Law Commons^™

A Systematic Literature Review Of Individuals' Perspectives On Privacy And Genetic Information In The United States, Ellen W. Clayton, Colin M. Halverson, Nila A. Sathe, Bradley A. Malin

Vanderbilt Law School Faculty Publications

Concerns about genetic privacy affect individuals' willingness to accept genetic testing in clinical care and to participate in genomics research. To learn what is already known about these views, we conducted a systematic review, which ultimately analyzed 53 studies involving the perspectives of 47,974 participants on real or hypothetical privacy issues related to human genetic data. Bibliographic databases included MEDLINE, Web of Knowledge, and Sociological Abstracts. Three investigators independently screened studies against predetermined criteria and assessed risk of bias. The picture of genetic privacy that emerges from this systematic literature review is complex and riddled with gaps. When asked specifically …

Environmental Protection Requires More Than Social Resilience, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Achieving the green economy requires taking into account divisive politics and distributive justice.

Valuing The Risk Of Workplace Sexual Harassment, Joni Hersch

Vanderbilt Law School Faculty Publications

Using data on sexual harassment charges filed with the Equal Employment Opportunity Commission, I calculate the risk of sexual harassment by gender, industry, and age and establish that white females, but not nonwhite females, receive a compensating wage differential for exposure to a higher risk of sexual harassment. I use this risk premium to calculate the value of statistical harassment (VSH) in a manner analogous to the calculation of the value of statistical life (VSL). The VSH is around $7.6 million, about three-quarters of the size of the most-commonly cited levels of the VSL, and far above the maximum damages …

Taking Antitrust Away From The Courts, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts – made up of …

Appeals By The Prosecution, Nancy J. King, Michael Heise

Vanderbilt Law School Faculty Publications

Scholarly and public debates about criminal appeals have largely taken place in an empiri- cal vacuum. This study builds on our prior empirical work exploring defense-initiated criminal appeals and focuses on criminal appeals by state and federal prosecutors. Exploit- ing data drawn from a recently released national sample of appeals by state prosecutors decided in 2010, as well as data from all appeals by federal prosecutors to the U.S. Courts of Appeals terminated in the years 2011 through 2016, we provide a detailed snapshot of noncapital, direct appeals by prosecutors, including extensive information on crime type, claims raised, type of …

The Future Of The Federal Common Law Of Foreign Relations, Ingrid W. Brunk

Vanderbilt Law School Faculty Publications

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficul- ties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reli- ance upon presidential or congressional action, or by …

An Honest But Fearless Fighter: The Adversarial Ideal Of Public Defenders In 1930s And ’40s Los Angeles, Sara Mayeux

Vanderbilt Law School Faculty Publications

Vercoe's self-description as a courtroom "fighter" illuminates public defenders' professional identity in the United States in the decades after the criminal courts had developed into a modem bureaucracy, but before the Warren Court constitutionalized criminal procedure. Historians have characterized lawyering for the poor as outside the mainstream of adversar- ial legal culture, describing a "two-tiered legal system" in which lawyers celebrated courtroom combat on behalf of paying clients but relegated the indigent to a lesser form of advocacy that valorized "compromise." Comporting with this characterization, legal scholars have portrayed early public defenders as "assembly-line" workers who conducted little factual investigation …

U.S. Conflict Of Laws Involving International Estates And Marital Property: A Critical Analysis Of "Estate Of Charania V. Shulman", Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

A number of states, as well as foreign jurisdictions, impose a community property regime. Under this regime, regardless of the title to property, each spouse is deemed to own a fifty percent interest in assets. When a spouse dies owning property in his own name, the tendency is to treat him as the owner of the asset in full for purposes of the power to dispose of the asset and for transfer tax purposes. However, if the property is community property, then the decedent 's power to dispose of it, and the portion of the property subject to taxation, is …

An Analysis Of Sanctuary Campuses, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

"I am originally from Mexico but have lived in Washington State since I was [nine] months old .... In 2006, as a high school sophomore, I discovered my true immigration status in the United States. I was an undocumented Mexican-American and all of my hopes and dreams seemed to shatter at that point . . . . My parents came to the United States to give their children a better life, and that included an education . . . . When immigration reform does happen, I will then have an opportunity to apply my skills in the workforce without having …

Navigating The Research-Clinical Interface In Genomic Medicine: Analysis From The Cser Consortium, Ellen Wright Clayton, Susan M. Wolf, Laura M. Amendola, Et Al.

