Law Commons^™

An Empirical Analysis Of Noncompetition Clauses And Other Restrictive Postemployment Covenants, Randall S. Thomas, Norman D. Bishara, Kenneth J. Martin

Vanderbilt Law Review

Employment contracts for most employees are not publicly available, leaving researchers to speculate about whether they contain postemployment restrictions on employee mobility, and if so, what those provisions look like. Using a large sample of publicly available CEO employment contracts, we are able to examine these noncompetition covenants, including postemployment covenants not to compete ("CNCs" or "noncompetes'), nonsolicitation agreements ("NSAs"), and nondisclosure agreements ("NDAs'). What we found confirms some long-held assumptions about restrictive covenants but also uncovers some surprises.

We begin by discussing why employers use restrictive covenants and examining how the courts have treated them. We then analyze an …

Heuristics, Biases, And Consumer Litigation Funding At The Bargaining Table, Jean Xiao

Vanderbilt Law Review

Imagine three plaintiffs. The first incurred serious back injuries as a passenger in an automobile collision.' The second suffered permanent head injuries as a day laborer in a construction accident. The third experienced a debilitating asthma attack, caused by exposure to floor-cleaning chemicals at her workplace. You now have the chance to advance money to the plaintiff that you believe has the lawsuit with the highest expected value. If the selected plaintiff settles or wins at trial, then you receive the money you gave the plaintiff plus interest that approaches 200% a year. Here is the catch: if the plaintiff …

Original Meaning And The Precedent Fallback, Randy J. Kozel

Vanderbilt Law Review

There is longstanding tension between originalism and judicial precedent. With its resolute focus on deciphering the enacted Constitution, the originalist methodology raises questions about whether judges can legitimately defer to their own pronouncements. Numerous scholars have responded by debating whether and when the Constitution's original meaning should yield to contrary precedent. This Article considers the role of judicial precedent not when it conflicts with the Constitution's original meaning but rather when the consultation of text and historical evidence is insufficient to resolve a case. In those situations, deference to precedent can serve as a fallback rule of constitutional adjudication. The …

Statutory Interpretations And The Therapy Of The Obvious, Edward L. Rubin

Vanderbilt Law Review

Arthur Koestler wrote that "the more original a discovery the more obvious it seems afterward."' The same may be said about theories of law, and specifically about Robert Katzmann's new book, Judging Statutes. Judge Katzmann's approach to statutory interpretation seems so plausible and balanced that it is hard to believe that anyone ever believed anything else. In this particular case, however, there is in fact an "anything else." It is, of course, Justice Antonin Scalia's campaign to displace intentionalist or purposivist approaches to interpretation with what has come to be called "textualism," and his related effort to rule out reliance …

Baptizing O'Brien: Towards Intermediate Protection Of Religiously Motivated Expressive Conduct, Daniel J. Hay

Vanderbilt Law Review

Despite the relative prominence of religious expression in society' and its elevated status in constitutional law, the Supreme Court has struggled to articulate a consistent standard of review for neutral, generally applicable laws that indirectly burden religious expression. Since the late nineteenth century, the Court has vacillated between a highly deferential belief-action dichotomy and a more searching (albeit selectively applied) compelling interest test. Currently, the Court embraces a hybrid categorical-rational basis standard that relies in part upon a highly criticized assumption that the political process will be solicitous of minority religious practice. This retreat to rational basis has subordinated religious …

Proposed Legal Constraints On Private Student Lenders, Mary C. Nicoletta

Vanderbilt Law Review

Many American high school graduates face a difficult choice: They can pursue higher education and the higher earnings it provides, but that means taking on debt that it may take them decades to pay back. Or they can forego a college degree and its attendant debt but be stuck earning lower wages for their entire lives. For many of these students, there is no viable third option. From an early age, many Americans have been told about the value of a college degree-without one, finding a job is difficult and lifetime income is severely depressed. Data relating educational attainment to …

Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost

Vanderbilt Law Review

The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution's text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …