Law Commons^™

Special Project: Current Issues In Immigration, Anna Byrne

Vanderbilt Law Review

These words, so famously engraved upon a plaque inside the Statue of Liberty, have become an anachronism in modern American politics. In recent years our society has witnessed a maelstrom arise concerning immigration law and enforcement, with vocal factions spouting angry vitriol about the need to tighten borders and crack down on illegal immigration. Intense debate was sparked 2006 after the House of Representatives passed a restrictive bill that called for a wall to be built along 700 miles of the U.S.-Mexican border, criminalized the aiding or encouraging of illegal immigrants to remain in the country, and imposed new penalties …

The Origins Of Shared Intuitions Of Justice, Owen D. Jones, Paul H. Robinson, Robert Kurzban

Vanderbilt Law Review

The role of justice in assigning criminal liability and punishment has been a matter of long-standing debate. A standard argument against a desert distributive principle-that is, against distributing punishment according to an offender's blameworthiness- has been that such a concept of "desert" is simply too vague and the subject of too much disagreement to operationalize. There may be some truth to these complaints when applied to a philosophical notion of desert, which has been the traditional basis of the desert school.

But more recently, a utilitarian-based theory of desert has urged reliance on an empirical notion of desert, drawn from …

What Is Extreme Cruelty? Judicial Review Of Deportation Cancellation Decisions For Victims Of Domestic Abuse, Anna Byrne

Vanderbilt Law Review

In the 1990s, Congress began to devote increased attention to the problem of domestic violence, a rampant national problem with social and economic costs. At the same time, concerns about immigrants draining the social welfare service system and taking jobs away from U.S. citizens gave rise to an interest in more stringently monitoring and eradicating the illegal alien population in the United States. As part of the 1994 Violence Against Women Act ("VAWA"), Congress passed the battered spouse provision, attempting to reconcile its desires to address domestic violence and tighten immigration laws. Illegal immigrants are subject to removal procedures. However, …

Barring Too Much: An Argument In Favor Of Interpreting The Immigration And Nationality Act Section 101(A)(42) To Include A Duress Exception, Nicole Lerescu

Vanderbilt Law Review

The asylum system is in disarray. The United States is unable to guarantee that every asylum seeker will receive a fair and impartial hearing. Although media attention recently has focused on the asylum system's procedural flaws, unjust statutory interpretations also work against those seeking refuge in the United States. This Note focuses on one particular example within this commonly criticized area of the law: the prevailing interpretation of section 101(a)(42) of the Immigration and Nationality Act to bar those who have persecuted others under duress from attaining refugee status.

It is intuitively appealing that a system of laws should hold …

Do Citizens Care About Federalism? An Experimental Test, Robert Mikos, Cindy D. Kam

Vanderbilt Law School Faculty Publications

The ongoing debate over the political safeguards of federalism has essentially ignored the role that citizens might play in restraining federal power. Scholars have assumed that citizens care only about policy outcomes and will invariably support congressional legislation that satisfies their substantive policy preferences, no matter the cost to state powers. Scholars thus typically turn to institutions-the courts or institutional features of the political process-to cabin congressional authority. We argue that ignoring citizens is a mistake. We propose a new theory of the political safeguards of federalism in which citizens help to safeguard state authority. We also test our theory …

Judging Plaintiffs, Jason M. Solomon

Vanderbilt Law Review

With its powerful account of the normative principles embodied in the structure and practice of the law of torts, corrective justice is considered the leading moral theory of tort law. It has a significant advantage over instrumental and other moral theories in that it is more consistent with what judges say when they analyze tort law concepts. And with criticism of instrumental accounts, like law and economics, on a number of fronts, it is the leading descriptive theory of tort law.

