: Explaining Anomalies In "Corporate Law", Margaret M. Blair, Lynn A. Stout

Vanderbilt Law School Faculty Publications

This Article has two goals: to praise Professor Robert Clark as a remarkable corporate scholar, and to explore how his work has helped to advance our understanding of corporations and corporate law. Clark wrote his classic treatise at a time when corporate scholarship was dominated by a principal-agent paradigm that viewed shareholders as the principals or sole residual claimants in public corporations and treated directors as shareholders' agents. This view naturally led contemporary scholars to believe that the chief economic problem of interest in corporate law was the "agency cost" problem of getting corporate directors to do what shareholders wanted …

The Catastrophic Effects Of Natural Disasters On Insurance Markets, W. Kip Viscusi, Patricia Born

Vanderbilt Law School Faculty Publications

Natural catastrophes often have catastrophic risks on insurance companies as well as on the insured. Using a very large dataset on homeowners insurance coverage by state, by firm, and by year for the 1984 to 2004 period, this paper documents the positive effect on losses and loss ratios of both unexpected catastrophes as well as large events that the authors term "blockbuster catastrophes." Insurers adapt to these catastrophic risks by raising insurance rates, leading to lower loss ratios after the catastrophic event. There is a widespread event of unexpected catastrophes and blockbuster catastrophes that reduces total premiums earned in the …

Should Judges Do Independent Research On Scientific Issues?, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Judges are deeply divided about the issue of independent research, which goes to the heart of their roles and responsibilities in the legal system. To many judges, doing independent research when confronted with new and unfamiliar material seems the most responsible and natural thing to do. To others, it represents the worst kind of overreaching and a threat to long-cherished adversarial values. But whether one supports the practice or not, one thing is clear. The issue of independent research deserves far greater attention than it has so far from jurists, academics, and practitioners alike.

Structural Laws And The Puzzle Of Regulating Behavior, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This Article offers a new way of thinking about over criminalization. It argues that in regulating behavior, legislatures have relied excessively on statutory prohibitions and ex post enforcement by police and prosecutors. Regulation by "fiat" alone is often inadequate; proscriptive laws need accompanying structural ones that can cabin behavior and help alter existing social norms. After developing a theoretical framework for distinguishing "fiat" from "structure," the Article tackles the puzzling question why legislatures persist in focusing almost exclusively on fiat-based measures despite the availability of more effective structural ones. The answer turns out to be surprisingly complex, ranging from institutional …

Inside The Administrative State: A Critical Look At The Practice Of Presidential Control, Lisa Schultz Bressman, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

From the inception of the administrative state, scholars have proposed various models of agency decision-making to render such decision-making accountable and effective, only to see those models falter when confronted by actual practice. Until now, the presidential control model has been largely impervious to this pattern. That model, which brings agency decision-making under the direction of the President, has strengthened over time, winning broad scholarly endorsement and bipartisan political support. But it, like prior models, relies on abstractions - for example, that the President represents public preferences and resists parochial pressures - that do not hold up as a factual …

An Empirical Analysis Of Ceo Employment Contracts: What Do Top Executives Bargain For?, Randall Thomas, Stewart J. Schwab

Vanderbilt Law School Faculty Publications

In this paper, we examine the key legal characteristics of 375 employment contracts between some of the largest 1500 public corporations and their Chief Executive Officers. We look at the actual language of these contracts, asking whether and in what ways CEO contracts differ from what are thought of as standard employment contract features for other workers. Our data provide some empirical answers to several common assertions or speculations about CEO contracts, and shed light on whether these contracts are negotiated solely to suit the preferences of CEOs or have provisions that insure that the employers' interests are also safeguarded. …

Does The Plaintiff Matter? An Empirical Analysis Of Lead Plaintiffs In Securities Class Actions, Randall Thomas, James D. Cox

Vanderbilt Law School Faculty Publications

The PSLRA's lead plaintiff provision was adopted in order to encourage large shareholders with claims in a securities fraud class action to step forward to become the class' representative. Congress' expectation was that these investors would actively monitor the conduct of a securities fraud class action so as to reduce the litigation agency costs that may arise when class counsel's interests diverge from those of the shareholder class. Proponents of the provision claimed that there would be substantial benefits from having institutional investors serve as lead plaintiffs. Now, ten years later, the claim that the lead plaintiff is a more …

Dangerousness And Expertise Redux, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Civil commitment, confinement under sexual predator laws, and many capital and noncapital sentences depend upon proof of a propensity toward violence. This Article discusses the current state of prediction science, in particular the advantages and disadvantages of clinical and actuarial prediction, and then analyzes how the rules of evidence should be interpreted in deciding whether opinions about propensity should be admissible. It concludes that dangerousness predictions that are not based on empirically derived probability estimates should be excluded from the courtroom unless the defense decides otherwise. This conclusion is not bottomed on the usual concern courts and commentators raise about …

