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Apology And Thick Trust: What Spouse Abusers And Negligent Doctors Might Have In Common, Erin O'Connor Jan 2004

Apology And Thick Trust: What Spouse Abusers And Negligent Doctors Might Have In Common, Erin O'Connor

Vanderbilt Law School Faculty Publications

As apology advocates have previously emphasized, much of the civil litigation that clogs court dockets in America today could be avoided with a simple heartfelt apology. Although sometimes difficult to offer, these expressions of remorse are profoundly powerful and valuable for humans as social animals. Nevertheless, apologies can be problematic. This Article used evolutionary theory as a tool to explore the costs of apology in two areas-spouse abuse and medical malpractice-to suggest that excessive victim forgiveness can, in some contexts, cast doubt on the effectiveness of a purely private litigation system for creating appropriate behavioral incentives. It also explored ways …


Induced Litigation, Tracey E. George, Chris Guthrie Jan 2004

Induced Litigation, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

If "justice delayed" is "justice denied,"justice is often denied in American courts. Delay in the courts is a "ceaseless and unremitting problem of modem civil justice" that "has an irreparable effect on both plaintiffs and defendants." To combat this seemingly intractable problem, judges and court administrators routinely clamor for additional judicial resources to enable them to manage their dockets more "effectively and efficiently." By building new courthouses and adding new judgeships, a court should be able to manage its caseload more efficiently. Trial judges should be able to hold motion hearings, host settlement conferences, and conduct trials in a timely …


The Denominator Blindness Effect: Accident Frequencies And The Misjudgment Of Recklessness, W. Kip Viscusi Jan 2004

The Denominator Blindness Effect: Accident Frequencies And The Misjudgment Of Recklessness, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

People seriously misjudge accident risks because they routinely neglect relevant information about exposure. Such risk judgments affect both personal and public policy decisions, e.g., choice of a transport mode, but also play a vital role in legal determinations, such as assessments of recklessness. Experimental evidence for a sample of 422 jury-eligible adults indicates that people incorporate information on the number of accidents, which is the numerator of the risk frequency calculation. However, they appear blind to information on exposure, such as the scale of a firm's operations, which is the risk frequency denominator. Hence, the actual observed accident frequency of …


Past, Present, And Future Trends Of The Endangered Species Act, J.B. Ruhl Jan 2004

Past, Present, And Future Trends Of The Endangered Species Act, J.B. Ruhl

Vanderbilt Law School Faculty Publications

this article is designed to convince readers that the past, present, and future trends of the ESA are all the same. To provide context, Part I presents a brief overview of the structure of the statute and the kinds of decisions that must be made under it. Part II delves more deeply into each of the topics covered in the NR&E issues, eight in all, providing in each case the necessary legal background followed by a discussion of how the topic played out in the two NR&E issues. Finally, I conclude with a brief summary of my own perspectives on …


The President's Power To Detain "Enemy Combatants": Modern Lessons From Mr. Madison's Forgotten War, Ingrid Wuerth Jan 2004

The President's Power To Detain "Enemy Combatants": Modern Lessons From Mr. Madison's Forgotten War, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed "Mr. Madison's War" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war …


Other Disciplines, Methodologies, And Countries: Studying Courts And Crisis, Tracey E. George Jan 2004

Other Disciplines, Methodologies, And Countries: Studying Courts And Crisis, Tracey E. George

Vanderbilt Law School Faculty Publications

How do governments and their citizens respond to fear and risk in times of crisis? Dr. Lee Epstein and Professor Christina Wells, in papers presented on the final symposium panel focus in particular on the Supreme Court's response to government encroachment on individual liberties during a national emergency. Their work is made particularly timely by three Supreme Court decisions this past term. In this essay, I begin by framing the issue very briefly. I then argue that understanding this issue requires scholars to follow Epstein and Wells by looking to other disciplines, methodologies, and countries.


Hard Cases Make Good Judges, Suzanna Sherry Jan 2004

Hard Cases Make Good Judges, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Not every constitutional case requires recourse to first principles, and indeed, most require more subtlety than such recourse can produce. The Rehnquist Court's free speech cases provide an example of the benefits of a more nuanced and pragmatist approach in the context of a mature jurisprudence. Rigid tiers of scrutiny are simply not flexible enough to accommodate both the legitimate goals of the legislature and the need to guard against illicit attempts at pure censorship of unpopular ideas. Some form of balancing-whether identified as such or simply evident in the application of intermediate scrutiny-is necessary to avoid either too much …


