Law Commons^™

When Equitable Is Not Equal: Experimental Evidence On The Division Of Marital Assets In Divorce, Jennifer B. Shinall, Joni Hersch

Vanderbilt Law School Faculty Publications

Upon divorce, marital assets in most U.S. states are divided equitably, often with the underlying legal purpose of equalizing outcomes. To examine whether decisionmakers value economic considerations, such as opportunity cost, specialization, and bargaining power, we conducted a vignette study in which we asked subjects to divide marital assets equitably between an employed husband and a wife without labor market income in a wealthy household. Subjects award less than 50 percent of assets to the wife, regardless of her education or the level of marital assets. Men award lower shares but, unlike women, award a larger share to a more …

The Due Process And Other Constitutional Rights Of Foreign States, Ingrid W. Brunk

Vanderbilt Law School Faculty Publications

The rights offoreign states under the US. Constitution are becoming more important as the actions offoreign states andforeign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation ofpowers nor by due process. As a matter ofpolicy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional wisdom and lower court cases …

Has The "M" Word Been Framed? Marijuana, Cannabis And Public Opinion, Robert A. Mikos, Cindy D. Kam

Vanderbilt Law School Faculty Publications

Over the past two decades, a growing cadre of US states has legalized the drug commonly known as “marijuana.” But even as more states legalize the drug, proponents of reform have begun to shun the term “marijuana” in favor of the term “cannabis.” Arguing that the “M” word has been tainted and may thus dampen public support for legalization, policy advocates have championed “cannabis” as an alternative and more neutral name for the drug. Importantly, however, no one has tested whether calling the drug “cannabis” as opposed to “marijuana” actually has any effect on public opinion. Using an original survey …

The Supreme Court And Refugees At The Southern Border: 5 Questions Answered, Karla Mckanders

Vanderbilt Law School Faculty Publications

I sat in a small room in Tijuana, Mexico with a 13-year-old indigenous Mayan Guatemalan girl.

She left Guatemala after a cartel murdered her friend and threatened to rape her. Her mother wanted her to live and believed the only way for her to survive was to send her daughter alone to the U.S., to apply for asylum Now she was alone and stuck in Mexico. Every morning, the Guatemalan girl, along with other asylum seekers, would frantically gather at the Tijuana-U.S. border where they waited to hear their name or their number called so the Mexican government could escort …

Pregnant People?, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do — such as purchasing a car seat, finding a pediatrician, or choosing a daycare — as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their …

The Choice Between Single Director Agencies And Multimember Commissions, Ganesh Sitaraman, Ariel Dobkin

Vanderbilt Law School Faculty Publications

The question ofhow best to design a new agency is of immense public importance. Congress creates new agencies and reforms agency structures with some regularity, while commentators frequently callfor the creation of new or redesigned agencies. Scholars have, as a result, increasingly turned to studying the diversity of agency structures and questions of agency design.

In this Essay, we tackle one of the decisions that must be made in designing any new agency--the choice between a single-director agency and a multimember commission-and we make a general case against multimember commissions. For the most part, scholarly discussion of these structures is …

Salary History And Pay Parity, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

Inquiries about a prospective applicant's salary history are controversial because of the role such inequities play in the broader gender pay equity debate. The use of prior salary to determine compensation can perpetuate pay discrimination for women, especially women of color, and lock them into cycles of underpayment when these inequities are carried over from job to job. Reliance on salary history perpetuates historical discrimination and is antithetical to the language and purpose of Title VII and the Equal Pay Act. The purpose of this paper is to critically analyze the legal reasoning relied upon to interpret these laws, especially …

The Diversity Imperative Revisited: Racial And Gender Inclusion In Clinical Law Faculty, G. S. Hans, D. N. Archer, Et Al.

Vanderbilt Law School Faculty Publications

The demographics of clinical law faculties matter. As Professor Jon Dubin persuasively argued nearly twenty years ago in his article Faculty Diversity as a Clinical Legal Education Imperative, clinical faculty of color entering the legal academy in the 1980s and 1990s expanded the communities served by law school clinics and the lawyering methods used to serve clients in significant ways that enriched legal education and the profession. They also broadened clinical scholarship to include deconstructions and reconstructions of clinical teaching, offered crucial role modeling and mentorship to students of color, and helped to elevate cross-cultural communication and multiracial collaboration as …

Guarantor Of Last Resort: Is There A Better Alternative?, Morgan Ricks

Vanderbilt Law School Faculty Publications

What should the government’s financial-crisis-response toolkit consist of? How should we think about its optimal scope and design? In Kate Judge offers a novel perspective on these questions. At a high level she agrees with Summers, Bernanke, Paulson, and Geithner that the existing toolkit is inadequate. In this respect she joins a number of other legal scholars and commentators. . .

