Law Commons^™

Exponential Growth Bias And The Law: Why Do We Save Too Little, Borrow Too Much, And Fail To React On Time To Deadly Pandemics And Climate Change?, Doron Teichman, Professor Of Law, Eyal Zamir, Professor Of Commercial Law

Vanderbilt Law Review

Many human decisions, ranging from the taking of loans with compound interest to fighting deadly pandemics, involve phenomena that entail exponential growth. Yet a wide and robust body of empirical studies demonstrates that people systematically underestimate exponential growth.

This phenomenon, dubbed the exponential growth bias (“EGB”), has been documented in numerous contexts and across different populations, using both experimental and observational methods.

Despite its centrality to human decisionmaking, legal scholarship has thus far failed to account for the EGB. This Article presents the first comprehensive study of the EGB and the law. Incorporating the EGB into legal analysis sheds a …

Praxis And Paradox: Inside The Black Box Of Eviction Court, Lauren Sudeall, Daniel Pasciuti

Vanderbilt Law Review

In the American legal system, we typically conceive of legal disputes as governed by specific rules and procedures, resolved in a formalized court setting, with lawyers shepherding both parties through an adversarial process involving the introduction of evidence and burdens of proof. The often-highlighted exception to this understanding is the mass, assembly-line processing of cases, whether civil or criminal, in large, urban, lower-level courts. The gap left unfilled by either of these two narratives is how “court” functions for the average unrepresented litigant in smaller and nonurban jurisdictions across the United States.

For many tenants facing eviction, elements of the …

Governing Wicked Problems, Jb Ruhl, James Salzman

Vanderbilt Law Review

"Wicked problems." It just says it all. Persistent social problems-poverty, food insecurity, climate change, drug addiction, pollution, and the list goes on-seem aptly condemned as wicked. But what makes them wicked, and what are we to do about them?

The concept of wicked problems as something more than a generic description has its origins in the late 1960s. Professor Horst Rittel of the University of California, Berkeley, Architecture Department posed the term in a seminar to describe "that class of social system problems which are ill-formulated, where the information is confusing, where there are many clients and decision makers with …

Corporate Law And Social Risk, Stavros Gadinis, Amelia Miazad

Vanderbilt Law Review

Over a quarter of total assets under management are now invested in socially responsible companies. This turn to sustainability has gained solid ground over the last few years, earning the commitment of hundreds of CEOs and dominating the global business agenda. This marks an astounding repudiation of Wall Street’s get-rich-quick mentality, as well as a direct challenge to corporate law’s reigning mantra of profit maximization above all. But corporate law scholars are skeptical about the rise of sustainability. Some scoff at companies’ promises to “do the right thing” as empty rhetoric. But companies are revisiting core business practices and adjusting …

Social Checks And Balances: A Private Fairness Doctrine, Michael P. Vandenbergh

Vanderbilt Law Review

This Essay proposes a private standards and certification system to induce media firms to provide more complete and accurate information. It argues that this new private governance system is a viable response to the channelized flow of information that is exacerbating political polarization in the United States. Specifically, this Essay proposes development of a new private fairness doctrine to replace the standard repealed by the Federal Communications Commission in 1987. A broad-based, multi-stakeholder organization could develop and implement this private fairness doctrine, and the certification process could harness market and social pressure to influence the practices of traditional and new …

Artificial States And The Remapping Of The Middle East, Ash U. Bali

Vanderbilt Journal of Transnational Law

This Article critically examines arguments tracing contemporary crises in the Arab world to the making of the Arab state system a century ago. A series of popular and scholarly articles occasioned by the recent spate of World War I-related centenaries suggest that new boundaries be drawn in the Middle East to produce more stable nation-states. More specifically, a set of authors has advocated for different borders that would avoid ethno-sectarian conflict by designing relatively homogenous smaller states to replace multiethnic, multisectarian states like Iraq and Syria. Such proposals are significant for the underlying presumptions they reflect concerning the relationship between …

Identity Federalism In Europe And The United States, Vlad Perju

Vanderbilt Journal of Transnational Law

The turn to identity is reshaping federalism. Opposition to the policies of the Trump administration, from the travel ban to sanctuary cities and the rollback of environmental protections, has led progressives to explore more fluid and contingent forms of state identity. Conservatives, too, have sought to shift federalism away from the jurisdictional focus on limited and enumerated powers and have argued for a revival of the political safeguards of federalism, including state-based identities. This Article draws on comparative law to study identity as a political safeguard of federalism and its transformation from constitutional discourse to interpretative processes and, eventually, constitutional …

Judging Judicial Appointment Procedures, S. I. Strong

Vanderbilt Journal of Transnational Law

Over the last several years, judicial appointment procedures in the United States have become increasingly intractable. Members of both parties are seen to engage in political gamesmanship, calling the legitimacy of the appointment process into question and decreasing public confidence in both the legislature and the judiciary. Questions are even beginning to arise about whether and to what extent the United States is complying with the rule of law.

