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Articles 1 - 30 of 61
Full-Text Articles in Law
Frizzly Studies: Negotiating The Invisible Lines Of Race, Daniel J. Sharfstein
Frizzly Studies: Negotiating The Invisible Lines Of Race, Daniel J. Sharfstein
Vanderbilt Law School Faculty Publications
In 1927 a Radcliffe graduate student named Caroline Bond Day began researching her anthropology master’s thesis on mixed-race families in the United States. The subject had personal resonance for Day, who was a fixture of colored society in Atlanta and had a complexion that defied easy categorization. To gather data for her thesis, she wrote to dozens of men and women in her large circle of friends, among them civil rights leaders such as W. E. B. Du Bois, John Hope, and Walter White. She asked for exhaustive genealogies, with estimates of blood proportions— Negro, white, Indian—for each ancestor. She …
Changing The Costs: A Rational Choice Perspective On African Americans' Healthcare Consumption Decisions, Nicole Langston
Changing The Costs: A Rational Choice Perspective On African Americans' Healthcare Consumption Decisions, Nicole Langston
Vanderbilt Law School Faculty Publications
This paper makes the case for racial disparities in the consumption of healthcare and advocates for a large-scale cost-benefit change for healthcare practitioners and the African American community to ensure efficient consumption of healthcare by African American patients. Part I explores the history of African Americans and the healthcare system, arguing the history of this interaction fuels many of the present-day decisions not to consume healthcare. Part II explores the current racial differences in healthcare treatment and outcomes for African Americans in order to lay the framework for racially disparate treatment in America's healthcare system. Part III of this paper …
Opting Out Among Women With Elite Education, Joni Hersch
Opting Out Among Women With Elite Education, Joni Hersch
Vanderbilt Law School Faculty Publications
Whether highly educated women are exiting the labor force to care for their children has generated a great deal of media attention, even though academic studies find little evidence of opting out. This paper shows that female graduates of elite institutions have lower labor market involvement than their counterparts from less selective institutions. Although elite graduates are more likely to earn advanced degrees, marry at later ages, and have higher expected earnings, there is little difference in labor market activity by college selectivity among women without children and women who are not married. But the presence of children is associated …
Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall
Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall
Vanderbilt Law School Faculty Publications
Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance …
A Dilemma Of Doctrinal Design: Rights, Identity And The Work-Family Conflict, Lauren Sudeall
A Dilemma Of Doctrinal Design: Rights, Identity And The Work-Family Conflict, Lauren Sudeall
Vanderbilt Law School Faculty Publications
This symposium article suggests that with regard to the work-family conflict, we may have exhausted doctrine’s potential in setting a constitutional foundation for women to be treated as equals in the workplace and requiring that they not be discriminated against in the event that they decide to start a family. For purposes of this piece, those accomplishments constitute the first phase or “first generation” of progress. This article is concerned with how doctrine relates to “second generation” issues arising from the work-family conflict: how to balance work and family once some initial level of equality has been achieved; how to …
Is High-Altitude Mountaineering Russian Roulette?, Edward K. Cheng
Is High-Altitude Mountaineering Russian Roulette?, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Whether the nature of the risks associated with climbing high-altitude (8000 m) peaks is in some sense “controllable” is a longstanding debate in the mountaineering community. Well-known mountaineers David Roberts and Ed Viesturs explore this issue in their recent memoirs. Roberts views the primary risks as “ objective ” or uncontrollable, whereas Viesturs maintains that experience and attention to safety can make a significant difference. This study sheds light on the Roberts-Viesturs debate using a comprehensive dataset of climbing on Nepalese Himalayan peaks. To test whether the data is consistent with a constant failure rate model (Roberts) or a decreasing …