In this Article, I take up a question that has never been answered adequately by corrective-justice or other moral …

Expedited Injustice: The Problems Regarding The Current Law Of Expedited Removal Of Aggravated Felons, Andrew D. Kennedy

Vanderbilt Law Review

Following the attacks of September 11, 2001, he and his family, like many Americans of the Islamic faith, felt persecuted by their neighbors, despite having had nothing to do with the terrorist attacks on the World Trade Center and the Pentagon.' Mr. Rashid felt intimidated by people following him and calling his home to accuse him of complicity in the September 11 attacks. After weeks of harassment, Mr. Rashid's family contacted the police. Unfortunately for Mr. Rashid, however, he shared a name with a suspected terrorist. Thus, instead of addressing Rashid's concerns, the U.S. government began to suspect him as …

Rodrigo's Corrido: Race, Postcolonial Theory, And U.S. Civil Rights, Richard Delgado

Vanderbilt Law Review

Richard Delgado enlists his alter ego, Rodrigo, to analyze Latino legal history and civil rights. Encountering "the Professor" after testifying at a hearing on an immigration bill, Rodrigo excitedly tells his old friend and mentor about a new body of writing he has come across. Postcolonial theory, which deals with issues such as cultural survival, resistance, and collaboration, can help move American civil rights scholarship beyond its current impasse. Over dinner, Rodrigo demonstrates how insights from these writers can enrich U.S. civil rights theory and practice. He also posits a new theory of Latinos' sociolegal construction, based on a triple …

The Digital Titanic: The Sinking Of Youtube.Com In The Dmca's Safe Harbor, Trevor Cloak

Vanderbilt Law Review

In today's technologically advanced world, video-sharing Internet sites ("VSIs"), such as Grouper.com, Bolt.com, and YouTube.com, provide free, unfettered access to clips of your favorite television shows and artistic performances, from Animaniacs to ZZ Top. With movie clips viewed over 100 million times each day, YouTube is the behemoth of these sites5-a major accomplishment considering the site entered the video-sharing market in May 2005. Two friends, Steve S. Chen and Chad Hurly, created YouTube after they experienced difficulty posting a video online. Taking advantage of online blogging's popularity, the two distinguished their site by coupling quick and easy video posting with …

The Ties That Bind? Regionalism, Commercial Treaties, And The Future Of Global Economic Integration, Chris Brummer

Vanderbilt Law Review

A revolutionary shift in international cooperation is underway. Many governments, frustrated with dissension hampering multilateral trade reform at the World Trade Organization ("WTO"), are now turning to bilateral and regional treaties to forward their commercial interests.1 Under these agreements, which rocketed from fewer than 390 in 1989 to more than 2,400 today,2 states have relinquished key aspects of their economic sovereignty to participate in two-party pacts and regional trade clubs like the North American Free Trade Agreement ("NAFTA") and the European Union ("EU"). As a result of such cooperation, most countries no longer may levy tariffs easily, subsidize their domestic …

Overcoming Another Tragedy In New Orleans: Rebuilding In The Wake Of "Kelo" And Act No. 851, William C. Spaht

Vanderbilt Law Review

During Hurricanes Katrina and Rita, thousands of Gulf Coast residents lost their homes, their possessions, their savings, and some, their lives. Those states hit hardest by the hurricanes have struggled to recover. In places like New Orleans, where hundreds of thousands of residents evacuated and may never return, uncertainty regarding the future of private property has become a fact of life. As the excerpt from Senator McPherson's letter indicates, arguably the single most critical question facing local and state governments trying to rebuild the devastated coast is how to encourage use of abandoned properties to spark the economy.