Although numerous solutions have been proposed, one alternative has not yet been considered: international law. As paradoxical as it may seem, the best and perhaps only feasible solution to quintessentially domestic …

Fortifying American Emergency Power: A Multinational Comparison To Contain Crises, Courtney Devore

Vanderbilt Journal of Transnational Law

Countries will inevitably face emergencies. Historically, governments have exercised immense power in response to emergencies. For responses to be quick and effective, emergency power operates outside of the normal rule of law. While disbanding the normal rule of law may be necessary from time to time to protect national security, the unilateral ability of government to take such action creates perverse incentives to abuse the power. Abuses of emergency power are found across the globe, most notably occurring in the United States recently.

In the wake of the Trump Administration, this Note seeks to identify how and why the US …

Improvising Intellectual Property In Saigon, David A. Bergan

Vanderbilt Journal of Entertainment & Technology Law

How does intellectual property become part of the structure of social practice? The traditional answers are enforcement, education, and incentivized self-interest. This Article challenges that understanding by examining the social field of young engineers in Vietnam. In Ho Chi Minh City, Vietnam, intellectual production is not only about producing the legal commodity we call intellectual property. For many young engineers working with multinational companies, it is not about producing a product at all. It is about improving their position in society. Relying on over a year of qualitative, ethnographic fieldwork from 2012 to 2014, this Article develops a critique of …

The Trouble With Corporate Conscience, James D. Nelson

Vanderbilt Law Review

Accomplished corporate law scholars claim that modern businesses need an infusion of morality. Disappointed by conventional regulatory responses to recurring corporate scandal, these scholars argue that corporate conscience provides a more fruitful path to systemic economic reform. In Burwell v. Hobby Lobby, which held that for-profit businesses can claim religious exemptions from general laws, the Supreme Court gave this notion of corporate conscience added momentum. Emboldened by the Court's embrace of business goals extending beyond shareholder profit, proponents of a moralized marketplace now celebrate corporate conscience as an idea whose time has come. This Essay criticizes the leading arguments for …

Substantial Guidance Without Substantive Guides: Resolving The Requirements Of Moore V. Texas And Hall V. Florida, Clinton M. Barker

Vanderbilt Law Review

Exempting certain classes of people from the possibility of the death penalty is hardly new; Blackstone noted the common law prohibition on executing the insane, stating that "furiosus furore solum punitur"-madness is its own punishment.' Even then, however, "the reasons for the rule [were] less sure and less uniform than the rule itself." 2 In the United States, Eighth Amendment jurisprudence does little to clarify the reasons behind a particular death penalty exemption because it relies, in part, on the practice of the states to decide what is outside the bounds of acceptable punishment. 3 Because exemptions are thus dependent …

Genome Editing And The Jurisprudence Of Scientific Empiricism, Paul Enriquez

Vanderbilt Journal of Entertainment & Technology Law

Humankind has reached, in tow by the hand of a scientific breakthrough called CRISPR, the Rubicon of precise genetic manipulation first envisioned over fifty years ago. Despite CRISPR's renown in science and its power to transform the world, it remains virtually unaddressed in legal scholarship. In the absence of on-point law, the scientific community has attempted to reach some consensus to preempt antagonistic regulation and prescribe subjective standards of use under the guise of a priori scientific empiricism. Significant and complex legal issues concerning this technology are emerging, and the void in legal scholarship is no longer tolerable.

This Article …

Normalizing "Erie", Suzanna Sherry

Vanderbilt Law Review

This Article argues that the Erie doctrine should be normalized by bringing it into line with ordinary doctrines of federalism. Under ordinary federalism doctrines-such as the dormant commerce clause, implied preemption, federal preclusion law, and certain special "enclaves" of federal common law courts will displace state law to protect federal interests even when neither Congress nor the Constitution clearly articulates those interests. But under the Eric doctrine, the Supreme Court has mandated exactly the opposite approach: state law trumps federal interests unless those interests have been legislatively codified. This striking anomaly has not been noticed, in part because the voluminous …

Publication Of Government-Funded Research, Open Access, And The Public Interest, Julie L. Kimbrough, Laura N. Gasaway

Vanderbilt Journal of Entertainment & Technology Law

Public access to government-funded research is an issue of tremendous importance to researchers, librarians, and ordinary citizens around the world. Based on the notion that taxpayers finance research through their tax dollars, research data should be available to them. Rapid, unfettered access to research publications provides access to medical research to patients, encourages further exploration and inquiry by other researchers, informs citizens, and advances scientific research.