Principles Of Influence In Negotiation, Chris Guthrie Jan 2004

Principles Of Influence In Negotiation, Chris Guthrie

Vanderbilt Law School Faculty Publications

Negotiation is often viewed as an alternative to adjudication. In fact, however, negotiation and adjudication may be more alike than different because each is a process of persuasion. Both in the courtroom and at the bargaining table, the lawyer's primary task is to persuade someone other than her own client that her client's positions, interests, and perspectives should be honored. Despite this apparent similarity, persuasion operates differently in adjudication and negotiation because the lawyer seeks to influence a different party in each process. In adjudication, the lawyer seeks primarily to persuade the judge or jury hearing the case. The judge …


Induced Litigation, Chris Guthrie, Tracey E. George Jan 2004

Induced Litigation, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

If "justice delayed" is "justice denied,"justice is often denied in American courts. Delay in the courts is a "ceaseless and unremitting problem of modem civil justice" that "has an irreparable effect on both plaintiffs and defendants." To combat this seemingly intractable problem, judges and court administrators routinely clamor for additional judicial resources to enable them to manage their dockets more "effectively and efficiently." By building new courthouses and adding new judgeships, a court should be able to manage its caseload more efficiently. Trial judges should be able to hold motion hearings, host settlement conferences, and conduct trials in a timely …


Heuristics And Biases At The Bargaining Table, Chris Guthrie, Russell Korobkin Jan 2004

Heuristics And Biases At The Bargaining Table, Chris Guthrie, Russell Korobkin

Vanderbilt Law School Faculty Publications

In this essay, written for a symposium on The Emerging Interdisciplinary Cannon of Negotiation, we examine the role of heuristics in negotiation from two vantage points. First, we identify the way in which some common heuristics are likely to influence the negotiator's decision-making processes. Namely, we discuss anchoring and adjustment, availability, self-serving evaluations, framing, the status quo bias, contrast effects, and reactive devaluation. Understanding these common heuristics and how they can cause negotiators' judgments and choices to deviate from the normative model can enable negotiators to reorient their behavior so it more closely aligns with the normative model or, alternatively, …


The Impact Of The Impact Bias On Negotiation, Chris Guthrie, David Sally Jan 2004

The Impact Of The Impact Bias On Negotiation, Chris Guthrie, David Sally

Vanderbilt Law School Faculty Publications

The theory of principled or problem-solving negotiation assumes that negotiators are able to identify their interests (or what they really want) in a negotiation. Recent research on effective forecasting calls this assumption into question. In this paper, which will appear in a forthcoming symposium issue of the Marquette Law Review devoted to the Emerging Interdisciplinary Canon of Negotiation, we explore the impact of this research on negotiation and lawyering.


Beyond Blakely, Nancy J. King, Susan Riva Klein Jan 2004

Beyond Blakely, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

Federal criminal sentencing in the wake of Blakely v. Washington is, to put it charitably, a mess. In holding that Blakely's sentence under the Washington State Sentencing Guidelines was imposed in a manner inconsistent with the Sixth Amendment right to a jury trial, the decision threatens the operation of the Federal Sentencing Guidelines and the presumptive sentencing systems in fourteen states. In Parts I and II of this article, we address how Blakely has affected the Federal Sentencing Guidelines, and how assistant U.S. attorneys, federal public defenders, and district and appellate court judges might proceed in a post-Blakely world. In …


Insights From Cognitive Psychology, Chris Guthrie Jan 2004

Insights From Cognitive Psychology, Chris Guthrie

Vanderbilt Law School Faculty Publications

My goal in this paper is to explore cognitive psychology's place in the dispute resolution field. To do so, I first look back and then look forward. Looking back, I identify the five insights from cognitive psychology that have had the biggest impact on my own dispute resolution teaching and scholarship. Looking forward, I identify my five hopes for the future of cognitive psychology in the dispute resolution field.


Reforming Corporate Governance: What History Can Teach Us, Margaret M. Blair Jan 2004

Reforming Corporate Governance: What History Can Teach Us, Margaret M. Blair

Vanderbilt Law School Faculty Publications

In this Article, I turn to the history of corporate law for insight into the role that the corporate form plays in the organization of business enterprises. I then draw implications from this history for thinking about circumstances and situations in which corporate directors should have unimpeded control over business decisions, versus situations in which shareholders should have more input and control over business decisions. In Part I, I review historical evidence of the rapid growth in demand for the corporate form to organize businesses in the United States during the early nineteenth century. I compare the law that governed …


How Different Is Death? Jury Sentencing In Capital And Non-Capital Cases Compared, Nancy J. King Jan 2004

How Different Is Death? Jury Sentencing In Capital And Non-Capital Cases Compared, Nancy J. King