Michael A. …

A Prescription To Retire The Rhetoric Of "Principles-Based Systems" In Corporate Law, Securities Regulation, And Accounting, Lawrence A. Cunningham

Vanderbilt Law Review

This Article corrects widespread misconception about whether complex regulatory systems can be described fairly as either "rules-based" or "principles-based" (also called "standards-based'). Promiscuous use of these labels has proliferated in the years since the implosion of Enron Corp. Users show an increasing habit of celebrating systems dubbed principles-based and scorning those called rules-based. While the concepts of rules and principles (or standards) are useful to classify individual provisions, they are not scalable to the level of complex regulatory systems. The Article uses examples from corporate law, securities regulation, and accounting to illustrate this problematic phenomenon. To describe or design systems …

Ruling Out The Rule Of Law, Kim Forde-Mazrui

Vanderbilt Law Review

Although criminal justice scholars continue to debate the overall value of the void-for-vagueness doctrine, broad consensus prevails that requiring crimes to be defined in specific terms reduces law enforcement discretion. A few scholars have questioned this assumption, but the conventional view remains dominant. This Article intends to resolve the question whether the void-for-vagueness doctrine really reduces police discretion. It focuses on traffic enforcement, a context in which laws are both specific and subject to discretionary enforcement. The Article concludes that specific rules do not constrain discretion unless judicial limits are placed either on the scope of activities that may be …

Allocating Responsibility For The Failure Of Global Warming Policies, W. Kip Viscusi, Joni Hersch

Vanderbilt Law School Faculty Publications

A recent series of climate change lawsuits has sought to mimic the "regulation through litigation" approach of the claims brought by the states against cigarette manufacturers. What is distinctive about the cigarette cases relative to conventional tort claims is that they were not brought on behalf of individual smokers, but rather sought to recoup the Medicaid-related costs of smoking. A parallel climate change litigation approach seeks payments from public utilities, energy producers, and other parties responsible for greenhouse gas emissions to reflect the long-term societal damages that the plaintiffs claim will be caused by this pollution. While environmental litigation of …

An Empirical Assessment Of Early Offer Reform For Medical Malpractice, W. Kip Viscusi, Wesley A. Magat, Joel Huber

Vanderbilt Law School Faculty Publications

The early offer reform proposal for medical malpractice provides an option for claimants to receive prompt payment of all their net economic losses and reasonable attorney fees. Using a large sample of closed individual medical malpractice claims from Texas supplemented by data from Florida, this article provides an empirical assessment of the consequences of the early offer reform. Noneconomic damages make up about two-thirds of paid claim amounts. The minimum payment amount for serious injuries will affect the magnitude of insurer savings and claimant compensation. Payments to claimants will be expedited by 2 years by the early offer reform, and …

The Cautionary Tale Of The Failed 2002 Ftc/Doj Merger Clearance Accord, Lauren K. Peay

Vanderbilt Law Review

Antitrust law in the United States is the patchwork result of over two hundred years of evolving and often conflicting views of the government's proper role in regulating business. Depending upon the social and business climate of the era and the economic philosophies of Congress, the President, and the judiciary, federal antitrust jurisdiction has waxed and waned. The result is the current system wherein the Department of Justice Antitrust Division ("Antitrust Division") and the Federal Trade Commission ("FTC") share dual jurisdiction to enforce the federal antitrust laws. However, in the push and pull of the changing eras, the intersection of …

Red, White, But Mostly Blue: The Validity Of Modern Sunday Closing Laws Under The Establishment Clause, Lesley Lawrence-Hammer

Vanderbilt Law Review

On a Sunday morning, the average American might hope to enjoy any number of activities: attending a church service, drinking a mimosa with brunch, shopping for clothes at the mall, looking for a new car, or hunting with friends. However, in a surprisingly large number of states, only one of these activities would be legal: going to church.

Such is the result of blue laws,' the colloquial term for state statutes that regulate or prohibit entertainment and commercial activities on Sundays or religious holidays. Originating in England, blue laws were enacted throughout colonial America in an effort to protect the …

The Admission Of Legacy Blacks, Angela Onwuachi-Willig

Vanderbilt Law Review

Three years ago, the New York Times reported the results of a study that revealed that two-thirds of the black population at Harvard College consisted of first-generation black immigrant students in the United States, second-generation black American students, and mixed-race students with one black parent. Additional studies have confirmed that the same phenomenon exists at other elite institutions, which include schools such as Columbia, Duke, Georgetown, Northwestern, Oberlin, the University of California- Berkeley, the University of Michigan, the University of North Carolina-Chapel Hill, the University of Pennsylvania, Smith, Stanford, and Yale.