Scientists typically write articles that divulge the results of their government-funded research. Prior to the open access movement, these articles were published in commercially produced journals. Subscriptions to these journals are expensive, and cost …

The Psychic Costs Of Violating Corruption Laws, Philip M. Nichols

Vanderbilt Journal of Transnational Law

Understanding corruption is imperative for legal scholarship, both as an intellectual subject and because corruption impedes the operation of law in much of the world and inflicts damage on well-being, governance, and quality of life. Legal scholars have contributed substantial quantitative research on corruption; this paper adopts a qualitative methodology. The similarities and differences between Singapore and Malaysia present opportunities for research. Interviews with discussants in those two countries indicate a real difference in the degree to which corruption laws have been internalized. Differences in the degree of internalization suggest differences in the psychic costs imposed by violation of corruption …

Respect My Authority! South Park's Expression Of Legal Ideology And Contribution To Legal Culture, Kimberlianne Podlas

Vanderbilt Journal of Entertainment & Technology Law

This Article recognizes that television programs outside of the law genre can engage in legal discourse: to wit, South Park. South Park has been called one of the most profane programs on television, as well as one of the most ideological. Indeed, through sophisticated, no-holds-barred satire, South Park contemplates a number of American culture's most complex and contentious legal issues. This Article systematically analyzes the legal ideologies conveyed by South Park, combining an interpretive ethnographic analysis with quantitative content analyses. Ultimately, these examinations reveal that South Park communicates a libertarian ideology of law. In doing so, however, it does not …

Echoes Of The Sumptuary Impulse: Considering The Threads Of Social Identity, Economic Protectionism, And Public Morality In The Proposed Design Piracy Prohibition Act, Lucille M. Ponte

Vanderbilt Journal of Entertainment & Technology Law

Traditional sumptuary laws, especially those government efforts aimed at regulating public attire, are often considered to be largely dusty relics of pre-industrial societies. Yet cultural legal theorists have long argued that sumptuary codes are still relevant and inextricably linked to the development of our contemporary socio-legal hierarchy. A better understanding of the primary objectives embodied in earlier sumptuary codes can shed important historical light and guidance on issues being discussed in current policy-making arenas, such as the proposed Design Piracy Prohibition Act (DPPA). The proposed law has yielded lively debates amongst legal commentators and industry professionals regarding whether or not …

Do Norms Still Matter? The Corrosive Effects Of Globalization On The Vitality Of Norms, Patrick J. Keenan

Vanderbilt Journal of Transnational Law

Why does the process of globalization undermine the power of social norms to regulate behavior? Norms are the social regularities that shape individual behavior and help to create vibrant--or dysfunctional--communities. Most theories of norms do not account for the many ways that globalization affects the foundations of norms. This Article fills the gap by developing a more robust theory of the informal regulation of behavior that considers the ways that the process of globalization can interfere with the creation of norms and erode their power.

Drawing on behavioral economics, sociology, and criminology, the theory proposed in this Article contains three …

Creating The Right Mentality: Dealing With The Problem Of Juror Delinquency In The New South Korean Lay Participation System, Eric Seo

Vanderbilt Journal of Transnational Law

The Judiciary Reform Committee of South Korea has planned to implement a five year pilot program that will allow public participation in trials. This will be the first time in the nation's judicial history that lay participation will be used. The format of the pilot program will be a mixture of the U.S.-style jury system and the German lay assessor system, with the program being more akin to the U.S. system. As South Korea has never had a lay participation system, it has a unique opportunity to create a system that will avoid problems associated with lay participation. This Note …

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia Jr.

Vanderbilt Law Review

In the debate over how federal courts should interpret federal statutes, "faithful agent" theories stand pitted against "dynamic" theories of statutory interpretation. The following questions lie at the heart of the debate: Is the proper role of federal courts to strive to implement the commands of the legislature-in other words, to act as Congress's faithful agents? Or, is the proper role of federal courts to act as partners with Congress in the forward-looking making of federal law-in other words, to interpret statutes dynamically? Proponents of faithful agent theories include both "textualists" and "purposivists." Textualists have argued that federal courts best …

From The Ali To The Ili: The Efforts To Export An American Legal Institution, Jayanth K. Krishnan

Vanderbilt Journal of Transnational Law

In this Article, the Author argues that those who believe that Americans can successfully export their visions of law and legal research to other countries need to consider--in addition to Japan and Germany, two countries that are often touted as exemplars--the case of India. India gained its independence from the British in 1947, and soon thereafter many U.S. experts traveled to India in an effort to foster a culture of Western legal intellectualism. As part of their mission to improve the status of law in India, the Americans, upon their arrival, strongly advocated for the construction of a national Indian …

On What A "Private Attorney General" Is--And Why It Matters, William B. Rubenstein

Vanderbilt Law Review

May 17, 2004 marked the fiftieth anniversary of the Supreme Court's decision in Brown v. Board of Education.' This precise day also marked the sixty-first anniversary of the Supreme Court's first use of the phrase "private attorney general." For about three decades after this initial 1943 appearance, the private attorney general concept surfaced only occasionally in the legal literature. Starting in the 1970s, however, its presence became quite regular, and that regularity has escalated steadily to the present: on average, during the past fifteen years, every single workday, somewhere in the United States, some judge has written a legal opinion …

Modernizing Muslim Family Law: The Case Of Egypt, Lama Abu-Odeh

Vanderbilt Journal of Transnational Law

he Author discusses the dynamics of family law reforms in modern Egypt as an instance of similar dynamics of reforms in other Muslim countries. The forces that push for reforms as well as those that try to limit them are also introduced.

