Law Commons^™

An Original Take On Originalism, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The argument that Professor Orin Kerr proffers in An Equilibrium-Adjustment Theory of the Fourth Amendment' is simple: Fourth Amendment law ought to be structured to ensure that the balance of power between government and citizenry remains constant. This equilibrium-adjustment theory is elegant and, because it rests on a relatively "neutral" historical foundation, might be attractive to judges and scholars from different perspectives. Contrary to Kerr's assertion, however, it does not easily explain many of the Court's cases, nor does it help address the most difficult Fourth Amendment issues facing the Court today. The historical foundations on which it rests are …

Deterring And Compensating Oil-Spill Catastrophes: The Need For Strict And Two-Tier Liability, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The BP Deepwater Horizon oil spill highlighted the glaring weaknesses in the current liability and regulatory regime for oil spills and for environmental catastrophes more broadly. This Article proposes a new liability structure for deep-sea oil drilling and for catastrophic risks generally. It delineates a two-tier system of liability. The first tier would impose strict liability up to the firm's financial resources, including insurance coverage. The second tier would be an annual tax equal to the expected costs in the coming year beyond this damages amount. Before beginning a risky operation, the proposed liability scheme would identify a single firm-the …

Flying Into The Future: Drone Warfare And The Changing Face Of Humanitarian Law, Michael A. Newton

Vanderbilt Law School Faculty Publications

Before we consider the specifics of drone warfare, we must remember two predicate points. Firstly, the discipline of international criminal law has never been healthier as the era of accountability is irreversibly underway. While the challenges of administering justice in the midst of profound political and personal passions remain, there is no current shortage of young and inspired advocates who wish to contribute. Furthermore, they do so against the backdrop of a developed discipline. It cannot be forgotten that the discrete discipline that we term international criminal law, and that many of us teach in our law schools, has taken …

The Ticket To Easy Street? The Financial Consequences Of Winning The Lottery, Paige Marta Skiba, Scott Hankins, Mark Hoekstra

Vanderbilt Law School Faculty Publications

This paper examines whether giving large cash transfers to financially distressed people causes them to avoid bankruptcy. A comparison of Florida Lottery winners who randomly received $50,000 to $150,000 to small winners indicates that such transfers only postpone bankruptcy rather than prevent it, a result inconsistent with the negative shock model of bankruptcy. Furthermore, the large winners who subsequently filed for bankruptcy had similar net assets and unsecured debt as small winners. Thus, our findings suggest that skepticism regarding the long-term impact of cash transfers may be warranted.

The Ticket To Easy Street? The Financial Consequences Of Winning The Lottery, Scott Hankins, Mark Hoekstra

Vanderbilt Law School Faculty Publications

This paper examines whether giving large cash transfers to financially distressed people causes them to avoid bankruptcy. A comparison of Florida Lottery winners who randomly received $50,000 to $150,000 to small winners indicates that such transfers only postpone bankruptcy rather than prevent it, a result inconsistent with the negative shock model of bankruptcy. Furthermore, the large winners who subsequently filed for bankruptcy had similar net assets and unsecured debt as small winners. Thus, our findings suggest that skepticism regarding the long-term impact of cash transfers may be warranted.

The Implications Of Disentanglement, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Scholars have long used the term "administrative search cases" to refer to judicial decisions dealing with searches carried out by officials other than the police and designed to implement prohibitions that are as much regulatory as criminal. These searches include health and safety inspections, roadblocks, drug testing, and searches of school children and public employees for evidence of rule violations. In her article Disentangling Administrative Searches,' Professor Eve Brensike Primus makes three distinct claims about the Supreme Court's decisions on this subject. Her first and most important argument is that, contrary to the usual view, these cases are not all …

Foreign Official Immunity Determinations In U.S. Courts: The Case Against The State Department, Ingrid Wuerth Brunk

Vanderbilt Law School Faculty Publications

The immunity of foreign states from suit in U.S. courts is governed by a federal statute, the Foreign Soveriegn Immunities Act (FSIA). This statute does not apply to the immunity of individual foreign officials, however, as the Supreme Court recently held in Samantar v. Yousuf Instead, the Court reasoned, the immunity of foreign government officials is controlled by common law. But there is no extant body offederal or state common law governing foreign official immunity, and the Court did not clarify how this law should be developed going forward. The State Department claims that it holds constitutional power to make …

