Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 37

Full-Text Articles in Law

The Case For A Market In Debt Governance, Yesha Yadav Jan 2014

The Case For A Market In Debt Governance, Yesha Yadav

Vanderbilt Law School Faculty Publications

Scholars have long lamented that the growth of modern finance has given way to a decline in debt governance. According to current theory, the expansive use of derivatives that enable lenders to trade away the default risk of their loans has made these lenders uninterested, even reckless, when it comes to exercising creditor discipline. In contrast to current theory, this Article argues that such derivatives can prove a positive and powerful influence in debt governance. Theory has overlooked those who sell credit protection to lenders and assume default risk on the borrower. These protection sellers are left holding the economic ...


Making Patents Useful, Sean B. Seymore Jan 2014

Making Patents Useful, Sean B. Seymore

Vanderbilt Law School Faculty Publications

It is axiomatic in patent law that an invention must be useful. The utility requirement has been a part of the statutory scheme since the Patent Act of 1790. But what does it mean to be useful? The abstract and imprecise nature of the term combined with the lack of objective criteria for assessing it make utility the most malleable patentability requirement. As the invention landscape has evolved over time, the Patent Office and the courts have exploited this malleability to create technologically specific utility standards — de minimis for some inventions, but considerably more stringent for others. This has ...


Lessons From Inquisitorialism, Christopher Slobogin Jan 2014

Lessons From Inquisitorialism, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The adversarial system as it is implemented in the United States is a significant cause of wrongful convictions, wrongful acquittals and “wrongful” sentences. Empirical evidence suggests that a hybrid inquisitorial regime would be better than the American-style adversarial system at reducing these erroneous results. This paper proposes the integration of three inquisitorial mechanisms into the American trial process — judicial control over the adjudication process, non-adversarial treatment of experts, and required unsworn testimony by the defendant — and defends the proposals against constitutional and practical challenges. While other scholars have suggested borrowing from overseas, these three proposals have yet ...


Introducing New Voices, Suzanna Sherry Jan 2014

Introducing New Voices, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Students rarely have the time to repackage last semester's research for submission to law reviews. Even if they do, law reviews are loathe to publish work submitted by students. Publication in a peer-reviewed journal is unlikelier still. Enter NEW VOICES. Our best students are the next generation of scholars, the academic farm team as it were. If we can identify and nurture them early, perhaps they will produce better scholarship down the road. And reading their work can invigorate our own, by allowing us to see things in a fresh new light.


Cause To Believe What? The Importance Of Defining A Search's Object--Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, Christopher Slobogin Jan 2014

Cause To Believe What? The Importance Of Defining A Search's Object--Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the “mere evidence rule” in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the “object” of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search “might lead to evidence of wrongdoing” triggers a very different inquiry than probable cause to believe that a search “will produce evidence of criminal activity.” The failure to address the constraints ...


Empirical Desert And Preventive Justice: A Comment, Christopher Slobogin Jan 2014

Empirical Desert And Preventive Justice: A Comment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This essay is a response to an article by Paul Robinson, Joshua Barton, and Matthew Lister in this issue of New Criminal Law Review that criticizes an article I authored with Lauren Brinkley-Rubinstein entitled Putting Desert in Its Place, which was itself an analysis ofseveral works published by Robinson and various coauthors making the case for "empirical desert." Robinson's suggestion that utility can be optimized by a focus on desert as it is viewed by the average citizen opens up a new line of inquiry that could lead to a better appreciation of the influence desert should have on ...


The Classical Constitution And The Historical Constitution: Separated At Birth, Suzanna Sherry Jan 2014

The Classical Constitution And The Historical Constitution: Separated At Birth, Suzanna Sherry

Vanderbilt Law School Faculty Publications

No abstract provided.


Passive Takings, Christopher Serkin Jan 2014

Passive Takings, Christopher Serkin

Vanderbilt Law School Faculty Publications

As conventionally understood, regulatory takings doctrine protects property owners from the most significant costs of legal transitions. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be, and that governments can violate the Takings Clause by failing to act in the face of a changing world. This is much more than a minor refinement of takings law because government liability for failing to act means that, in at least some circumstances, the Takings Clause imposes an affirmative obligation on the government to protect property. This liability runs counter to ...


Strange Bedfellows, Jeffrey Schoenblum Jan 2014

Strange Bedfellows, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

With the maximum rate of federal income tax at 39.6 percent, the Medicare surtax on investment income of 3.8 percent, and some state income tax rates exceeding 9 percent, taxpayers in the highest brackets have been seeking to develop strategies to lessen the tax burden. One strategy that has been receiving increased attention is the use of a highly specialized trust known as the NING, a Nevada incomplete gift nongrantor trust, which eliminates state income taxation of investment income altogether without generating additional federal income or transfer taxes. A major obstacle standing in the way of accomplishing this ...


