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My Patent, Your Patent, Or Our Patent? Inventorship Disputes Within Academic Research Groups, Sean B. Seymore Jan 2006

My Patent, Your Patent, Or Our Patent? Inventorship Disputes Within Academic Research Groups, Sean B. Seymore

Vanderbilt Law School Faculty Publications

The statutory requirement of identifying the first and true inventor is often muddled by the mores and practices of academic science. Unfortunately, and despite claims of scientists and attorneys to the contrary, I contend that the inventive entity is not discovered but rather determined in and through social relationships. Although universities should always strive to promulgate policies which fully comport with the law, the biggest incentive for universities to insist on correct inventorship is financial. I argue that the rise in mentee claims for sole or joint inventorship, as well as the ever-present threat of an inequitable conduct defense in ...


Reconceptualizing Due Process In Juvenile Justice: Contributions From Law And Social Science, Christopher Slobogin, Mark R. Fondacaro, Tricia Cross Jan 2006

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 ...


Tarasoff As A Duty To Treat: Insights From Criminal Law, Christopher Slobogin Jan 2006

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 ...


Logic Without Experience: The Problem Of Federal Appellate Courts, Suzanna Sherry Jan 2006

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 the same ...


An Empirical Analysis Of Ceo Employment Contracts: What Do Top Executives Bargain For?, Randall Thomas, Stewart J. Schwab Jan 2006

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 Jan 2006

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 ...


The President's Statutory Powers To Administer The Laws, Kevin M. Stack Jan 2006

The President's Statutory Powers To Administer The Laws, Kevin M. Stack

Vanderbilt Law School Faculty Publications

When does a statute grant powers to the President as opposed to other officials? Prominent theories of presidential power argue or assume that any statute granting authority to an executive officer also implicitly confers that authority upon the President. This Article challenges that statutory construction. It argues that the President has statutory authority to direct the administration of the laws only under statutes which grant to the President in name. Congress's enduring practice of granting power to executive officers subject to express conditions of presidential control supports a strong negative inference that the President has no directive authority when ...


Dangerousness And Expertise Redux, Christopher Slobogin Jan 2006

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 ...


A Minimalist Approach To Corporate Income Taxation, Herwig J. Schlunk Jan 2006

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 Jan 2006

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 ...


In Search Of A Unifying Principle For Article V Of The Uniform Trust Code: A Response To Professor Danforth, Jeffrey Schoenblum Jan 2006

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 ...


In Defense Of Regulatory Peer Review, J.B. Ruhl, James Salzman Jan 2006

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 ...


State Executive Lawmaking In Crisis, Jim Rossi Jan 2006

State Executive Lawmaking In Crisis, Jim Rossi

Vanderbilt Law School Faculty Publications

Courts and scholars have largely overlooked the constitutional source and scope of a state executive's powers to avert and respond to crises. This Article addresses how actual and perceived legal barriers to executive authority under state constitutions can have major consequences beyond a state's borders during times of crisis. It proposes to empower state executives to address federal and regional goals without any previous authorization from the state legislature-a presumption of state executive lawmaking, subject to state legislative override, which would give a state or local executive expansive lawmaking authority within its system of government to address national ...


The Puzzle Of State Constitutions, Jim Rossi Jan 2006

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 ...


A Cognitive Theory Of Trust, Erin O'Connor Jan 2006

A Cognitive Theory Of Trust, Erin O'Connor

Vanderbilt Law School Faculty Publications

Interpersonal trust is currently receiving widespread attention in the academy. Many legal scholars incorrectly assume that interpersonal trust is an unmitigated good (or bad) and that legal policy should therefore be crafted to maximize (or minimize) trust. A more nuanced understanding of trust indicates instead that it should be promoted or discouraged, depending on the context. Such an understanding needs to reflect the fact that trust and distrust can, and often do, coexist. In most relationships, the parties trust one another with regard to some matters and yet distrust one another with regard to other matters. More specifically, developing a ...


Skin-Tone Effects Among African Americans: Perceptions And Reality, Joni Hersch Jan 2006

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 ...