The day after Lehman’s bankruptcy, Ken Rogoff—among the world’s leading experts on financial crises—wrote an op-ed titled “No More Creampuffs.” He applauded regulators for letting Lehman fail and “forc[ing] some discipline onto the system.” (To be fair, Rogoff acknowledged …

The Law Of Genetic Privacy: Applications, Implications, And Limitations, Ellen Wright Clayton, Barbara J. Evans, James W. Hazel, Mark A. Rothstein

Vanderbilt Law School Faculty Publications

Recent advances in technology have significantly improved the accuracy of genetic testing and analysis, and substantially reduced its cost, resulting in a dramatic increase in the amount of genetic information generated, analysed, shared, and stored by diverse individuals and entities. Given the diversity of actors and their interests, coupled with the wide variety of ways genetic data are held, it has been difficult to develop broadly applicable legal principles for genetic privacy. This article examines the current landscape of genetic privacy to identify the roles that the law does or should play, with a focus on federal statutes and regulations, …

Standing For Nothing, Robert Mikos

Vanderbilt Law School Faculty Publications

A growing number of courts and commentators have suggested that states have Article III standing to protect state law. Proponents of such "protective" standing argue that states must be given access to federal court whenever their laws are threatened. Absent such access, they claim, many state laws might prove toothless, thereby undermining the value of the states in our federal system. Furthermore, proponents insist that this form of special solicitude is very limited-that it opens the doors to the federal courthouses a crack but does not swing them wide open. This Essay, however, contests both of these claims, and thus, …

Weathering The Storm: Utilizing Congressional Investigations To Improve National Hurricane Preparedness, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

During the 2017 hurricane season, three major storms impacted differ- ent regions of the United States. These storms-Hurricanes Harvey, Irma, and Maria-devastated communities in Texas, Florida, and Puerto Rico within the span of a month. These storms were so destructive that the World Meteorological Organization has retired all three storm names, meaning no future hurricane will ever bear the names Harvey, Irma, or Maria again. In response, according to the Government Accountability Office ("GAO"), "19 federal agencies had entered into contracts and obligated over $5.6 billion on those contracts to support efforts related to Hurricanes Harvey, Irma, and Maria" as …

States As Civil Rights Actors, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

A British politician, David Miliband, once said, "My advice is very simple: if you can win a small battle, it gives you confidence in the political process to take on bigger battles, and so it is very much a bottom-up grass-roots way of doing politics." While his perspective--of starting small and building up--is an often-used strategy used by advocates of all stripes, his quote does not give sufficient credence to the intrinsic value of these small battles. These efforts are an end unto themselves, as the smaller battles within each state are not just training to take on larger federal …

Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson

Vanderbilt Law School Faculty Publications

Our legal system - and much of the research conducted on that system - often separates people and issues into civil and criminal silos. However, those two worlds intersect and influence one another in important ways. The qualitative empirical study that forms the basis of this Article bridges the civil-criminal divide by exploring the life circumstances and events of public defender clients to determine how they experience and respond to civil legal problems.

To date, studies addressing civil legal needs more generally have not focused on those individuals enmeshed with the criminal justice system, even though that group offers a …

Immigration To Blue Cities In Red States: The Battleground Between Sanctuary And Exclusion, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This commentary interrogates the concept of immigration federalism, examining the political and ideological contours of state and local sanctuary laws in the context of both state and the Trump Administration's exclusionary policies. I utilize the intrastate federalism conflicts within the State of Tennessee to highlight the political dynamics that govern the passing of state and local sanctuary laws analyzing new issues that have surfaced under the Trump Administration. In this context, the commentary argues that recent immigration federalism standoffs center around political divisions which fail to engage in principled evaluations of which level of governmentfederal, state, or local--should be the …