Logic Without Experience: The Problem Of Federal Appellate Courts, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Conventional wisdom holds that federal jurisdiction is contracting and district court discretion is expanding. This Article argues that the conventional wisdom is wrong, and that the true doctrinal trends do not bode well for federal courts. The Supreme Court and the courts of appeals have begun to expand federal jurisdiction and contract judicial discretion, although few have noticed. The new jurisdictional trend is worrisome because the Court has not acknowledged - much less explained - its change of direction. As a result, the new rules are often unclear and inconsistent with existing precedent, leaving lower courts with little guidance. At …

Patients And Biobanks, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

The question about the privacy of medical information can be stated simply: To what extent can and should patients control what the medical record contains and who has access to it and for what purposes? Patients often have apparently conflicting views on this subject. On the one hand, we, as patients, say that we prize privacy and that we fear that information will be used to harm us. On the other hand, we value the benefits that come from improved communication among providers, such as having our visits covered by third party payers and advances in medical science, which often …

In Search Of A Unifying Principle For Article V Of The Uniform Trust Code: A Response To Professor Danforth, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

Professor Robert Danforth's exploration of spendthrift trusts in Article Five of the UTC and the Future of Creditors 'Rights in Trusts is a superb piece of work. Professor Danforth analyzes with considerable acuity the ins and outs of the specific rights creditors and beneficiaries of trusts have under the Uniform Trust Code (UTC). His article clearly represents the most detailed analysis of the new Code's approach to spendthrift trusts. Professor Danforth is determined to establish that Article V is not as creditor-friendly as its critics claim.2 His article is essentially an apologia, coupled with some proposed modifications so as to …

A Minimalist Approach To Corporate Income Taxation, Herwig J. Schlunk

Vanderbilt Law School Faculty Publications

An ever-shrinking hallmark of our federal income tax system is the apparent double taxation of some, but not all, business income. That is, some business income ultimately flows to the human shareholders of C corporations. These corporations pay corporate income tax on the taxable income they generate. Then, as and when such corporations distribute their after-corporate-income-tax income to their human shareholders (or equivalently, as and when their human shareholders sell their shares in such corporations), the human shareholders pay individual income tax on the amounts so distributed (or equivalently, on their capital gains).

A Lifetime Income Tax, Herwig J. Schlunk

Vanderbilt Law School Faculty Publications

Under current tax law, there can be considerable period-by-period divergence between a taxpayer's after-tax income and her desired or actual consumption. This divergence will cause the taxpayer to borrow. One can view such borrowing either as being incurred to fund consumption, or as being incurred to fund the taxpayer's income tax payments. If one takes the latter view, one can ask whether a good income tax law should force a taxpayer to borrow to pay her taxes. I answer the question in the negative, and propose a lifetime income tax that would eliminate the need for typical taxpayers to borrow …

Inside The Bankruptcy Judge's Mind, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

Specialization is common in medicine. Doctors become oncologists, radiologists, urologists, or even hernia repair specialists. Specialization is also common among practicing lawyers, who become estate planners or products liability lawyers or securities litigators. Judges, however, have historically been generalists who preside over any and all cases. This requires that judges become acquainted with the rules of civil procedure, the rules of criminal procedure, the evidentiary rules applicable to both civil and criminal cases, and the substantive law in almost every area. From the simplest slip-and-fall to the most complicated antitrust case, and nearly every civil and criminal action in between, …

Behavioral Genetics And Crime, In Context, Owen D. Jones

Vanderbilt Law School Faculty Publications

This Article provides an introduction to some of the key issues at the intersection of behavioral genetics and crime.

It provides, among other things, an overview of the emerging points of consensus, scientifically, on what behavioral genetics can and cannot tell us about criminal behavior. It also discusses a variety of important implications (as well as complexities) of attempting to use insights of behavioral genetics in legal contexts.

Same Old, Same Old: Scientific Evidence Past And Present, Edward K. Cheng

Vanderbilt Law School Faculty Publications

For over twenty years, and particularly since the Supreme Court's Daubert' decision in 1993, much ink has been spilled debating the problem of scientific evidence in the courts. Are jurors or, in the alternative, judges qualified to assess scientific reliability? Do courts really need to be concerned about "junk science"? What mechanisms can promote better decision making in scientific cases? Even a cursory scan of the literature shows the recent explosion of interest in these issues, precipitating new treatises, hundreds of articles, and countless conferences for judges, practitioners, and academics.

