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Mental Disorder As An Exemption From The Death Penalty: The Aba-Irr Task Force Recommendations, Christopher Slobogin Jan 2005

Mental Disorder As An Exemption From The Death Penalty: The Aba-Irr Task Force Recommendations, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The Task Force on Mental Disability and the Death Penalty (Task Force) established by the Individual Rights and Responsibilities Section of the American Bar Association (ABA-IRR) has proposed that the ABA adopt three recommendations concerning the role of mental disability in capital cases. The first two recommendations call for a prohibition on execution of offenders whose mental disorder rendered them less culpable at the time of the offense, and the third would prohibit execution of those whose mental disability currently renders them incompetent to pursue appeals or to be executed. This Article discusses the first two, culpability-related, recommendations. With respect ...


Subpoenas And Privacy, Christopher Slobogin Jan 2005

Subpoenas And Privacy, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This symposium article, the first of two on regulation of government's efforts to obtain paper and digital records of our activities, analyzes the constitutional legitimacy of subpoenas. Whether issued by a grand jury or an administrative agency, subpoenas are extremely easy to enforce, merely requiring the government to demonstrate that the items sought pursuant to the subpoena are "relevant" to a investigation. Yet today subpoenas and pseudo-subpoenas are routinely used not only to obtain business records and the like, but also documents containing significant amounts of personal information about individuals, including medical, financial, and email records. Part I provides ...


Politics And Judgment, Suzanna Sherry Jan 2005

Politics And Judgment, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Two hundred years after its most famous invocation in Marbury v. Madison, judicial review has apparently lost its luster. Despite its global spread, it is in disrepute in its country of origin. The mainstream American academic attitude toward judicial review as practiced by the modern Supreme Court ranges from open hostility to a position similar to Winston Churchill's on democracy: It is the worst way to implement a Constitution, except for all the rest. This essay, part of a larger book project with Daniel Farber, provides one explanation of the source of the hostility, defends judicial review against its ...


Letting Billions Slip Through Your Fingers: Empirical Evidence And Legal Implications Of The Failure Of Financial Institutions To Participate In Securities Class Action Settlements, Randall Thomas, James D. Cox Jan 2005

Letting Billions Slip Through Your Fingers: Empirical Evidence And Legal Implications Of The Failure Of Financial Institutions To Participate In Securities Class Action Settlements, Randall Thomas, James D. Cox

Vanderbilt Law School Faculty Publications

This article presents the results of an empirical investigation of the frequency with which financial institutions submit claims in settled securities class actions. We combine an empirical study of a large set of settlements with the results of a survey of institutional investors about their claims filing practices. Our sample for the first part of the analysis contains 118 settlements that were not included in our earlier study. We find that less than 30% of institutional investors with provable losses perfect their claims in these settlements. We then explore the possible explanations for this widespread failure. We suggest a wide ...


The Statutory President, Kevin M. Stack Jan 2005

The Statutory President, Kevin M. Stack

Vanderbilt Law School Faculty Publications

American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. In this Article, I develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should ...


Symposium: International Legal Dimensions Of Art And Cultural Property, Jeffrey Schoenblum Jan 2005

Symposium: International Legal Dimensions Of Art And Cultural Property, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

The market for art and cultural property is international. Demand is intense and not particularly local in terms of consumer preference. 2 Supply responds to this intense international demand. Like most anything else, art finds its way to whomever is prepared to pay for it. Regulation affects how it arrives at its ultimate destination, but generally does not prevent it from getting there. Apart from this international market, legal and policy aspects of art and cultural property have a distinctly international flavor due to historical circumstance. Since many works over time have been removed from their source by way of ...


Toward A Common Law Of Ecosystem Services, J.B. Ruhl Jan 2005

Toward A Common Law Of Ecosystem Services, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This article suggests ways in which the common law can integrate concepts of ecosystem services to fulfill pragmatic objectives of common law doctrine. Rather than requiring a radical departure from traditional common law doctrine as is often proposed in environmental literature on the common law, ecosystem services can fold seamlessly into existing common law principles as a source of new knowledge and changed circumstances.


Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim Rossi Jan 2005

Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim Rossi

Vanderbilt Law School Faculty Publications

Frequently, state-wide executive agencies and localities attempt to implement federally-inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally-inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made. This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally-inspired programs. To the extent the predominant ways of resolving the tension come ...