The Patent Option, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

There is a shift in the shape of intellectual property (IP) tools used to strengthen and lengthen the right of pharmaceutical companies to exclude others from making and marketing their products. Patents have traditionally been the tool of choice. Over the past two decades, however, pharmaceutical companies have increased their degree of reliance on a right known as “data exclusivity.” This right, which now exists in most major jurisdictions, is the right to prevent third parties from relying on the clinical trial data submitted by another pharmaceutical company to obtain marketing approval for a bioequivalent or biosimilar product. The right …

Will Tenure Voting Give Corporate Managers Lifetime Tenure?, Paul H. Edelman, Randall S. Thomas, Wei Jiang

Vanderbilt Law School Faculty Publications

Dual-class voting systems have been widely employed in recent initial public offerings by large tech companies, but have been roundly condemned by institutional investors and the S&P 500. As an alternative, commentators have proposed adoption of tenure voting systems, where investor voting rights increase with the length of time that they hold shares. In furtherance of this proposal, some Silicon Valley investors have requested that the SEC permit the creation of a new stock exchange where all of the companies will be required to use tenure voting systems.

Is tenure voting a better choice than dual-class stock for both corporate …

"Sorry" Is Never Enough: How State Apology Laws Fail To Reduce Medical Malpractice Liability Risk, W. Kip Viscusi, Benjamin J. Mcmichael, R. Lawrence Van Horn

Vanderbilt Law School Faculty Publications

Based on case studies indicating that apologies from physicians to patients can promote healing, understanding, and dispute resolution, 38 states have sought to reduce litigation and medical malpractice liability by enacting apology laws. Apology laws facilitate apologies by making them inadmissible in subsequent malpractice trials.

The underlying assumption regarding the potential efficacy of these laws is that, after receiving an apology, patients will be less likely to pursue a malpractice claim and will be more likely to settle those claims that are filed. However, once a patient has been made aware that the physician has committed a medical error, the …

Countering Nationalist Oligarchy, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

The challenge we face today is not one of authoritarianism, as so many seem inclined to believe, but of nationalist oligarchy. This form of government feeds populism to the people, delivers special privileges to the rich and well-connected, and rigs politics to sustain its regime.

Nationalist oligarchy is an existential threat to American democracy. The countries already under its thrall steal technology and use economic power as political leverage. Some of them are actively trying to undermine democracy, through cyber attacks, hacking, and social media disinformation. And they spread bribery and corruption around the world—deepening inequality and threatening to turn …

Patenting The Unexplained, Sean B. Seymore

Vanderbilt Law School Faculty Publications

It is a bedrock principle of patent law that an inventor need not understand how or why an invention works. The patent statute simply requires that the inventor explain how to make and use the invention. But explaining how to make and use something without understanding how or why it works yields patents with uninformative disclosures. Their teaching function is limited; one who wants to understand or figure out the underlying scientific principles must turn elsewhere. This limited disclosure rule does not align with the norms of science and tends to make patent documents a less robust form of technical …

Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Investor-state dispute-settlement (ISDS) clauses give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitration tribunal. This jurisgenerative right to file a claim in an international tribunal with mandatory jurisdiction is generally reserved to States. ISDS is a mechanism meant to protect the private property of multinational investors against certain acts of public authorities.

Intellectual Property differs from the more traditional private (property) law interests that ISDS aims to protect. IP incorporates public policy objectives such as innovation, access to information or public health that are reflected in limitations and exceptions to the …

Similar Secrets, Joseph P. Fishman, Deepa Varadarajan

Vanderbilt Law School Faculty Publications

A foundational question in every dispute over intellectual property is whether the defendant’s product is too similar to the plaintiff ’s. For almost all intellectual property regimes, an extensive body of case law and academic commentary has examined how such similarity should be measured. Trade secrecy, however, remains a remarkable exception. In trade secrecy cases, just as in other intellectual property cases, the defendant’s good or method can diverge markedly from what the plaintiff developed. Yet it turns out that trade secret case law provides little guidance for assessing how much similarity is too much. The standard remains, fittingly but …

Engaging Policy In Science Writing: Patterns And Strategies, J. B. Ruhl, Stephen M. Posner, Taylor H. Ricketts

Vanderbilt Law School Faculty Publications

Many scientific researchers aspire to engage policy in their writing, but translating scientific research and findings into policy discussion often requires an understanding of the institutional complexities of legal and policy processes and actors. To examine how researchers have undertaken that challenge, we developed a set of metrics and applied them to articles published in one of the principal academic publication venues for science and policy—Science magazine’s Policy Forum. We reviewed each Policy Forum article published over a five-year period (2011–15), 220 in all. For each article, we assessed the level of policy content based on presence of a stated …