The Four Pillars Of Constitutional Doctrine, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Constitutional interpretation, and thus constitutional doctrine, is inevitably controversial. Judges, scholars, lawyers, politicians, and the American public all disagree among themselves, not only about the correct constitutional outcome but even about the right approach to constitutional interpretation. We are unlikely to reach consensus on whether we should read the Constitution as a living and evolving document or instead read it in accordance with a fixed original meaning, much less on whether it does or does not protect campaign contributions, reproductive rights, affirmative action policies, gun ownership, or any of the other contested issues that have recently come before the Supreme …

Macro-Risks: The Challenge For Rational Risk Regulation, Michael P. Vandenbergh, Jonathan A. Gilligan

Vanderbilt Law School Faculty Publications

Drawing on the recent financial crisis, we introduce the concept of macro-risk. We distinguish between micro-risks, which can be managed within conventional economic frameworks, and macro-risks, which threaten to disrupt economic systems so much that a different approach is required. We argue that catastrophic climate change is a prime example of a macro-risk. Research by climate scientists suggests disturbingly high likelihoods of temperature increases and sea level rises that could cause the kinds of systemic failures that almost occurred with the financial system. We suggest that macro-risks should be the principal concern of rational risk assessment and management, but they …

Brain Scans As Evidence: Truths, Proofs, Lies, And Lessons, Owen D. Jones, Francis X. Shen

Vanderbilt Law School Faculty Publications

This contribution to the Brain Sciences in the Courtroom Symposium identifies and discusses issues important to admissibility determinations when courts confront brain-scan evidence. Through the vehicle of the landmark 2010 federal criminal trial U.S. v. Semrau (which considered, for the first time, the admissibility of brain scans for lie detection purposes) this article highlights critical evidentiary issues involving: 1) experimental design; 2) ecological and external validity; 3) subject compliance with researcher instructions; 4) false positives; and 5) drawing inferences about individuals from group data. The article’s lessons are broadly applicable to the new wave of neurolaw cases now being seen …

Economics, Behavioral Biology, And Law, Owen D. Jones, Erin O'Hara O'Connor, Jeffrey Evans Stake

Vanderbilt Law School Faculty Publications

The article first compares economics and behavioral biology, examining the assumptions, core concepts, methodological tenets, and emphases of the two fields. Building on this, the article then compares the applied interdisciplinary fields of law and economics, on one hand, with law and behavioral biology, on the other - highlighting not only the most important similarities, but also the most important differences.

The article subsequently explores ways that biological perspectives on human behavior may prove useful, by improving economic models and the behavioral insights they generate. The article concludes that although there are important differences between the two fields, the overlaps …

Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois

Vanderbilt Law School Faculty Publications

Because punishable guilt requires that bad thoughts accompany bad acts, the Model Penal Code (MPC) typically requires that jurors infer the past mental state of a criminal defendant. More specifically, jurors must sort that mental state into one of four specific categories - purposeful, knowing, reckless, or negligent - which in turn defines the nature of the crime and the extent of the punishment. The MPC therefore assumes that ordinary people naturally sort mental states into these four categories with a high degree of accuracy, or at least can reliably do so when properly instructed. It also assumes that ordinary …

Adolescent Brain Science After Graham V. Florida, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without possibility of parole for a non-homicide crime committed when the offender was under the age of eighteen. In an earlier Article, The False Promise of Adolescent Brain Science in Juvenile Justice, this author noted the pendency of Graham and its companion case, in which petitioners and their amici offered neuroscientific arguments closely paralleling those made by the defendant in Roper v. Simmons. Kennedy’s opinion in Graham clarified what his opinion in Roper had left ambiguous: the Court believes neuroscience relevant to general …

The Google Book Settlement And The Trips Agreement, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The proposed amended settlement in the Google Book case has been the focus of numerous comments and critiques. This "perspective" reviews the compatibility of the proposed settlement with the TRIPS Agreement and relevant provisions of the Berne Convention that were incorporated into TRIPS, in particular the no-formality rule, the most-favored nation (MFN) clause, national treatment obligations, and the so-called three-step test.