Empirical Measures Of Judicial Performance: An Introduction To The Symposium, Jim Rossi, Steven G. Gey Jan 2005

Empirical Measures Of Judicial Performance: An Introduction To The Symposium, Jim Rossi, Steven G. Gey

Vanderbilt Law School Faculty Publications

Inspired by the burgeoning empirical literature on the judiciary, the editors of the Florida State University Law Review have solicited some papers from leading scholars and federal courts of appeals judges, asking them to address the topic of empirical measures of judicial performance. The papers in this "Symposium on Empirical Measures of Judicial Performance" address empirical measures of judicial performance from a variety of methodological perspectives, but as this Foreword suggests, they can roughly be organized around three basic themes. First, many of the papers critique the empirical enterprise itself and especially the tournament strategy for evaluating judges, although these ...


Moving Public Law Out Of The Deference Trap In Regulated Industries, Jim Rossi Jan 2005

Moving Public Law Out Of The Deference Trap In Regulated Industries, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article argues that public law has fallen into what I call a deference trap in addressing conflicts in deregulated industries, such as telecommunications and electric power. The deference trap describes a judicial reluctance to intervene in disputes involving political institutions, such as regulatory agencies and states. By reassessing the deference trap across the legal doctrines that are effecting emerging telecommunications and electric power markets, public law can deliver much more for deregulated markets. The deference trap poses a particular cost as markets are deregulated, one that may not have been present during previous regulatory eras in which public and ...


Political Bargaining And Judicial Intervention In Constitutional And Antitrust Federalism, Jim Rossi Jan 2005

Political Bargaining And Judicial Intervention In Constitutional And Antitrust Federalism, Jim Rossi

Vanderbilt Law School Faculty Publications

Federal judicial deference to state and local regulation is at the center of contentious debates regarding the implementation of competition policy. This Article invokes a political process bargaining framework to develop a principled approach for addressing the appropriate level of judicial intervention under the dormant commerce clause and state action immunity from antitrust enforcement. Using illustrations from network industries, it is argued that, at core, these two independent doctrines share a common concern with political (not only market) failure by focusing on the incentives faced by powerful stakeholders in state and local lawmaking. More important, they share the common purpose ...


Regulation By Adaptive Management--Is It Possible?, J.B. Ruhl Jan 2005

Regulation By Adaptive Management--Is It Possible?, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Today's voluminous literature on adaptive management traces its roots to Professor C.S. Holling's seminal work, Adaptive Environmental Assessment and Management. Although almost thirty years have passed since he and his colleagues first described the adaptive management methodology, no work on the topic has improved on their core theory. Its essence is an iterative, incremental decisionmaking process built around a continuous process of monitoring the effects of decisions and adjusting decisions accordingly. It is in other words, far more suited to the needs of future regulatory challenges than is prescriptive regulation. My focus, however, is not on what ...


Victim Participation In The Criminal Process, Erin O'Connor Jan 2005

Victim Participation In The Criminal Process, Erin O'Connor

Vanderbilt Law School Faculty Publications

This essay does not promote the Victims' Rights Amendment16 or advocate any other specific victims' rights proposal. 17 Rather, it suggests that, as a positive matter, victim involvement in the criminal process is becoming and will continue to be a reality of our criminal justice process. Too often law professors feel content to dogmatically insist that crimes are wrongs committed against the public rather than an individual and that, therefore, victim involvement in criminal cases beyond the potential witness capacity is inappropriate.' 8 Contrary to their assertions, however, victims have been involved in the disposition of criminal cases for much ...


The Iraqi Special Tribunal: A Human Rights Perspective, Michael A. Newton Jan 2005

The Iraqi Special Tribunal: A Human Rights Perspective, Michael A. Newton

Vanderbilt Law School Faculty Publications

The creation of the Iraqi Special Tribunal in December 2003 by Iraqi authorities who were at the time under the legal occupation of the Coalition Provisional Authority marked the emergence of a new form of internationalized domestic tribunals. The Iraqis succeeded in incorporating the full range of modern crimes into their domestic codes alongside some carefully selected domestic offenses, while amending domestic procedural law in some key ways to align the process with established international law related to the provision of full and fair trials. The subsequent investigations and the beginning of trial proceedings generated major debates about the legitimacy ...


Public And Private Enforcement Of The Securities Laws: Have Things Changed Since Enron?, Randall Thomas, James D. Cox Jan 2005

Public And Private Enforcement Of The Securities Laws: Have Things Changed Since Enron?, Randall Thomas, James D. Cox

Vanderbilt Law School Faculty Publications

In this paper, we examine how those corporations that have been the targets of SEC enforcement efforts compare in terms of their size and financial health vis-a-vis firms that are targeted only by the private securities class action. We also ask whether the SEC or the private bar systematically proceeds against violators that cause the greatest loss to investors. In this regard, we are intrigued by the most basic question posed by private suits, whether settlements bear any relationship to the losses suffered by the class and whether those losses bear any relationship to the size of either the firm ...