Treating Juveniles Like Juveniles: Getting Rid Of Transfer And Expanded Adult Court Jurisdiction, Christopher Slobogin
Treating Juveniles Like Juveniles: Getting Rid Of Transfer And Expanded Adult Court Jurisdiction, Christopher Slobogin
Vanderbilt Law School Faculty Publications
The number of juveniles transferred to adult court has skyrocketed in the past two decades and has only recently begun to level off. This symposium article argues that, because it wastes resources, damages juveniles, and decreases public safety, transfer should be abolished. It also argues that the diminished culpability rationale that has had much-deserved success at eliminating the juvenile death penalty and mandatory life without parole for juveniles is not likely to have a major impact on the much more prevalent practices of transferring mid- and older-adolescents to adult court and expanding adult court jurisdiction to adolescents; neither the law …
What Should We Do About Multijurisdictional Litigation In M&A Deals?, Randall Thomas
What Should We Do About Multijurisdictional Litigation In M&A Deals?, Randall Thomas
Vanderbilt Law School Faculty Publications
Many M&A transactions attract shareholder litigation challenging the fairness of the economic terms of the deal for the target shareholders. Since the end of the financial crisis, however, there has been a documented increase in the number of jurisdictions in which each individual transaction is attacked. Why has this upsurge in multi-jurisdictional litigation occurred? How significant are its real costs and benefits? And what should we do about it, if anything? This Article first summarizes what we know about these questions and then offers its own viewpoint on how best to respond to multi-jurisdictional litigation. On the one side, the …
Altering Attention In Adjudication, Chris Guthrie, Jeffrey J. Rachinski, Andrew J. Wistrich
Altering Attention In Adjudication, Chris Guthrie, Jeffrey J. Rachinski, Andrew J. Wistrich
Vanderbilt Law School Faculty Publications
Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when …
The First Year Of "Say On Pay" Under Dodd-Frank: An Empirical Analysis And Look Forward, Randall Thomas, James F. Cotter, Alan R. Palmiter
The First Year Of "Say On Pay" Under Dodd-Frank: An Empirical Analysis And Look Forward, Randall Thomas, James F. Cotter, Alan R. Palmiter
Vanderbilt Law School Faculty Publications
Using voting data from the first year of say-on-pay votes under Dodd- Frank, we look at the patterns of shareholder voting in advisory votes on exec- utive pay. Consistent with the more limited say-on-pay voting before Dodd- Frank, we find that shareholders in the first year under Dodd-Frank generally gave broad support to management pay packages. But not all pay packages received strong shareholder support. At some companies, management suf- fered the embarrassment of failed say-on-pay votes-that is, less than fifty per- cent of their company's shareholders voted in favor of the proposal. In particular, we find that poorly performing …
Seeking Genomic Knowledge: The Case For Clinical Restraint, Ellen Wright Clayton, Wylie Burke, Susan Brown Trinidad
Seeking Genomic Knowledge: The Case For Clinical Restraint, Ellen Wright Clayton, Wylie Burke, Susan Brown Trinidad
Vanderbilt Law School Faculty Publications
Genome sequencing technology provides new and promising tests for clinical practice, including whole genome sequencing, which measures an individual's complete DNA sequence, and whole exome sequencing, which measures the DNA for all genes coding for proteins. These technologies make it possible to test for multiple genes in a single test, which increases the efficiency of genetic testing. However, they can also produce large amounts of information that cannot be interpreted or is of limited clinical utility. This additional information could be distracting for patients and clinicians, and contribute to unnecessary healthcare costs. The potential for genomic sequencing to improve care …
Patient Awareness And Approval For An Opt-Out Genomic Biorepository, Ellen Wright Clayton, Kyle B. Brothers, Matthew J. Westbrook, M. Francis Wright, John A. Myers, Daniel R. Morrison, Jennifer L. Madison, Jill M. Pulley
Patient Awareness And Approval For An Opt-Out Genomic Biorepository, Ellen Wright Clayton, Kyle B. Brothers, Matthew J. Westbrook, M. Francis Wright, John A. Myers, Daniel R. Morrison, Jennifer L. Madison, Jill M. Pulley
Vanderbilt Law School Faculty Publications