Symposium: The Role Of Federal Law In Private Wealth Transfer, Jeffrey Schoenblum Jan 2014

Symposium: The Role Of Federal Law In Private Wealth Transfer, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

Increasingly, federal law impacts court decisions involving private wealth transfer. Increasingly, federal law is the central consideration in premortem and postmortem planning for private wealth transfer. Despite this, until recently, little scholarly attention has been paid to this phenomenon; the assumption regarding the centrality of state law, quoted above, having gone largely unquestioned. But now that the "sleeping giant" has awakened, the role that federal law plays in private wealth transfer requires serious and comprehensive academic consideration.


Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig Jan 2014

Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig

Vanderbilt Law School Faculty Publications

Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best practices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure ...


"Maladaptive" Federalism: The Structural Barriers To Coordination Of State Sustainability Initiatives, Jim Rossi Jan 2014

"Maladaptive" Federalism: The Structural Barriers To Coordination Of State Sustainability Initiatives, Jim Rossi

Vanderbilt Law School Faculty Publications

While the federal government has been slow to address problems such as climate change, many states have adopted innovative approaches to address the climate impact of using natural resources to produce energy, including aggressive approaches to regulating carbon emissions and renewable and clean energy standards. This Article identifies an emerging challenge that subnational regulation faces in the energy and environmental context -- what I will call “maladaptive” federalism -- and argues that federalism discussions need to account for its possibility. Part I highlights adaptive regulation as a form of federalism, echoing a vision for subnational regulation many federalism scholars and policymakers ...


Electric Power Resource "Shuffling" And Subnational Carbon Regulation: Looking Upstream For A Solution, Jim Rossi, Andrew J.D. Smith Jan 2014

Electric Power Resource "Shuffling" And Subnational Carbon Regulation: Looking Upstream For A Solution, Jim Rossi, Andrew J.D. Smith

Vanderbilt Law School Faculty Publications

"Resource shuffling" occurs when different subnational approaches to carbon regulation create variations in the costs of production across jurisdictions. California is the most aggressive jurisdiction in the United States to address climate change and has adopted a cap & trade program for its greenhouse gas (GHG) emissions. This Article addresses the resource shuffling issue presented by California's cap-and-trade program and evaluates the merits of various legal and regulatory solutions to the problem.


Managing Systemic Risk In Legal Systems, J.B. Ruhl Jan 2014

Managing Systemic Risk In Legal Systems, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The American legal system has proven remarkably robust even in the face vast and often tumultuous political, social, economic, and technological change. Yet our system of law is not unlike other complex social, biological, and physical systems in exhibiting local fragility in the midst of its global robustness. Understanding how this “robust yet fragile” (RYF) dilemma operates in legal systems is important to the extent law is expected to assist in managing systemic risk — the risk of large local or even system-wide failures — in other social systems. Indeed, legal system failures have been blamed as partly responsible ...


The Permit Power Revisited, J.B. Ruhl, Eric Biber Jan 2014

The Permit Power Revisited, J.B. Ruhl, Eric Biber

Vanderbilt Law School Faculty Publications

Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the “permit power,” under which legislatures prohibit a specified activity by statute and delegate administrative agencies discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Describing the permit power, accurately, as an “enormous power in the state,” Epstein bemoaned that it had “received scant attention in the academic literature.” He sought to fill that gap. Centered on his premise that the permit power represents ...


The Essential Role Of Courts For Supporting Innovation, Erin O'Connor Jan 2014

The Essential Role Of Courts For Supporting Innovation, Erin O'Connor

Vanderbilt Law School Faculty Publications

Commercial parties commonly resolve their disputes in arbitration rather than courts. In fact, some estimate that as many as 90 percent of international commercial contracts opt for arbitration of future disputes, and others claim that some industries never resort to courts. However, a study of arbitration clauses in a wide variety of contracts, including franchise agreements, CEO employment contracts, technology contracts, joint venture agreements and consumer cell phone contracts, reveals that parties very often carve out a right to resort to courts for the resolution of claims designed to protect information, innovation, and reputation. Studies of international and cross-border contracts ...


Ineffective Assistance Of Counsel Before "Powell V. Alabama": Lessons From History For The Future Of The Right To Counsel, Sara Mayeux Jan 2014

Ineffective Assistance Of Counsel Before "Powell V. Alabama": Lessons From History For The Future Of The Right To Counsel, Sara Mayeux

Vanderbilt Law School Faculty Publications

In the first Part of this Essay, I outline the common law agency rule that precluded reversal of a judgment on the basis of counsel negligence. While this rule was developed in civil litigation, state judges also applied it in criminal appeals. In many states, judges continued to apply the rule strictly through the 1920S or even later.35 However, from the 188os through the 1920s, some state judges moved toward a more flexible application of the rule in criminal cases. Though judges still recited the traditional rule that counsel negligence could not be grounds for a new trial, they ...


Better Bounty Hunting, Amanda Rose Jan 2014

Better Bounty Hunting, Amanda Rose

Vanderbilt Law School Faculty Publications

The SEC’s new whistleblower bounty program has provoked significant controversy. That controversy has centered on the failure of the implementing rules to make internal reporting through corporate compliance departments a prerequisite to recovery. This Article approaches the new program with a broader lens, examining its impact on the longstanding debate over fraud-on-the-market (FOTM) class actions. The Article demonstrates how the bounty program, if successful, will replicate the fraud deterrence benefits of FOTM class actions while simultaneously increasing the costs of such suits — rendering them a pointless yet expensive redundancy. If instead the SEC proves incapable of effectively administering the ...


Contracting Around "Citizens United", Ganesh Sitaraman Jan 2014

Contracting Around "Citizens United", Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

The Supreme Court’s decision in Citizens United v. FEC is widely considered a major roadblock for campaign finance reform, and particularly for limiting third party spending in federal elections. In response to the decision, commentators, scholars, and activists have outlined a wide range of legislative and regulatory proposals to limit the influence of third party spending, including constitutional amendments, public financing programs, and expanded disclosure rules. To date, however, they have not considered the possibility that third party spending can be restrained by a self-enforcing private contract between the opposing campaigns. This Essay argues that private ordering, rather than ...


Credibility And War Powers, Ganesh Sitaraman Jan 2014

Credibility And War Powers, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In late August 2013, after Syrian civilians were horrifically attacked with sarin gas, President Barack Obama declared his intention to conduct limited airstrikes against the Syrian regime of President Bashar al-Assad. A year earlier, President Obama had announced that the use of chemical weapons was "red line" for the United States. Advocates for military action now argued that if the credibility of American threats diminished, dictators would have license to act with impunity. President Obama himself seemed to embrace this justification for action. "The international community’s credibility is on the line," he said in early September. "And America and ...


Cartels By Another Name: Should Licensed Occupations Face Antitrust Scrutiny?, Rebecca Haw Allensworth Jan 2014

Cartels By Another Name: Should Licensed Occupations Face Antitrust Scrutiny?, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

It has been over a hundred years since George Bernard Shaw wrote that “[a]ll professions are a conspiracy against the laity.” Since then, the number of occupations and the percentage of workers subject to occupational licensing have exploded; nearly one-third of the U.S. workforce is now licensed, up from five percent in the 1950s. Through occupational licensing boards, states endow cosmetologists, veterinary doctors, medical doctors, and florists with the authority to decide who may practice their art. It cannot surprise when licensing boards comprised of competitors regulate in ways designed to raise their profits. The result for consumers ...


Can I Be Sued For That? Liability Risk And The Disclosure Of Clinically Significant Genetic Research Findings, Ellen Wright Clayton Jan 2014

Can I Be Sued For That? Liability Risk And The Disclosure Of Clinically Significant Genetic Research Findings, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

Genomic researchers increasingly are faced with difficult decisions about whether, under what circumstances, and how to return research results and significant incidental findings to study participants. Many have argued that there is an ethical—maybe even a legal—obligation to disclose significant findings under some circumstances. At the international level, over the last decade there has begun to emerge a clear legal obligation to return significant findings discovered during the course of research. However, there is no explicit legal duty to disclose in the United States. This creates legal uncertainty that may lead to unmanaged variation in practice and poor ...


Shareholder Voting In An Age Of Intermediary Capitalism, Paul H. Edelman, Randall S. Thomas, Robert B. Thompson Jan 2014

Shareholder Voting In An Age Of Intermediary Capitalism, Paul H. Edelman, Randall S. Thomas, Robert B. Thompson

Vanderbilt Law School Faculty Publications

Shareholder voting is a key part of contemporary American corporate governance. As numerous contemporary battles between corporate management and shareholders illustrate, voting has never been more important. Yet, traditional theory about shareholder voting, rooted in concepts of residual ownership and a principal/agent relationship, does not reflect recent fundamental changes as to who shareholders are and their incentives to vote (or not vote). In the first section of the article, we address this deficiency directly by developing a new theory of corporate voting that offers three strong and complementary reasons for shareholder voting. In the middle section, we apply our ...