Settling In The Shadow Of Sex: Gender Bias In Marital Asset Division, Jennifer Bennett Shinall

Vanderbilt Law School Faculty Publications

Divorce has a long history of economically disempowering women. From the time of coverture to the era of modern divorce reform, women have been persistently disadvantaged by divorce relative to men. Family law scholars have long attributed this disadvantage to the continued prevalence of traditional gender roles and the failure of current marital asset division laws to account adequately for this prevalence. In spite of the progress made by the women's movement over the past half-century, married, heterosexual women endure as the primary caretaker in the majority of households, and married, heterosexual men endure as the primary breadwinners. Undoubtedly, women …

Sharkfests And Databases: Crowdsourcing Plea Bargains, Nancy J. King, Kay L. Levine, Ronald F. Wright, Marc L. Miller

Vanderbilt Law School Faculty Publications

The stock image of a plea negotiation in a criminal case depicts two lawyers in frayed business suits, meeting one-on-one in a dim corner of a courtroom lobby. The defendant is somewhere nearby, ready to receive information about the prosecutor’s offer and to discuss counteroffers with his attorney and perhaps with his family. The victim or arresting officer may be available by phone, although neither has the power to veto a deal the prosecutor otherwise thinks is reasonable. In this depiction of plea bargaining, the defense attorney and the defendant form one unit, allied against another unit—comprised of the prosecutor, …

Why Are Seemingly Satisfied Female Lawyers Running For The Exits? Resolving The Paradox Using National Data, Joni Hersch, Erin E. Meyers

Vanderbilt Law School Faculty Publications

Despite the fact that women are leaving the practice of law at alarmingly high rates, most previous research finds no evidence of gender differences in job satisfaction among lawyers. This Article uses nationally representative data from the 2015 National Survey of College Graduates to examine gender differences in lawyers’ job satisfaction, and finds that any apparent similarity of job satisfaction between genders likely arises from dissatisfied female JDs sorting out of the legal profession at higher rates than their male counterparts, leaving behind the most satisfied women. This Article also provides a detailed examination of the specific working conditions that …

Beyond The Witness: Bringing A Process Perspective, Edward K. Cheng, G. Alexander Nunn

Vanderbilt Law School Faculty Publications

For centuries, the foundation of the Anglo-American trial has been the witness.' Witnesses report on their personal observations, provide opinions of character, offer scientific explanations, and in the case of parties, narrate their own story. Indeed, even for documentary and other physical evidence, witnesses often provide the conduit through which such evidence reaches the factfinder. Documentary or physical evidence rarely stands on its own. The law of evidence has thus unsurprisingly focused on-or perhaps obsessed over-witnesses. The hearsay rule and the Confrontation Clause demand that declarants be available witnesses at trial so that they may be subject to cross-examination.' Expert …

How The First Forty Years Of Circuit Precedent Got Title Vii's Sex Discrimination Provision Wrong, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title …

Mootness Fees, Randall S. Thomas, Matthew D. Cain, Jill E. Fisch, Steven D. Solomon

Vanderbilt Law School Faculty Publications

In response to a sharp increase in litigation challenging mergers, the Delaware Chancery Court issued the 2016 Trulia decision, which substantively reduced the attractiveness of Delaware as a forum for these suits. In this Article, we empirically assess the response of plaintiffs'attorneys to these developments. Specifically, we document a troubling trend-the flight of merger litigation to federal court where these cases are overwhelmingly resolved through voluntary dismissals that provide no benefit to the plaintiff class but generate a payment to plaintiffs'counsel in the form of a mootness fee. In 2018, for example, 77% of deals with litigation were challenged in …

How To Save The Supreme Court, Ganesh Sitaraman, Daniel Epps

Vanderbilt Law School Faculty Publications

The consequences of Justice Brett Kavanaugh’s Supreme Court confirmation are seismic. Justice Kavanaugh, replacing Justice Anthony Kennedy, completes a new conservative majority and represents a stunning Republican victory after decades of increasingly partisan battles over control of the Court. The result is a Supreme Court whose Justices are likely to vote along party lines more consistently than ever before in American history. That development gravely threatens the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court’s ability to render impartial justice, the Court’s power to settle important questions of law will be in …