Demand For A Jury Trial And The Selection Of Cases For Trial, Joni Hersch Jan 2006

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 ...


"Eggshell" Victims, Private Precaustions, And The Societal Benefits Of Shifting Crime, Robert A. Mikos Jan 2006

"Eggshell" Victims, Private Precaustions, 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 ...


Reasonableness Review After Booker, Nancy J. King Jan 2006

Reasonableness Review After Booker, Nancy J. King

Vanderbilt Law School Faculty Publications

About a year ago, the Supreme Court in United States v. Booker declared a new standard for the appellate review of federal sentences-reasonableness. Justice Breyer, writing for the Court, asserted reassuringly that the reasonableness standard is not really new at all because judges had been applying it for years to review sentences for crimes lacking specific guidelines, sentences imposed after probation revocation, and, at least until 2003, sentences based upon departures from the recommended guideline range. Like most new legal standards that take shape case-by-case through the appellate process, reasonableness review is developing incrementally, creeping more clearly into view with ...


Emotional Competence, "Rational Understanding," And The Criminal Defendant, Terry A. Maroney Jan 2006

Emotional Competence, "Rational Understanding," And The Criminal Defendant, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Adjudicative competence, more commonly referred to as competence to stand trial, is a highly under-theorized area of law. Though it is well established that, to be competent, a criminal defendant must have a "rational" as well as 'factual" understanding of her situation, the meaning of such "rational understanding" has gone largely undefined. Given the large number of criminal prosecutions in which competence is at issue, the doctrine's instability stands in stark contrast to its importance. This Article argues that adjudicative competence, properly understood, asks whether a criminal defendant has capacity to participate meaningfully in the host of decisions potentially ...


Inside The Administrative State: A Critical Look At The Practice Of Presidential Control, Lisa Schultz Bressman, Michael P. Vandenbergh Jan 2006

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 matter. Although ...


Should Judges Do Independent Research On Scientific Issues?, Edward K. Cheng Jan 2006

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.


Same Old, Same Old: Scientific Evidence Past And Present, Edward K. Cheng Jan 2006

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.


Specific Investment: Explaining Anomalies In "Corporate Law", Margaret M. Blair, Lynn A. Stout Jan 2006

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 ...


Patients And Biobanks, Ellen Wright Clayton Jan 2006

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 ...


Getting The Math Right, Paul H. Edelman Jan 2006

Getting The Math Right, Paul H. Edelman

Vanderbilt Law School Faculty Publications

Over the last 40 years of one person, one vote jurisprudence, the Supreme Court has distilled a stable and predictable test for resolving the basic numerical issue in equal representation: how much population difference between districts is permissible? Yet there remains one area of representation into which the Court has refused to venture: apportionment of Congress. In its only opinion on the mechanics of the decennial of apportionment, the Court deferred to Congress. It deferred because, unlike districting, it could not find a single workable measure for apportionment. But the reason it could not find such a measure was that ...


The Allocation Problem In Multiple-Claimant Representations, Paul H. Edelman, Richard A. Nagareda, Charles Silver Jan 2006

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 ...


An Empirical Study Of Empirical Legal Scholarship: The Top Law Schools, Tracey E. George Jan 2006

An Empirical Study Of Empirical Legal Scholarship: The Top Law Schools, Tracey E. George

Vanderbilt Law School Faculty Publications

Empirical legal scholarship is arguably the most significant emerging intellectual movement. Empirical legal scholarship (ELS), as the term is generally used in law schools, refers to a specific type of empirical research: a model-based approach coupled with a quantitative method. This paper ranks law schools based on their place in the ELS movement and offers an essential ranking framework that can be adopted for other intellectual movements. A revised version of the paper was posted on October 11. The updated tables reflect additional data.


An Empirical Analysis Of Ceo Employment Contracts: What Do Top Executives Bargain For?, Randall S. Thomas, Stewart J. Schwab Jan 2006

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

Vanderbilt Law School Faculty Publications

n 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 ...


Structural Laws And The Puzzle Of Regulating Behavior, Edward K. Cheng Jan 2006

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 ...