Vanderbilt Law School Faculty Publications

Drawing upon a recent study of felony jury sentencing in Kentucky, Virginia, and Arkansas, this essay highlights some of the similarities and differences between jury sentencing in capital cases and jury sentencing in non-capital cases. Unlike jury sentencing in capital cases, jury sentencing in non-capital cases includes functional differentials in judge and jury options for sentencing, and fewer controls on arbitrary decision-making. Jury sentencing in both contexts shares the potential for reluctance on the part of elected judges to reduce jury sentences, information gaps on the part of jurors in setting sentences, and, above all, service as a tool in …


Felony Jury Sentencing In Practice: A Three-State Study, Nancy J. King, Rosevelt L. Noble Jan 2004

Felony Jury Sentencing In Practice: A Three-State Study, Nancy J. King, Rosevelt L. Noble

Vanderbilt Law School Faculty Publications

Jury sentencing in non-capital cases is one of the least understood procedures in contemporary American criminal justice. This Article looks beyond idealized visions of jury sentencing to examine for the first time how felony jury sentencing actually operates in three different states - Kentucky, Virginia, and Arkansas. Dozens of interviews with prosecutors, defenders, and judges, as well as an analysis of state sentencing data, reveal that this neglected corner of state criminal justice provides a unique window through which one can observe some of the most fundamental forces operating in criminal adjudication today. It turns out that jury sentencing in …


Judicial Review Of Agency Inaction: An Arbitrariness Approach, Lisa Schultz Bressman Jan 2004

Judicial Review Of Agency Inaction: An Arbitrariness Approach, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

This Article contends that the current law governing judicial review of agency inaction, though consistent with the prevailing theory of agency legitimacy, is inconsistent with the founding principles of the administrative state. The Supreme Court's reluctance to allow judicial review of agency inaction reflects the popular view that agency decision-making should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this view of agency decision-making reject the Court's treatment of agency inaction. Yet these scholars have failed to appreciate the reason. The reason is that the founding principles of the …


Endangered Species Act Innovations In The Post-Babbittonian Era--Are There Any?, J.B. Ruhl Jan 2004

Endangered Species Act Innovations In The Post-Babbittonian Era--Are There Any?, J.B. Ruhl

Vanderbilt Law School Faculty Publications

One of the mysteries of environmental policy in the Bush Administration will be how and why it squandered an opportunity to continue market-based administrative reforms of the Endangered Species Act begun, ironically, in the Clinton Administration under the direction of then Secretary of the Interior Bruce Babbitt. This article traces the momentum built for reform in the Babbittonian era and examines what has not happened since then.


Understanding Settlement In Damages (And Beyond), Chris Guthrie Jan 2004

Understanding Settlement In Damages (And Beyond), Chris Guthrie

Vanderbilt Law School Faculty Publications

For all of the ways in which the Sabia case is extraordinary, its outcome--settlement--is decidedly ordinary. In most civil litigation, as in the Sabias' litigation against Dr. Maryellen Humes and Norwalk Hospital, "[s]ettlement is where the action is." Roughly two-thirds of all cases settle (and most of the rest are resolved through motions). Why do most cases settle? Given the costs, delay, and unpleasantness of the litigation process, why do any cases go to trial? To address these questions--that is, to explain why most cases settle as well as why some cases "fail" to settle and result in trial--legal academics …


The Blockbuster Punitive Damages Awards, W. Kip Viscusi Jan 2004

The Blockbuster Punitive Damages Awards, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This paper provides an analysis of 64 punitive damages awards of at least $100 million. Based on an inventory of these cases, there is evidence that these blockbuster awards are highly concentrated geographically, as two states account for 27 of the 64 awards. The awards also have been rising substantially over time, with the majority of these blockbuster awards taking place since 1999. An assessment of the current status of the blockbuster punitive damages awards indicates that most of these awards have been appealed, but the reversal of these punitive damages awards is the exception rather than the rule. Many …


From Smokestack To Suv: The Individual As Regulated Entity In The New Era Of Environmental Law, Michael P. Vandenbergh Jan 2004

From Smokestack To Suv: The Individual As Regulated Entity In The New Era Of Environmental Law, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

A debate between advocates of command and control regulation and advocates of economic incentives has dominated environmental legal scholarship over the last three decades. Both sides in the debate implicitly embrace the premise that regulatory measures should be directed almost exclusively at large industrial polluters. This Article asserts that for many pollutants the premise is no longer supportable, and that much of the focus of regulation in the future should turn to individuals and households. Examining a wide range of empirical data, the Article presents the first profile of individual behavior as a source of pollution. The profile demonstrates that …


Law, Evolution, And The Brain: Applications And Open Questions, Owen D. Jones Jan 2004