For many of those interested in how affirmative action …

Judicial Deference And The Credibility Of Agency Commitments, Jonathan Masur

Vanderbilt Law Review

Consider the following situation: In late 2004, towards the end of President George W. Bush's first term, the National Highway Transportation Safety Administration ("NHTSA"), pursuant to its congressionally delegated authority, promulgates a rule that would relax inspection and testing regimes for automobile manufacturers- thereby saving those firms substantial amounts of money-if the manufacturers independently deployed cutting-edge vehicle safety technology. The research and development of this technology will require significant up-front expenditures, and automobile manufacturers must decide whether to invest the funds necessary to bring the technology to market. However, the cost-benefit analysis is not so straightforward. The predicament, as the …

The Political Safeguards Of Executive Privilege, David A. O'Neil

Vanderbilt Law Review

To an unprecedented degree, the nation's welfare now depends on constitutionally sound outcomes to disputes between Congress and the President over executive branch information. Yet we still lack a satisfying theoretical account of the optimal method for achieving those outcomes. In the years since Watergate, courts and scholars have embraced a theory premised on an unexamined faith that the Constitution's structure embeds in the political process the tools and incentives necessary for each branch to vindicate its interests. Judicial interference, this conventional model further assumes, is both unnecessary and unwise; left to their own devices, the political branches will pursue …

The Duty To Creditors In Near-Insolvent Firms: Eliminating The "Near-Insolvency" Distinction, Cory D. Kandestin

Vanderbilt Law Review

'Even at our best, we are only out for ourselves." It is human nature to act in one's own interest. Though ethicists and psychologists may disagree about the extent to which self-interest is a motivating factor behind human behavior, most accept that it plays some role. Assuming that human behavior is at least in part a function of self-interest, laws should be expected to reflect that behavior. Many already do: the law of agency imposes a duty on the agent to act with obedience towards his principal, and the ABA Model Rules of Professional Conduct prohibit a lawyer from representing …

Help At Your Fingertips: A Twenty-First Century Response To The Pro Se Phenomenon, Van Wormer, Nina Ingwer

Vanderbilt Law Review

In July 2001, Aventis Pharmaceuticals, Inc. fired Susan Hudock, an award-winning sales representative suffering from shingles. Angered and frustrated, Ms. Hudock retained an attorney and filed suit against her former employer, alleging that the company violated the Americans with Disabilities Act by failing to make "reasonable accommodations" that would enable her to perform certain job-related functions. After incurring over $18,000 in legal fees over two years and with no end in sight, Ms. Hudock decided to take a drastic step: she fired her attorney and proceeded with her case pro se.

Despite being warned by her former attorney that she …

Refining The Meaning And Application Of "Dating Relationship" Language In Domestic Violence Statutes, Devon M. Largio

Vanderbilt Law Review

Many young people date in high school, and Lisa Santoro was no exception.' Her father Tom tells her story:

In January, 1994, Lisa started to date a guy [named "Dan"].... In the five months Lisa dated this guy, I never really understood why she was attracted to him.... Around June, when Lisa started to work at the swimming pool, she met another guy who was in charge of the pool .... Shortly after, Lisa [broke] up with Dan. Dan tried to get Lisa to go back to him, but Lisa had her mind made up.... On July 27th, Dan called …

On The Effective Communication Of The Results Of Empirical Studies, Part Ii, Lee Epstein

Vanderbilt Law Review

While law professors are increasingly making use of data in their scholarship and while the data work housed in their studies is (generally) of a high quality, they have been less effective at communicating the products of their labor. A strong devotion to tabular, rather than graphical, displays, and claims about "statistical significance" rather than substantive importance, are just two areas requiring improvement.