Vanderbilt Law School Faculty Publications

Purpose: The Clinical Sequencing Exploratory Research (CSER) Consortium encompasses nine National Institutes of Health– funded U-award projects investigating translation of genomic sequencing into clinical care. Previous literature has distinguished norms and rules governing research versus clinical care. This is the first study to explore how genomics investigators describe and navigate the research–clinical interface. Methods: A CSER working group developed a 22-item survey. All nine U-award projects participated. Descriptive data were tabulated and qualitative analysis of text responses identified themes and characterizations of the research–clinical interface. Results: Survey responses described how studies approached the research–clinical interface, including in consent practices, recording …

Who Knows What, And When?: A Survey Of The Privacy Policies Proffered By U.S. Direct-To-Consumer Genetic Testing Companies, Christopher Slobogin, James W. Hazel

Vanderbilt Law School Faculty Publications

Direct-to-consumer genetic testing (DTC-GT) companies have proliferated in the past several years. Based on an analysis of genetic material submitted by consumers, these companies offer a wide array of services, ranging from providing information about health and ancestry to identification of surreptitiously-gatheredb iological materials ent in by suspicious spouses. Federal and state laws are ambiguous about the types of disclosures these companies must make about how the genetic information they obtain is collected, used, and shared. In an effort to assist in developing such laws, this Article reports a survey of the privacy policies these companies purport to follow. It …

Is It Time For A Universal Genetic Forensic Database?, J. W. Hazel, Ellen Wright Clayton, B. A. Malin, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The ethical objections to mandating forensic profiling of newborns and/or compelling every citizen or visitor to submit to a buccal swab or to spit in a cup when they have done nothing wrong are not trivial. But newborns are already subject to compulsory medical screening, and people coming from foreign countries to the United States already submit to fingerprinting. It is also worth noting that concerns about coercion or invasions of privacy did not give pause to legislatures (or, for that matter, even the European Court) when authorizing compelled DNA sampling from arrestees, who should not forfeit genetic privacy interests …

The Fatal Failure Of The Regulatory State, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The impact of government policies depends on their design, implementation, and enforcement.! The administrative law literature focuses primarily on matters of regulatory structure.2 Government agencies entrusted with protection of the environment and promotion of health and safety foster these objectives by designing and promulgating regulations that are sometimes quite stringent.' Whether these regulations will in fact generate their intended effects depends on whether they create sufficient economic incentives to discourage risky behavior...

The Article begins by documenting the low values currently placed on life in regulatory enforcement efforts. Part I presents examples involving job safety, food safety, motor-vehicle safety, and …

Forensics, Chicken Soup, And Meteorites: A Tribute To Michael Risinger, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Michael Risinger's scholarship has had a profound impact on our field. And while his work has run the gamut in evidence law, I think it is clear that Michael's true love has always been expert evidence, and more specifically, forensics. So let me take a moment to revisit "an oldie but a goodie": his 1989 article entitled Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification "Expertise," published in the University of Pennsylvania Law Review, and co-authored with Mark Denbeaux and Michael Saks.' For those of you who have not read the article, you should. …

Money As Infrastructure, Morgan Ricks

Vanderbilt Law School Faculty Publications

Traditional infrastructure regulation—the law of regulated industries—rests atop three pillars: rate regulation, entry restriction, and universal service. This mode of regulation has typically been applied to providers of network-type resources: resources that are optimally supplied as integrated systems. The monetary system is such a resource; and money creation is the distinctive function of banks. Bank regulation can therefore be understood as a subfield of infrastructure regulation. With few exceptions, modern academic treatments of banking have emphasized banks’ intermediation function and downplayed or ignored their monetary function. Concomitantly, in recent decades U.S. bank regulation has strayed from its infrastructural roots. This …

The Money Problem: A Rejoinder, Morgan Ricks

Vanderbilt Law School Faculty Publications

Let me begin by thanking Yuri Biondi and Accounting, Economics and Law: A Convivium for hosting this book review symposium. It is a privilege to have my book reviewed by this distinguished roster of experts. Since the book's publication I have had some time to reflect on its strengths and weaknesses. Unsurprisingly, the reviewers in this issue have identified a number of the book's more glaring shortcomings. But it relieves me to say that I don't think the book's key arguments have (yet) sustained any mortal wounds, even if solid blows have been landed.