Aim: In this study, we sought to assess patient awareness and perceptions of an opt-out biorepository. Materials & methods: We conducted exit interviews with adult patients and parents of pediatric patients having their blood drawn as part of their clinical care at Vanderbilt University Medical Center (TN, USA). Results: 32.9% of all patients and parents of pediatric patients report having heard of the opt-out biorepository, while 92.4% approve of this research effort based on a brief description. Awareness that leftover blood could be used for research increased among adult patients during the study period, from 34.3 to 50.0%. Conclusion: These …
Community Control Over Camera Surveillance: A Response To Bennett Capers's "Crime, Surveillance, And Communities", Christopher Slobogin
Community Control Over Camera Surveillance: A Response To Bennett Capers's "Crime, Surveillance, And Communities", Christopher Slobogin
Vanderbilt Law School Faculty Publications
Professor Capers's article helps stimulate thinking about the way in which community views and individual rights interact. In my view, where police propose to conduct surveillance of groups, as occurs with camera surveillance (including the newly developing drone camera systems)', the affected group should be heavily involved in the authorization process. If the surveillance is authorized, care must be taken to ensure that all members of the group are equally affected by it unless and until individualized suspicion, proportionate to the intrusion, develops. That formula ensures that the interests of both the collective and the individual are protected.
Putting Desert In Its Place, Christopher Slobogin, Lauren Brinkley-Rubinstein
Putting Desert In Its Place, Christopher Slobogin, Lauren Brinkley-Rubinstein
Vanderbilt Law School Faculty Publications
Based on an impressive array of studies, Paul Robinson and his coauthors have developed a new theory of criminal justice, which they call empirical desert. The theory asserts that, because people are more likely to be compliant with a legal regime that is perceived to be morally credible, a criminal justice system that tracks empirically derived lay views about how much punishment is deserved is the most efficient way of achieving utilitarian goals, or at least is as efficient at crime prevention as a system that focuses solely on deterrence and incapacitation. This Article describes seven original studies that test …
Rehnquist And Panvasive Searches, Christopher Slobogin
Rehnquist And Panvasive Searches, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In the history of the Supreme Court, William Rehnquist may have been the least friendly justice toward the view that the Fourth Amendment should be read expansively. Even he, however, might have interpreted the amendment to place more restrictions on modern law enforcement techniques than current caselaw does. Relying on a 1974 article authored by Rehnquist, this essay, written for a symposium on Rehnquist and the Fourth Amendment, describes his views on the types of requirements the Fourth Amendment imposes on the police, how decriminalization can protect privacy, and most importantly, why Rehnquist might have been willing to regulate surveillance …
A Pox On Both Your Houses, Suzanna Sherry
A Pox On Both Your Houses, Suzanna Sherry
Vanderbilt Law School Faculty Publications
As Erie Railroad Co. v. Tompkins celebrates its 75th anniversary, it is becoming more apparent that it is on a collision course with itself. The Court keeps trying – and failing – to sort out the tensions within the Erie doctrine and between it and the Federal Rules of Civil Procedure. The Court’s latest Erie decision, Shady Grove, was yet another attempt to separate substance from procedure and navigate the strait between the Rules of Decision Act and the Rules Enabling Act. It was a disaster, in large part because of the internal incoherence of the Erie doctrine itself and …
Don't Answer That!, Suzanna Sherry
Don't Answer That!, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Forget hard cases: "bad" cases make bad law. DaimlerChrysler Corp. v. Bauman, which never should have been filed in a California federal court, has the potential to make very bad law. It is a paradigmatic example of egregious forum shopping that stretches jurisdictional doctrines beyond their limits. And, like other acts of overreaching by overzealous plaintiffs’ attorneys,1 it is likely to come back to haunt not only these plaintiffs but other less manipulative plaintiffs in the future.