The Judges Of The U.S. Judicial Panel On Multidistrict Litigation, Tracey E. George, Margaret S. Williams Jan 2014

The Judges Of The U.S. Judicial Panel On Multidistrict Litigation, Tracey E. George, Margaret S. Williams

Vanderbilt Law School Faculty Publications

The United States Judicial Panel on Multidistrict Litigation (or "MDL Panel") is one of a small number of special federal courts created pursuant to Article III by Congress and staffed by a Chief-Justice-appointed group of Article III judges for limited terms. The MDL Panel is a powerful judicial institution with substantial discretion over complex litigation in the United States. For all practical purposes, it controls where many of the most far-reaching and significant private civil actions will be resolved which can affect procedural and substantive rights of the parties. An understanding of who has served on the MDL Panel would ...


Anatomy Of An Uprising: Women, Democracy, And The Moroccan Feminist Spring, Karla M. Mckanders Jan 2014

Anatomy Of An Uprising: Women, Democracy, And The Moroccan Feminist Spring, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

During the Arab Spring, Moroccan men and women first took to the streets on February 20, 2011 to demand governmental reforms. Their movement became known as the Mouvement du 20-Février. In a series of protests, Moroccans called for democratic change, lower food prices, freedom for Islamist prisoners, and rights for the Berber people. Initially, King Mohammad VI attempted to suppress the movement. When this approach did not succeed, in a televised speech, the King agreed to reform the government. In June 2011, the constitutional committee proposed changes that would reduce the King’s absolute powers, implement democratic reforms, and create ...


Copyright Infringement And The Separated Powers Of Moral Entrepreneurship, Joseph P. Fishman Jan 2014

Copyright Infringement And The Separated Powers Of Moral Entrepreneurship, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

This Article examines the copyright industries’ “moral entrepreneurs,” sociologist Howard Becker’s term for enterprising crusaders who seek to change existing social norms regarding particular conduct. Becker’s conception of moral entrepreneurship consists of two groups performing separate tasks: rule creators work to translate their preferred norms into legal prohibitions, and then a separate class of enforcers administer those prohibitions. In a limited sense, U.S. copyright law hews to this scheme. Legislation such as the No Electronic Theft Act of 1997 and the Artists’ Rights and Theft Prevention Act of 2005 has assigned the federal government an increasing role ...


Casting A Frand Shadow: The Importance Of Legally Defining "Fair And Reasonable" And How "Microsoft V. Motorola" Missed The Mark, Rebecca Haw Allensworth Jan 2014

Casting A Frand Shadow: The Importance Of Legally Defining "Fair And Reasonable" And How "Microsoft V. Motorola" Missed The Mark, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

High tech markets must strike an awkward balance between coordination and competition in order to achieve efficiency. The need for competition is familiar; antitrust--as well as many other legal institutions--recognizes that consumers benefit and resources are best allocated when producers face fierce competition. But at the same time, the interoperability of competing high tech products can promote both consumer and producer welfare, necessitating a level of coordination not typically associated with atomistic, competitive markets. The necessity of interoperability has been addressed privately by industry-wide standard-setting and coordination of competitors around these standards. Likewise, the competitive risks of that coordination are ...


Delay And Its Benefits For Judicial Rulemaking Under Scientific Uncertainty, Rebecca Haw Allensworth Jan 2014

Delay And Its Benefits For Judicial Rulemaking Under Scientific Uncertainty, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

The Supreme Court’s increasing use of science and social science in its decision-making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay — defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or ...


Dude, Where's My Car Title?: The Law, Behavior, And Economics Of Title Lending Markets, Paige Marta Skiba, Kathryn Fritzdixon, Jim Hawkins Jan 2014

Dude, Where's My Car Title?: The Law, Behavior, And Economics Of Title Lending Markets, Paige Marta Skiba, Kathryn Fritzdixon, Jim Hawkins

Vanderbilt Law School Faculty Publications

Millions of credit-constrained borrowers turn to title loans to meet their liquidity needs. Legislatures and regulators have debated how to best regulate these transactions, but surprisingly, we still know very little about the customers who use title loans. This Article reports findings from the first large-scale academic study of title lending customers. We surveyed over 400 title lending customers across three states and obtained information about customers’ demographic and behavioral characteristics.

Based on the results of our survey and guided by insights from behavioral economics, this Article seeks to reframe the title lending debate. Instead of focusing on the risks ...


Creating Around Copyright, Joseph P. Fishman Jan 2014

Creating Around Copyright, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

It is generally understood that the copyright system constrains downstream creators by limiting their ability to use protected works in follow-on expression. Those who view the promotion of creativity as copyright’s mission usually consider this constraint to be a necessary evil at best and an unnecessary one at worst. This conventional wisdom rests on the seemingly intuitive premise that more creative choice will deliver more creativity. Yet that premise is belied by both the history of the arts and contemporary psychological research on the creative process. In fact, creativity flourishes best not under complete freedom, but rather under a ...