Golan V. Holder: A Look At The Constraints Imposed By The Berne Convention, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

One of the central issues in the Golan v. Holder litigation is the extent to which the United States had flexibility to tailor the protection of existing works that had fallen in the public domain when it joined the Berne Convention. This Essay argues that the Berne Convention obligates the United States as a Berne Union member to provide some degree of protection, but otherwise leaves wide latitude to set the conditions under which works in the public domain receive retroactive copyright protection. The Convention itself does not mandate that any particular level of protection be granted to such works …

Survey Mode Effects On Valuation Of Environmental Goods, W. Kip Viscusi, Jason Bell, Joel Huber

Vanderbilt Law School Faculty Publications

This article evaluates the effect of the choice of survey recruitment mode on the value of water quality in lakes, rivers, and streams. Four different modes are compared: bringing respondents to one central location after phone recruitment, mall intercepts in two states, national phone-mail survey, and an Internet survey with a national, probability-based sample. The modes differ in terms of the representativeness of the samples, non-response rates, sample selection effects, and consistency of responses. The article also shows that the estimated benefit value can differ substantially depending on the survey mode. The national Internet panel has the most desirable properties …

Comparing Ceo Employment Contract Provisions: Differences Between Australia And The United States, Randall Thomas, Jennifer G. Hill, Ronald W. Masulis

Vanderbilt Law School Faculty Publications

The results of our comparison of U.S. and Australian contracts offer some interesting contrasts with several earlier studies that compare U.S. and U.K. CEO compensation. In those prior studies, the authors conclude that U.S. CEOs' compensation is significantly higher than U.K. CEOs' compensation. What is interesting about our initial results is that U.S. CEOs clearly do not have higher base salaries in comparison to Australia. On the other hand, U.S. contracts are much more likely to include restricted stock and stock option features, which generally require payment after a CEO remains at the firm a fixed number of years, typically …

Organizational Apologies: Bp As A Case Study, Erin O'Connor

Vanderbilt Law School Faculty Publications

This Article examines the conduct of BP executives in the weeks following the Deepwater Horizon oil spill to illuminate the use of apology by organizations. After briefly describing the value of apology and its nuances from an evolutionary perspective, the Article describes how apology and other responsibility-accepting behaviors can be mobilized by organizations to avoid the costs of its apparently careless conduct. In particular, organizations can designate particular agents as spokespersons who possess the ability to portray a sense of sincerity and regret. Moreover, reconciliation by ingroup members appears to be more common than is reconciliation by outgroup members, likely …

The Law Of War In The War Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

The struggle to define the contours of the legal regime and to correctly communicate those expectations to the broader audience of civilians is a recurring problem that is integrally related to the current evolution of warfare. Shaping the expectations and perceptions of the political elites who control the contours of the conflict is perhaps equally vital. The paradox is that as the legal regime applicable to the conduct of hostilities has matured over the last century, the legal dimension of conflict has at times overshadowed the armed struggle between adversaries. As a result, the overall military mission will often be …

Constitutional Adjudication In Japan: Context, Structures, And Values, John O. Haley

Vanderbilt Law School Faculty Publications

Judges in Japan share the prevailing communitarian orientation of their society, an orientation that rejects Manichean choices and moral or "scientific" absolutes, but instead relies on their collective and individual perceptions of community values, including the global community, shared by peers. They also, I believe, accept an unstated premise that legislative and administrative decisions reflect a consensus among the participants--not a simple majority. The issue remains as to who participates--who sits at the table--but the political and administrative processes do not routinely require merely fifty-one out of a hundred votes. As a consequence, judges are cautiously conservative. They adhere to …

A Critical Appraisal Of The Department Of Justice's New Approach To Medical Marijuana, Robert A. Mikos

Vanderbilt Law School Faculty Publications

The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hard-ball tactics favored by earlier Administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DOJ) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the DOJ’s new Non Enforcement Policy (NEP). In a nutshell, it suggests that early enthusiasm for the …

Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry

Vanderbilt Law School Faculty Publications

This essay was written for “Supreme Mistakes: Exploring the Most Maligned Decisions in Supreme Court History.” A symposium on the worst Supreme Court decision of all time risks becoming an exercise best described by Claude Rains’s memorable line in Casablanca: “Round up the usual suspects.” Two things saved this symposium from that fate. First, each of the usual suspects was appointed defense counsel, which made things more interesting. Second, a new face found its way into the line-up: Erie Railroad v. Tompkins. My goal in this essay is to explain why Erie is in fact guiltier than all of the …