Liberty's Safety Net, Suzanna Sherry
Liberty's Safety Net, Suzanna Sherry
Vanderbilt Law School Faculty Publications
I am honored and humbled by the breadth and depth of the responses to my essay on judicial activism, including Richard Epstein's very generous introduction. Each of the contributors has packed a tremendous amount of insight and information into an impossibly limited number of words, and the comments will be extremely useful as I go forward with the project of turning the original essay into a book. My essay might be characterized as a rhetorical call to arms, an undifferentiated embrace of judicial activism. Three of the commentators provide very helpful substantive support for the call to arms, and two …
A Summary Of Why We Need More Judicial Activism, Suzanna Sherry
A Summary Of Why We Need More Judicial Activism, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called “the excess of democracy†is judicial review. Lately, however, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. I argue in this essay that criticizing the Court for its activism is exactly backwards: We need more judicial activism, not less. Courts engaging in judicial review are bound to err …
The Presumption Of Patentability, Sean B. Seymore
The Presumption Of Patentability, Sean B. Seymore
Vanderbilt Law School Faculty Publications
When the Framers of the United States Constitution granted Congress the authority to create a patent system, they certainty did not envision a patent as an a priori entitlement. As it stands now, anyone who files a patent application on anything is entitled to a presumption of patentability. A patent examiner who seeks to challenge patentability faces the dual burden of building a prima facie case of unpatentability and carrying the ultimate burden of proof. Thus, from the outset, an applicant is in a very good position; but the examiner’s limited resources, time pressures, and production goals tip the scales …
Putting Exclusionary Zoning In Its Place: Affordable Housing And Geographical Scale, Christopher Serkin, Leslie Wellington
Putting Exclusionary Zoning In Its Place: Affordable Housing And Geographical Scale, Christopher Serkin, Leslie Wellington
Vanderbilt Law School Faculty Publications
The term “exclusionary zoning” typically describes a particular phenomenon: suburban large-lot zoning that reduces the supply of developable land and drives up housing prices. But exclusionary zoning in its modern form also occurs both within the urban core and region-wide. Exclusionary zoning at the sub-local and regional scales results in property values that fully capitalize the benefits of living in higher-wage regions, and the value of local public goods (like high-quality schools). Lower-income households then cannot meaningfully access those advantages, even if every municipality accommodates its fair share of regional need. The long-standing focus of exclusionary zoning on the content …
Harmonizing Distributed Energy And The Endangered Species Act, J.B. Ruhl
Harmonizing Distributed Energy And The Endangered Species Act, J.B. Ruhl
Vanderbilt Law School Faculty Publications
This Article explores the intersection of utility-scale wind power development and the Endangered Species Act, which thus far has not been as happy a union as one might expect. Part I provides background on how the ESA and wind power have met in policy, permitting, and litigation. Part II then examines whether wind power (and other renewable energy sources) can and should receive a green pass under the ESA given its unquestioned climate change mitigation benefits, concluding that doing so would face a host of legal and policy concerns. Part III then outlines a model for administrative innovation of ESA …
Federal Preemption And Clean Energy Floors, Jim Rossi, Thomas Hutton
Federal Preemption And Clean Energy Floors, Jim Rossi, Thomas Hutton
Vanderbilt Law School Faculty Publications
Federal policies regarding renewable and clean energy often lack clear definition, are incomplete, and are scattered across multiple statutes and agencies. Yet at the same time, recent decisions of both federal agencies and courts have attributed a preemptive effect to federal statutes that threatens to hobble innovation in renewable and clean energy policy by subnational regulators. One consequence of this approach is that most significant policies promoting clean and renewable energy are channeled toward subsidies from the federal fisc, rather than diverse policies undertaken independently by state governments or regional customers and suppliers. This Article argues that, contrary to many …
Policing Public Companies: An Empirical Examination Of The Enforcement Landscape And The Role Played By State Securities Regulators, Amanda Rose, Larry J. Leblanc