The Author begins by describing the historical legal background shared by the vast majority of Muslim countries, including Egypt. An account of the general evolution of Islamic law-from a dominant system existing within an Islamic state to a subordinate system existing within an overall secularized legal system characterized by legal borrowing from European codes-is given. Islamic law has …

Chicago Man, K-T Man, And The Future Of Behavioral Law And Economics, Robert A. Prentice

Vanderbilt Law Review

Most law is aimed at shaping human behavior, encouraging that which is good for society and discouraging that which is bad.' Nonetheless, for most of the history of our legal system, laws were passed, cases were decided, and academics pontificated about the law based on nothing more than common sense assumptions about how people make decisions. A quarter century or more ago, the law and economics movement replaced these common sense assumptions with a well-considered and expressly stated assumption-that man is a rational maximizer of his expected utilities. Based on this premise, law and economics has dominated interdisciplinary thought in …

The Cloudy Crystal Ball: Genetics, Child Abuse, And The Perils Of Predicting Behavior, Robert D. Stone

Vanderbilt Law Review

In the cinematic world of Minority Report, mankind stands on the brink of a society without murder. Police can see the future, predicting murders and arresting perpetrators before they act. This utopian system is the ultimate evolution in preventative policing because it offers perfect prediction; it does not show what people intend to do, only what they will do. Society accepts the incarceration of pre-murderers, people who have committed no crimes, because there is no such thing as the "wrongfully accused.' Is the ability to predict behavior only science fiction, or can a combination of genetic and environmental factors actually …

Rejecting The Myth Of Popular Sovereignty And Applying An Agency Model To Direct Democracy, Glen Staszewski

Vanderbilt Law Review

The use of direct democracy is at its highest level in more than one hundred years.' The direct initiative, which is the primary focus of this Article, allows private citizens to bypass the traditional legislative process and make binding laws, often in highly contentious areas of public policy. The 2000 elections, for example, placed directly before voters the issues of school vouchers, physician-assisted suicide, same- sex marriage and other gay and lesbian rights, gun control, campaign finance reform, bilingual education, gambling, medical use of marijuana, and sentencing for drug offenders, as well as some of the perennial favorites-tax reform and …

An International "Truth Commission": Utilizing Restorative Justice As An Alternative To Retribution, Carrie J. Niebur Eisnaugle

Vanderbilt Journal of Transnational Law

A restorative justice paradigm emphasizes healing relationships between offenders, their victims, and the community in which the offense took place. It rejects retribution as a response to crime, focusing instead on the needs of all parties involved. This Note discusses the necessity for, and possible benefits of, using restorative justice principles when responding to international crimes and conflicts. Prosecution, war, and other violent means remain the most common responses to crime and conflict today. Such retributive reactions often lead to further violence rather than healing and peace. Using restorative justice principles to address crime and conflict, as was done in …

Regulating Federal Prosecutors' Ethics, Bruce A. Green, Fred C. Zacharias

Vanderbilt Law Review

To what extent should federal prosecutors be regulated by states, by federal courts, or by the U.S. Department of Justice ("DOJ) as a matter of self-regulation? This Article concludes that, subject to congressional oversight, federal courts should have the ultimate authority to regulate federal prosecutors. However, it also acknowledges the legitimacy of competing claims by the states and DOJ. Sometimes, federal courts should defer to state court regulation, given traditional state regulation of the practice of law and a host of practical considerations. At other times, federal prosecutors have compelling reasons to seek freedom from both state regulation and regulation …

Terrorism And Globalization: An International Perspective, Linda Lim

Vanderbilt Journal of Transnational Law

Terrorism has little or nothing to do with globalization, just as it has little or nothing to do with Islam. Most of the many varieties of terrorism that afflict and have long afflicted the world are responses not to global phenomena, but to intensely local ones. Examples include particularly ethnic, nationalist, and religious fault lines such as violence by Catholics and Protestants in Ireland; Basques in Spain; the Hindu Tamil Tigers in Sri Lanka; Kashmiris, Sikhs, and Hindu nationalists in India; the Aum cult in Japan; and Uighurs in Xinjiang, China.

The terrorists who attacked the World Trade Center on …