The basic thesis of The Money …

Insider Information And The Limits Of Insider Trading, Yesha Yadav

Vanderbilt Law School Faculty Publications

This essay offers brief observations on the internal coherence of the rationales underlying the prohibition against insider trading, taking the opportunity offered by Newman and Salman to reflect on its central policy aims. I do not discuss these cases specifically, or what a resolution by the Supreme Court might mean for the future of insider trading. Scholars and commentators have thoughtfully critiqued Newman alongside the doctrinal whiplash that has followed in its wake. Rather, I take this opportunity to look under the hood of securities trading to examine information flows within the mechanisms by which securities are bought and sold. …

Too-Big-To-Fail Shareholders, Yesha Yadav

Vanderbilt Law School Faculty Publications

To build resilience within the financial system, post-Crisis regulation relies heavily on banks to fund themselves more fully by issuing equity. This reserve of value should buttress failing banks by providing a mechanism to pay off creditors and depositors and preserve the health of financial markets. In the process, shareholders are wiped out. Scholars and policymakers, however, have neglected to examine which equity investors, in fact, are purchasing bank equity and taking on the default risk of U.S. banks. This Article addresses this question. First, it shows that five asset managers - BlackRock, Vanguard, State Street Global Advisors, Fidelity and …

Music As A Matter Of Law, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

What is a musical work? Philosophers debate it, but for judges the answer has long been simple: music means melody. Though few recognize it today, that answer goes all the way back to the birth of music copyright litigation in the nineteenth century. Courts adopted the era’s dominant aesthetic view identifying melody as the site of originality and, consequently, the litmus test for similarity. Surprisingly, music’s single-element test has persisted as an anomaly within the modern copyright system, where typically multiple features of eligible subject matter are eligible for protection. Yet things are now changing. Recent judicial decisions are beginning …

Principles Of Risk Assessment: Sentencing And Policing, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Risk assessment — measuring an individual’s potential for offending — has long been an important aspect of criminal justice, especially in connection with sentencing, pretrial detention and police decision-making. To aid in the risk assessment inquiry, a number of states have recently begun relying on statistically-derived algorithms called “risk assessment instruments” (RAIs). RAIs are generally thought to be more accurate than the type of seat-of-the-pants risk assessment in which judges, parole boards and police officers have traditionally engaged. But RAIs bring with them their own set of controversies. In recognition of these concerns, this brief paper proposes three principles — …

Debating The Past's Authority In Alabama, Sara Mayeux

Vanderbilt Law School Faculty Publications

With some exceptions, the major project of civil rights litigators today is not forward movement but the work of preserving as much as possible the gains of the 1960s against legal and political battering.29 Meanwhile, and ironically, the rise of conservative progress metanarratives reflects the achievement of both liberal and radical scholars of forcing into mainstream discourse greater recognition of the evils of slavery and Jim Crow. Respectable conservatives now join in denouncing the most flagrant forms of racial terror running through the American past (pace certain allies of the Trump Administration). But doing so places them in a bind, …

How And Why Is The American Punishment System "Exceptional"?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Anyone interested in American criminal justice has to wonder why we have so many more people in prison—in absolute as well as relative terms—than the western half of the European continent, the part of the world most readily comparable to us. This book, consisting of eleven chapters by eminent criminal law scholars, criminologists and political scientists, provides both a detailed look at how U.S. punishment is different and an insightful analysis of why that might be so. While many chapters in the book describe previously declared positions of the authors, there is also much that is new in the book, …

Revisiting The Public Utility, Jim Rossi, Morgan Ricks

Vanderbilt Law School Faculty Publications

This foreword introduces "Revisiting the Public Utility," a series of essays published in a special issue of Yale Journal on Regulation. We cluster the contributions to this issue around public utility regulation’s core rationales and its scope, its implications for innovation and industry stability, and its evolving approach to price regulation. The scholarship represented in this issue challenges the notion that public utility ideas are obsolete or irrelevant to modern issues in economic regulation. It questions whether public utility regulation has fallen short of its goals, and shows that there are some good reasons to question many embedded regulatory practices. …