Policing Public Companies: An Empirical Examination Of The Enforcement Landscape And The Role Played By State Securities Regulators, Amanda Rose, Larry J. Leblanc
Vanderbilt Law School Faculty Publications
Multiple different securities law enforcers can pursue U.S. public companies for the same misconduct. These enforcers include a variety of federal agencies, class action attorneys, and derivative litigation attorneys, as well as fifty separate state regulators. Scholars and policy makers have increasingly questioned whether the benefits of this multienforcer approach are worth the costs, or whether a more coordinated and streamlined securities enforcement regime might lead to efficiency gains. How serious are these concerns? And what role do state regulators play in the enforcement mix? Whereas the enforcement efforts of the Securities and Exchange Commission and class action lawyers have …
State Enforcement Of National Policy: A Contextual Approach (With Evidence From The Securities Realm), Amanda Rose
State Enforcement Of National Policy: A Contextual Approach (With Evidence From The Securities Realm), Amanda Rose
Vanderbilt Law School Faculty Publications
This Article addresses a topic of contemporary public policy significance: the optimal allocation of law enforcement authority in our federalist system. Proponents of competitive federalism have long argued that assigning concurrent enforcement authority to states and the federal government can lead to redundant expense, policy distortion, and a loss of democratic accountability. A growing literature responds to these claims, trumpeting the benefits of concurrent state-federal enforcement - most notably the potential for state regulators to remedy under-enforcement by captured federal agencies. Both bodies of scholarship are right, but also incomplete. What is missing from this rather polarized debate is a …
How Modern Choice Of Law Helped To Kill The Private Attorney General, Erin O'Connor
How Modern Choice Of Law Helped To Kill The Private Attorney General, Erin O'Connor
Vanderbilt Law School Faculty Publications
It is a great honor to be asked to deliver the second Annual Brainerd Currie Lecture at Mercer University School of Law. Brainerd Currie was an immensely influential law professor who is recognized as the leading scholar of conflict of laws in the twentieth century. Mercer has the distinction of being both Currie's law school alma mater as well as his first academic appointment, probably the two most significant intellectual influences on any scholar. More recently, Mercer has attracted other influential conflicts scholars and cheerleaders of the topic, including Dean Gary Simson, Larry Ribstein, Hal Lewis, and Bruce Posnak, among …
Should New Zealand Adopt Say On Pay?, Randall Thomas, Susan Watson
Should New Zealand Adopt Say On Pay?, Randall Thomas, Susan Watson
Vanderbilt Law School Faculty Publications
No abstract provided.
Translating The Values Of Clinical Pedagogy Across Generations, Alistair E. Newbern
Translating The Values Of Clinical Pedagogy Across Generations, Alistair E. Newbern
Vanderbilt Law School Faculty Publications
Clinical teaching is a Baby Boomer. After an extended infancy, it came of age in the 1960s. It challenged the entrenched isolation and aloofness of law school by questioning the very methods by which law is taught. Channeling the Boomers' cultural tenets of dismantling hierarchy, fostering collaboration, and advocating for social change, it shook off legal academia's suit and tie and rolled up its sleeves, bringing the community into the classroom and putting the university to work. These Boomer-era values are reflected in clinical teaching's enduring core principles of non-directive teaching, reflective practice, close and immediate supervision, learning from experience, …
Preemption Under The Controlled Substances Act, Robert A. Mikos
Preemption Under The Controlled Substances Act, Robert A. Mikos
Vanderbilt Law School Faculty Publications
States are conducting increasingly bold experiments with their marijuana laws, but questions linger over their authority to deviate from the federal Controlled Substances Act. The CSA bans marijuana outright, and commentators have assumed that Congress sought to preempt all state laws that might somehow conflict with the CSA. Under the preemption rule now in vogue, state marijuana reforms are preempted if they either require someone to violate the CSA or, more controversially, if they pose an obstacle to Congress’s objective of eradicating marijuana. Seeking to avoid such conflicts, government officials have scuttled a number of important state marijuana reforms. This …
Enforcing Effective Assistance After Martinez, Nancy J. King
Enforcing Effective Assistance After Martinez, Nancy J. King
Vanderbilt Law School Faculty Publications
This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the …