What Is Corporate Law's Place In Promoting Societal Welfare?: An Essay In Honor Of Professor William Klein, Randall Thomas Jan 2005

What Is Corporate Law's Place In Promoting Societal Welfare?: An Essay In Honor Of Professor William Klein, Randall Thomas

Vanderbilt Law School Faculty Publications

This is a short essay on what should be the fundamental criterion used to evaluate corporate law. I argue that the overall goal of good corporate law should be to assist private parties to create wealth for themselves and the economy in a manner that does not inflict uncompensated negative externalities upon third parties. Private businesses that produce goods and services should be encouraged by the state because creating greater wealth is generally beneficial to society. Corporate law can act as a helpful precondition for faster economic growth by protecting the parties' expectations, encouraging savings and investment, reducing transaction costs ...


Adverse Possession Of Identity: Radical Theory, Conventional Practice, Jessica A. Clarke Jan 2005

Adverse Possession Of Identity: Radical Theory, Conventional Practice, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

This Article examines the conditions under which acting as if one has a particular legal status is sufficient to secure that status in the eyes of the law. Legal determinations of common-law marriage, functional parenthood, and racial identity share striking similarities to adverse possession law – these doctrines confer legal status on those who are merely acting as if they have that legal status. In each case, the elements of a legal claim are strikingly similar: physical proximity, notoriety and publicity, a claim of right, consistent and continuous behavior, and public acquiescence. The reason public performance is critical is that these ...


Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais Jan 2005

Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This paper argues that international copyright treaties, such as the WTO TRIPS Agreement, should no longer be developed as sets of minimum standards with a standardized exception filter, namely the three-step test, but rather include a normative standard for the copyright rights themselves. In seeking harmony between rights and exceptions, and in light of copyright haphazard evolution (by simply adding new rights when a new way of using protected content was invented), a single new core norm is proposed: the reverse three-step test.


The Purpose Of Copyright Law In Canada, Daniel J. Gervais Jan 2005

The Purpose Of Copyright Law In Canada, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

IN THREE RECENT CASES, the Supreme Court of Canada provided several pieces of the Canadian copyright policy puzzle. We now know that the economic purpose of copyright law is instrumentalist in nature, namely, to ensure the orderly production and distribution of, and access to, works of art and intellect. The Court added that copyright can not enter carelessly into the private sphere of individual users. By targeting end-users in recent lawsuits, copyright holders have also found out that it is difficult to enforce a right that has not been properly internalized. After reviewing the Supreme Court trilogy of cases, the ...


The Private Life Of Public Law, Michael P. Vandenbergh Jan 2005

The Private Life Of Public Law, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article proposes a new conception of the administrative regulatory state that accounts for the vast networks of private agreements that shadow public regulations. The traditional account of the administrative state assigns a limited role to private actors: private firms and interest groups seek to influence regulations, and after the regulations are finalized, regulated firms face a comply-or-defy decision. In recent years, scholars have noted that private actors play an increasing role in the traditional government standard setting, implementation and enforcement functions. This Article demonstrates that the private role in each of these regulatory functions is far greater than others ...


The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Chris Guthrie, Tracey E. George Jan 2005

The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases).


The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Tracey E. George, Chris Guthrie Jan 2005

The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases).


Traditional Knowledge & Intellectual Property: A Trips-Compatible Approach, Daniel J. Gervais Jan 2005

Traditional Knowledge & Intellectual Property: A Trips-Compatible Approach, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Should intellectual property provide a means for strengthening the range of incentives that local communities need for conserving and developing genetic resources and traditional knowledge (TK)? If so, how and at what cost? To be able to suggest answers, a number of issues must be resolved. They are the focus of the Article. First, one must build, and then cross, a cultural bridge to explain current forms of intellectual property to holders of traditional knowledge, including definitional efforts to determine the nature and depth of the overlap(s). This achieves a dual objective: it allows intellectual property circles to understand ...


Can Judges Ignore Inadmissible Information? The Difficulty Of Deliberately Disregarding, Chris Guthrie, Andrew J. Wistrich Jan 2005

Can Judges Ignore Inadmissible Information? The Difficulty Of Deliberately Disregarding, Chris Guthrie, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

Due process requires courts to make decisions based on the evidence before them without regard to information outside of the record. Skepticism about the ability of jurors to ignore inadmissible information is widespread. Empirical research confirms that this skepticism is well founded. Many courts and commentators, however, assume that judges can accomplish what jurors cannot. This Article reports the results of experiments we have conducted to determine whether judges can ignore inadmissible information. We found that the judges who participated in our experiments struggled to perform this challenging mental task. The judges had difficulty disregarding demands disclosed during a settlement ...