Reconceptualizing Due Process In Juvenile Justice: Contributions From Law And Social Science, Christopher Slobogin, Mark R. Fondacaro, Tricia Cross

Vanderbilt Law School Faculty Publications

This article challenges the accepted wisdom, at least since the Supreme Court's decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. That means that the central goal in juvenile justice is fundamental fairness, which does not have to be congruent with the …

Tarasoff As A Duty To Treat: Insights From Criminal Law, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In most jurisdictions, the Tarasoff duty is defined as a duty on the part of mental health professionals to act on patient threats of serious harm to identified individuals. Although breach of this duty has, to date, only led to civil liability, a good case can that it should lead to criminal liability as well, not just for something minor like a failure to report a potential crime, but for the felony committed by the patient. Furthermore, to the extent Tarasoff requires merely a warning after a serious threat to an identified victim, this civil and criminal liability could logically …

Law And Emotion: A Proposed Taxonomy Of An Emerging Field Special Edition, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Many scholars - from fields as diverse as psychology, law, philosophy, and neuroscience - have begun to study the intersection of emotion and law. I describe that scholarship's development; propose that it is organized along six interrelated but theoretically distinct foci; and suggest directions for future research.

The notion that reason and emotion are cleanly separable - and that law admits only of the former - is deeply engrained, though it recently has come under attack. Law and emotion scholarship proceeds from the beliefs that emotion may be specifically studied, that it is relevant to law, and that its legal …

The Puzzle Of State Constitutions, Jim Rossi

Vanderbilt Law School Faculty Publications

In a series of groundbreaking articles published over the past fifteen years, James Gardner has led the charge to make state constitutionalism a part of the constitutional law discussion more generally. His new book, Interpreting State Constitutions: A Jurisprudence of Function in a Federal System, steps beyond his study of specific issues in state constitutionalism to lay out an ambitious theory about how state constitutions should be interpreted based on their function within a federal system. Gardner's book is a significant scholarly effort to take state constitutions seriously, in a way that transcends any one jurisdiction or constitutional provision. Gardner's …

Skin-Tone Effects Among African Americans: Perceptions And Reality, Joni Hersch

Vanderbilt Law School Faculty Publications

It is commonly assumed that lighter skinned African Americans receive preferential treatment over darker skinned counterparts. Using individual data from three sources, this paper examines the influence of skin tone on education and on wages. Lighter skin tone has a consistent positive impact on educational attainment but has a less consistent influence on wages. Possible mechanisms by which skin tone differences might influence economic outcomes are investigated, including measurement error, perceived attractiveness, access to integrated schools or work groups, perceived discrimination, and genetic differences. The perception that there is differential treatment on the basis of skin tone is more pronounced …

Sex Discrimination In The Labor Market, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper examines sources of gender pay disparity and the factors that contribute to this pay gap. Many researchers question the role of discrimination and instead attribute the residual pay gap to gender differences in preferences. The main issue considered in this paper is whether gender differences in choices, especially with respect to the family and household, are indeed responsible for the gender pay gap, or whether discrimination plays a role. On balance, the evidence indicates that sex discrimination remains a possible explanation of the unexplained gender pay gap. This is consistent with the continuing high profile sex discrimination litigation …

Demand For A Jury Trial And The Selection Of Cases For Trial, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper uses a unique data set to examine how parties in civil litigation choose whether to demand a jury trial or to waive this right and whether trial forum influences the probability of trial versus settlement. Plaintiffs are more likely to demand trial by jury when juries are relativety more favorable to plaintiffs in similar cases and jury trials are relatively less costly than bench trials. Cases in which jury trials are demanded are 5.5 percentage points more ikely to settle without a trial than cases in which jury trials are waived. This differential settlement rate by potential trial …

Insurers, Illusions Of Judgment & Litigation, Chris Guthrie, Jeffrey J. Rachlinski

Vanderbilt Law School Faculty Publications

Insurers play a critical role in the civil justice system. By providing liability insurance to parties who would otherwise be untenable as defendants, insurers make litigation possible. Once litigation materializes, insurers provide representation, pay legal fees, and often play a central role in resolving disputes through settlement or adjudication. In this paper, we explore empirically how these key litigation players make important decisions in the litigation process, like evaluating a case, deciding whether to settle, and if so, on what terms. We find that insurers, though not entirely immune to the effects of cognitive illusions that have been shown to …

"Eggshell" Victims, Private Precautions, And The Societal Benefits Of Shifting Crime, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Individuals spend billions of dollars every year on precautions to protect themselves from crime. Yet the legal academy has criticized many private precautions because they merely shift crime onto other, less guarded citizens, rather than reduce crime. The conventional wisdom likens such precaution-taking to rent-seeking: citizens spend resources to shift crime losses onto other victims, without reducing the size of those losses to society. The result is an unambiguous reduction in social welfare. This Article argues that the conventional wisdom is flawed because it overlooks how the law systematically understates the harms suffered by some victims of crime, first, by …