Atypical Inventions, Sean B. Seymore

Vanderbilt Law School Faculty Publications

Patent law is constantly evolving to accommodate advances in science and technology. But, for a variety of reasons, some aspects of patent doctrine have not evolved over time leading to a growing disconnect between the patent system and certain technical communities. Particularly vulnerable to the ill effects of this disconnect are "atypical" inventions, which this Article definesas those in which either (1) a technical aspect of the invention or the inventive process does not conform to an established legal standard in patent law or (2) the technical underpinnings of the invention depart from well-established scientific paradigms. An example of the …

Condemning The Decisions Of The Past, Christopher Serkin

Vanderbilt Law School Faculty Publications

This brief Essay, part of a Fordham Urban Law Journal Symposium on eminent domain in New York, argues that there is a seldom-recognized purpose to eminent domain: preserving the ability of elected representatives to respond to the will of the people. The essay proposes that eminent domain allows government to depart from the policy choices of administrations which came before and is therefore a tool for preserving "democratic legitimacy." It explores this theory by examining examples such as breaking up the adult use zones in Times Square and reclaiming New York's waterfront.

Gaming The Past: The Theory And Practice Of Historic Baselines In The Administrative State, J.B. Ruhl, Robin Craig

Vanderbilt Law School Faculty Publications

This article explores in detail the attributes and operation of historic baselines. That historic baselines are found throughout regulatory law is no accident. Particularly when the policy goal involves turning back the clock or halting an undesirable trend, historic baselines have distinct advantages compared to alternative techniques for standard setting. These advantages include rhetoric, familiarity, and flexibility. The use of the temporal reference point lies at the heart of what makes historic baselines distinct in this respect, yet it is also what makes them qualitatively different for purposes of gaming. Leveraging the past provides an additional dimension to the gaming …

General Design Principles For Resilience And Adaptive Capacity In Legal Systems--With Applications To Climate Change Adaptation, J.B. Ruhl

Vanderbilt Law School Faculty Publications

No force has put more pressure on the legal system than is likely to be exerted as climate change begins to disrupt the settled expectations of humans. Demands on the legal system will be intense and long-term, but is the law up to the task? If it is, it will at least in part be because the legal system proves to be resilient and adaptive. The question this Article explores, therefore, is how to think about designing legal instruments and institutions now with confidence they will be resilient and adaptive to looming problems as massive, variable, and long-term in scale …

Outsourcing Modularity, And The Theory Of The Firm, Margaret M. Blair, Erin O'Hara O'Connor, Gregg Kirchhoefer

Vanderbilt Law School Faculty Publications

Firms have increasingly moved productive activities from within to outside the firm through outsourcing arrangements. According to some estimates, the value of outsourcing contracts has been nearly 100 billion dollars per year since 2004. Firm outsourcing happens for a number of reasons, including to save labor costs, capture the benefits of regulatory arbitrage, and take advantage of economies of scale in the provision of firm needs. We review a number of outsourcing contracts for evidence that contract techniques are used to help modularize the relationship between the firm and its service provider. Consistent with what modularity theory might predict, some …

Symposium Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

If the international law of immunity once purported to make foreign states, their rulers, their officials, and their boats all identical in some sense--the sovereign equality of states--today immunity distinguishes and differentiates between the state's commercial and private features, its tortious and non-tortious conduct committed in the forum state, and sometimes even the torture, war crimes, and acts of terrorism carried out in its name. Of course, sovereign equality has diminished in general as human rights have grown, but even as nation-states accept treaty-based obligations toward their own citizens, they refuse to make themselves explicitly accountable in the national courts …

Agency Independence After Pcaob, Kevin M. Stack

Vanderbilt Law School Faculty Publications

Separation of powers has a new endeavor. The PCAOB decision makes the validity of good-cause removal protections depend on the separation of adjudicative from policymaking and enforcement functions within the agency. At a minimum, within independent agencies, it preserves the second layer of removal protection only for dedicated adjudicators. But its logic extends further. In PCAOB, the demand for political supervision over rulemaking and enforcement trumped Congress's choice to preserve the independence of officials who perform those roles and also adjudicate. In that way, PCAOB reversed the consistent constitutional validation of good-cause removal protections for those who engage in adjudication. …

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Among modern-day legal academics determinate sentencing and limiting retributivism tend to be preferred over indeterminate sentencing, at least in part because the latter option is viewed as immoral. This Article contends to the contrary that, properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so. More specifically, the position defended in this Article is that, once a person is convicted of such an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within very broad ranges set by the …