Law, Evolution, And The Brain: Applications And Open Questions, Owen D. Jones

Vanderbilt Law School Faculty Publications

This essay discusses several issues at the intersection of law and brain science. If focuses principally on ways in which an improved understanding of how evolutionary processes affect brain function and human behavior may improve law's ability to regulate behavior. It explores sample uses of such "evolutionary analysis in law" and also raises questions about how that analysis might be improved in the future. Among the discussed uses are: 1) clarifying cost-benefit analyses; 2) providing theoretical foundation and potential predictive power; 3) assessing comparative effectiveness of legal strategies; and 4) revealing deep patterns in legal architecture. Throughout, the essay emphasizes …


Warning: Labeling Constitutions May Be Hazardous To Your Regime, Suzanna Sherry Jan 2004

Warning: Labeling Constitutions May Be Hazardous To Your Regime, Suzanna Sherry

Vanderbilt Law School Faculty Publications

What do the following cases have in common? In Boy Scouts of America v. Dale,2 the Court upheld the right of a private organization to ignore a generally applicable state statute prohibiting discrimination on the basis of sexual orientation. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,3 the Court upheld the right of parade organizers to exclude gay-rights banners. In Zelman v. Simmons-Harri4s , the Court permitted government funding of religious schools through vouchers issued to low-income parents. And in Rosenberger v. Rector and Visitors of the University of Virginia, the Court required state funding of the …


What's Law Got To Do With It?, Suzanna Sherry Jan 2004

What's Law Got To Do With It?, Suzanna Sherry

Vanderbilt Law School Faculty Publications

The authors of this fascinating study modestly disclaim its significance, yet suggest that the results prove their model a success. As a legal expert, I have a rather different perspective on the results. I look at the numbers holistically, not statistically. And what I see tells a different story--if it tells any story at all.


The Battle Over Endangered Species Act Methodology, J.B. Ruhl Jan 2004

The Battle Over Endangered Species Act Methodology, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The substantive contours of the Endangered Species Act (ESA) have been largely worked out for quite some time. Starting in the mid-1990s, however, opponents of Fish and Wildlife Service and National Marine Fisheries Service decisions realized that the methodological contours of the ESA were not nearly as settled as their substantive kin. Industry and environmental interests alike appreciate that how these methodological rules get worked out could revolutionize the ESA for decades to come, and during the 1990s they opened the debate over ESA methodology and have been going strong at it ever since. This Article explores the breadth and …


Punitive Damages: How Judges And Juries Perform, Joni Hersch, W. Kip Viscusi Jan 2004

Punitive Damages: How Judges And Juries Perform, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This paper presents the first empirical anatysis that demonstrates that juries differ from judges in awarding punitive damages. Our review of punitive damages awards of $100 million or more identified 63 such awards, of which juries made 95 percent. These jury awards are highly unpredictable and are not significantly correlated with compensatory damages. Using data on jury and bench verdicts from the Civil Justice Survey of State Courts, 1996, we find that juries are significantly more likely to award punitive damages than are judges and award higher levels of punitive damages. Jury awards are also less strongly related to compensatory …


Risk Realization, Emotion, And Policy Making, Chris Guthrie Jan 2004

Risk Realization, Emotion, And Policy Making, Chris Guthrie

Vanderbilt Law School Faculty Publications

In their study of terrorism and SARS, Professor Feigenson and his colleagues report "significant positive correlations between people's risk perceptions and their negative affect." In their review of the judgment and decision-making literature, Professor Slovic and his colleagues document the interplay between reason and emotion in assessing risk. And in the context of a soldier's concerns for himself and his family, Professor Moran provides a powerful narrative of fear. But what happens when such threats are actually realized? Do we accurately predict the emotional impact of such events? Or are there meaningful and predictable differences between the feelings we forecast …


United States' Trade Policy And The Exportation Of United States' Culture, Beverly I. Moran Jan 2004

United States' Trade Policy And The Exportation Of United States' Culture, Beverly I. Moran

Vanderbilt Law School Faculty Publications

The United States Trade Representative and the policies that he (or she) attempt to impose on our trading partners have the serious and perhaps unintended effect of destroying local culture particularly in the area of film production.


Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie Jan 2004

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie

Vanderbilt Law School Faculty Publications

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …


Taking Adaptive Management Seriously: A Case Study Of The Endangered Species Act, J.B. Ruhl Jan 2004

Taking Adaptive Management Seriously: A Case Study Of The Endangered Species Act, J.B. Ruhl

Vanderbilt Law School Faculty Publications

If one compares the way in which the ESA was implemented in 1982 to the way it is today, the list of differences would far outweigh the similarities. Indeed, the ESA has been transformed so much through administrative reform toward the ecosystem management model, I have dared to suggest elsewhere that it has earned the seal of eco-pragmatism. In this Article, I explore the related question such an assertion necessarily begs-has the ESA also earned the seal of adaptive management?... Part I of the Article provides the legal and ecological background necessary to appreciate the need for ecosystem management, and …