Here, as in Part I, we attempt to adapt a burgeoning literature in the social and statistical sciences to the unique interests of legal scholars. Our proposals are many in number, but none is particularly difficult to …

A Structural Approach As Antidiscrimination Mandate: Locating Employer Wrong, Tristin K. Green

Vanderbilt Law Review

A structural approach to employment discrimination law seeks to impose an obligation on employers not to facilitate discriminatory decisionmaking in the workplace. Scholars across disciplines agree that a structural approach is a crucial element of an effective antidiscrimination law. Existing law fails to account for the ways in which bias manifests subtly in day-to-day workplace decisionmaking, or for the influence of organizational context on that decisionmaking. But the future of a structural approach depends, in part, on its normative foundation. Without sufficient normative underpinning, a structural approach is unlikely to gain traction in the public or in the courts.

In …

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

Vanderbilt Law Review

Over the past quarter century, the concept of "adaptive preferences" has played an important role in debates in law, economics, and political philosophy. As Professor Jon Elster has described this psychological phenomenon, "people tend to adjust their aspirations to their possibilities." A number of prominent scholars have argued that the existence of adaptive preferences "raises serious problems for neoclassical economics and for unambivalent enthusiasm for freedom of choice." Because our current preferences are constrained by the opportunities available to us, proponents of adaptive preference theory contend, those preferences may not be the best guide to what is in our interests; …

Containing Online Copyright Infringement: Use Of The Digital Millennium Copyright Act's Foreign Site Provision To Block U.S. Access To Infringing Foreign Websites, Todd R. Hambidge

Vanderbilt Law Review

On June 27, 2005, the Supreme Court decided Metro-Goldwyn- Mayer Studios, Inc. v. Grokster, Ltd. and dealt another blow to online copyright infringement. From the early days of electronic bulletin boards to today's world of decentralized peer-to-peer services, the Internet has been used to infringe copyrights. As infringement has increased, copyright holders have successfully fought to protect their works through the courts, seeking judgments against not only the primary infringers (the individuals who have illegally downloaded these works), but also the service providers who make these works available. Judgments extending secondary liability to these Internet services have protected copyrights and …

The Geologic Strata Of The Law School Curriculum, Robert W. Gordon

Vanderbilt Law Review

The modest aim of this piece is to supply some historical background to the other contributions to this Symposium. The modern American law school curriculum is the product of a few but critical choices of design, some of them over a century old. In this Article, I seek to (1) outline how the basic structure and content of the modern American law school curriculum came into being and what were the main competitors that curriculum displaced; (2) describe some of the ways in which the curriculum's basic structure and content have changed since its inception; and (3) point to some …

Psychological Theories Of Educational Engagement: A Multi-Method Approach To Studying Individual Engagement And Institutional Change, Bonita London, Geraldine Downey, Shauna Mace

Vanderbilt Law Review

As teachers, administrators, scholars, and practitioners, one critical issue we face in the academic world is how to foster the academic success and psychological well-being of future generations of teachers, scholars, and practitioners. In some cases, even the most well-prepared and academically motivated students enter law school with the drive and ability to succeed, but along the way, may encounter difficulties that interfere with their potential success in law school and beyond. What are the barriers to engagement, academic success and psychological well-being that impede some students? How might we understand the process of engagement and investment in legal education, …

What's Wrong With Langdell's Method, And What To Do About It, Edward Rubin

Vanderbilt Law Review

Here we are, at the beginning of the twenty-first century, using a model of legal education that was developed in the latter part of the nineteenth. Since that time, the nature of legal practice has changed, the concept of law has changed, the nature of academic inquiry has changed, and the theory of education has changed. Professional training programs in other fields have been redesigned many times to reflect current practice, theory, and pedagogy, but we legal educators are still doing the same basic thing we were doing one hundred and thirty years ago. Many law professors are conscientious and …