Law And Behavioral Biology, Owen D. Jones, Timothy H. Goldsmith Jan 2005

Law And Behavioral Biology, Owen D. Jones, Timothy H. Goldsmith

Vanderbilt Law School Faculty Publications

Society uses law to encourage people to behave differently than they would behave in the absence of law. This fundamental purpose makes law highly dependent on sound understandings of the multiple causes of human behavior. The better those understandings, the better law can achieve social goals with legal tools. In this Article, Professors Jones and Goldsmith argue that many long held understandings about where behavior comes from are rapidly obsolescing as a consequence of developments in the various fields constituting behavioral biology. By helping to refine law's understandings of behavior's causes, they argue, behavioral biology can help to ...


When Process Affects Punishment: Differences In Sentences After Guilty Plea, Bench Trial, And Jury Trial In Five Guidelines States, Nancy J. King, David A. Soule, Sara Steen, Robert R. Weidner Jan 2005

When Process Affects Punishment: Differences In Sentences After Guilty Plea, Bench Trial, And Jury Trial In Five Guidelines States, Nancy J. King, David A. Soule, Sara Steen, Robert R. Weidner

Vanderbilt Law School Faculty Publications

The research reported in this Essay examines process discounts-differences in sentences imposed for the same offense, depending upon whether the conviction was by jury trial, bench trial, or guilty plea-in five states that use judicial sentencing guidelines. Few guidelines systems expressly recognize "plea agreement" as an acceptable basis for departure, and none authorizes judges to vary sentences based upon whether or not the defendant waived his right to a jury trial and opted for a bench trial. Nevertheless, we predicted that because of the cost savings resulting from waivers, judges and prosecutors in any sentencing system would ensure that guilty ...


Order Without Social Norms: How Personal Norm Activation Can Protect The Environment, Michael P. Vandenbergh Jan 2005

Order Without Social Norms: How Personal Norm Activation Can Protect The Environment, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article tackles a leading problem confronting norms theorists and regulators: how can the law induce changes in behavior when the material costs to the individual outweigh the benefits and there is no close-knit community to impose sanctions for failure to change? Because private individuals and households are now surprisingly large contributors to environmental problems ranging from toxic pollution to climate change, environmental policy makers face compelling examples of these negative-payoff, loose-knit group situations. This Article suggests that internalized personal norms, rather than social norms, are the most important initial target of opportunity for influencing this kind of behavior.

Drawing ...


Waging War: Japan's Constitutional Constraints, John O. Haley Jan 2005

Waging War: Japan's Constitutional Constraints, John O. Haley

Vanderbilt Law School Faculty Publications

Both electoral results and public opinion polls have long revealed what most observers have viewed as a paradox if not a contradiction. By significant majorities, the Japanese people appear to oppose any revision of article 9, but support the SDF and their deployment with legislative sanction. The seemingly antithetical aspects of these views can be reconciled if one accepts the proposition that the public is willing to allow an armed force but only within parameters that are still ill-defined. So long as article 9 remains, the government is constrained by the need for legislative approval and at least potential judicial ...


Is U.S. Ceo Compensation Inefficient Pay Without Performance?, Randall Thomas, John E. Core, Wayne Guay Jan 2005

Is U.S. Ceo Compensation Inefficient Pay Without Performance?, Randall Thomas, John E. Core, Wayne Guay

Vanderbilt Law School Faculty Publications

In this paper, we review Pay Without Performance by Professors Lucian Bebchuk and Jesse Fried. The book develops and summarizes the leading critiques of current executive compensation practices in the U.S., and offers a negative, if mainstream, assessment of the state of U.S. executive compensation: U.S. executive compensation practices are failing, and systemic reform is needed. This review summarizes the book in some detail and offers some counter-arguments. The book's thesis is that executive compensation practices are bad for shareholders (not "optimal") because they are the product of "managerial power." Managerial power arises because boards of ...


The Civilization Of The Criminal Law, Christopher Slobogin Jan 2005

The Civilization Of The Criminal Law, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article explores the jurisprudential and practical feasibility of a "preventive" regime of criminal justice. More specifically, it examines an updated version of the type of government intervention espoused four decades ago by thinkers such as Barbara Wooton, Sheldon Glueck, and Karl Menninger. These individuals, the first a criminologist, the latter two mental health professionals, envisioned a system that is triggered by an antisocial act but that pays no attention to desert or even to general deterrence. Rather, the sole goal of the system they proposed is individual prevention through assessments of dangerousness and the provision of treatment designed to ...