In Appreciation Of The Tarlock Effect, J.B. Ruhl

Vanderbilt Law School Faculty Publications

So, what is one to do about The Tarlock Effect? It didn't take long for me to realize early in my academic career-well before my foray into climate change adaptation policy-that there's just no escaping it. So I learned to appreciate it. Better yet, take advantage of The Tarlock Effect! My way of doing so is easy: when the next brilliant law review idea pops into my head, I read Dan's CV, knowing he probably has said something meaningful on the theme and hoping not everything worth saying. When I find the inevitable-indeed he has thought of it-I read his …

A Blueprint For A New American Trade Policy, Timothy Meyer, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In recent years, it has become clear that American trade policy needs to change. For decades, U.S. policy has reflected the implicit assumption that trade liberalization is beneficial for everyone, with few distributional downsides over time. But this assumption hasn’t been borne out. Instead, decades of trade liberalization have led to a backlash that resulted in both 2016 presidential nominees opposing the Obama Administration’s proposed Trans Pacific Partnership (TPP). And since 2017, President Donald Trump has begun a trade war with China; raised tariffs on the grounds of protecting national security; renegotiated NAFTA, though on terms that do not obviously …

Patenting Around Failure, Sean B. Seymore

Vanderbilt Law School Faculty Publications

Many patents cover inventions that do not work as described. Fingers often point to the U.S. Patent and Trademark Office (Patent Office), which is criticized for doing a poor job of examining patents. But the story is more complicated for at least three reasons. First, from an information standpoint, the Patent Office is at a clear disadvantage because the inventor has little incentive to disclose failure because it might compromise patentability. Second, an inventor is not required to actually make everything that is claimed (or verify that everything that is claimed actually works) before filing a patent application. Third, inventors …

Reframing The Proportionality Principle, Michael A. Newton

Vanderbilt Law School Faculty Publications

Proportionality functions as oneof the most important legal constraints applicable to the conduct of hostilities. In that context, this short essay discusses the commonly encountered misapplications of Cicero's classic sentiment that "salus populwe supremus est lexl . . . silent enim leges inter armes." Rather than serving as a necessary basis for a positive articulation of lawful force as an exception to the norm, jus in bello proportionality delineates the outer boundaries of the commander's appropriate discretion. The mere invocation of jus in bello proportionality cannot become an effective extension of asymmetric combat power by artificially crippling combatant capabilities. This …

Insurance Coverage Policies For Pharmacogenomic And Multi-Gene Testing For Cancer, Ellen Wright Clayton, Christine Y. Lu, Stephanie Loomer, Et Al.

Vanderbilt Law School Faculty Publications

Abstract: Insurance coverage policies are a major determinant of patient access to genomic tests. The objective of this study was to examine differences in coverage policies for guideline-recommended pharmacogenomic tests that inform cancer treatment. We analyzed coverage policies from eight Medicare contractors and 10 private payers for 23 biomarkers (e.g., HER2 and EGFR) and multi-gene tests. We extracted policy coverage and criteria, prior authorization requirements, and an evidence basis for coverage. We reviewed professional society guidelines and their recommendations for use of pharmacogenomic tests. Coverage for KRAS, EGFR, and BRAF tests were common across Medicare contractors and private payers, but …

Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther

Vanderbilt Law School Faculty Publications

In this Symposium issue celebrating his career, Professor Michael Risinger in Leveraging Surprise proposes using "the fundamental emotion of surprise" as a way of measuring belief for purposes of legal proof. More specifically, Professor Risinger argues that we should not conceive of the burden of proof in terms of probabilities such as 51%, 95%, or even "beyond a reasonable doubt." Rather, the legal system should reference the threshold using "words of estimative surprise" -asking jurors how surprised they would be if the fact in question were not true. Toward this goal (and being averse to cardinality), he suggests categories such …

Feminism And The Tournament, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Naomi Bishop, the protagonist of the 2016 film "Equity," is the rare "she-wolf of Wall Street."' At the beginning of the film, Bishop appears on a panel at an alumni event. She explains her career choices to the young women in the audience as follows: I like money. I do. I like numbers. I like negotiating. I love a challenge. Turning a no into a yes. But I really do like money. I like knowing that I have it. I grew up in a house where there was never enough. I was raised by a single mom with four kids. …