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Articles 1 - 30 of 62
Full-Text Articles in Law
Group-Conflict Resolution: Sources Of Resistance To Reconciliation, Erin O'Connor
Group-Conflict Resolution: Sources Of Resistance To Reconciliation, Erin O'Connor
Vanderbilt Law School Faculty Publications
In the past few years a number of scholars in a variety of intellectual disciplines have contributed to a better understanding of dyadic conflicts and their resolution. In particular, sociologists, psychologists, anthropologists, lawyers, and others have explored the dynamics of apology and its role in deescalating disputes and promoting forgiveness and reconciliation. Furthermore, we have a better understanding today of the benefits to individuals from forgiveness and reconciliation. Victims who are able to forgive their transgressors have better psychological and physical health and lead richer lives. Because lawyers tend to focus their attentions on legal disputes, a growing body of …
Will Quants Rule The (Legal) World?, Edward K. Cheng
Will Quants Rule The (Legal) World?, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Professor Ian Ayres, in his new book, Super Crunchers, details the brave new world of statistical prediction and how it has already begun to affect our lives. For years, academic researchers have known about the considerable and at times surprising advantages of statistical models over the considered judgments of experienced clinicians and experts. Today, these models are emerging all over the landscape. Whether the field is wine, baseball, medicine, or consumer relations, they are vying against traditional experts for control over how we make decisions. For the legal system, the take-home of Ayres's book and the examples he describes is …
Law, Statistics, And The Reference Class Problem, Edward K. Cheng
Law, Statistics, And The Reference Class Problem, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Statistical data are powerful, if not crucial, pieces of evidence in the courtroom. Whether one is trying to demonstrate the rarity of a DNA profile, estimate the value of damaged property, or determine the likelihood that a criminal defendant will recidivate, statistics often have an important role to play. Statistics, however, raise a number of serious challenges for the legal system, including concerns that they are difficult to understand, are given too much deference from juries, or are easily manipulated by the parties' experts. In this preview piece, I address one of these challenges, known as the "reference class problem," …
The Reviewability Of The President's Statutory Powers, Kevin M. Stack
The Reviewability Of The President's Statutory Powers, Kevin M. Stack
Vanderbilt Law School Faculty Publications
This Article argues that longstanding doctrines that exclude judicial review of the determinations or findings the President makes as conditions for invoking statutory powers should be replaced. These doctrines are inconsistent with the fundamental constitutional commitment to reviewing whether federal officials act with legal authorization. Where a statute grants power conditioned upon an official making a determination that certain conditions obtain - as statutes that grant power to the President often do - review of whether that power is validly exercised requires review of the determinations the official makes to invoke the power. Review of those determinations is commonplace with …
Introduction To The Symposium On The Model Penal Code's Sentencing Proposals, Christopher Slobogin
Introduction To The Symposium On The Model Penal Code's Sentencing Proposals, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Begun in the 1950s, the drafting of the Model Penal Code (the Code) differed from the typical American Law Institute (AL) "restatement" of the law project because it was an explicit attempt to provide a model statute that would advance doctrine and practice rather than merely describe it. Scores of lawyers, judges, academics and policymakers actively participated in the process of devising the Code. Their efforts paid off. As Gerard Lynch wrote in 1998, "[t]he Model Penal Code is among the most successful academic law reform projects ever attempted.", During the 1960s and 1970s, well over half the states revamped …
Justice Ginsburg's Gradualism In Criminal Procedure, Christopher Slobogin
Justice Ginsburg's Gradualism In Criminal Procedure, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article, written for a symposium analyzing Justice Ginsburg’s jurisprudence on the 15th anniversary of her tenure on the Supreme Court, is the first sustained look at her views on criminal procedure issues (search and seizure, interrogation, the right to counsel, trial rights, sentencing procedures, and the criminal appeals and collateral review processes). Not surprisingly, given her ACLU background, she tends to vote in favor of criminal defendants’ positions more often than most other justices, and she is the most likely to do so since Chief Justice Roberts joined the Court. At the same time, the gradualist tendencies that she …
Mental Illness And Self-Representation: Faretta, Godinez And Edwards, Christopher Slobogin
Mental Illness And Self-Representation: Faretta, Godinez And Edwards, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In the recent decision of Indiana v. Edwards the Supreme Court held that the right to represent oneself may be denied to defendants who are competent to stand trial if they "still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Edwards was a surprise, given the Court's holding 15 years earlier in Godinez v. Moran that Nevada courts did not err when they permitted a mentally ill person who had been found competent to stand trial to waive the right to counsel, plead guilty and waive the presentation of …
Putting The Law Back In Constitutional Law, Suzanna Sherry
Putting The Law Back In Constitutional Law, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Taking a cue from Professor Laurence Tribe's decision to abandon the third edition of his constitutional law treatise, the organizers of this symposium have asked us to address whether constitutional law is in crisis. I am agnostic on that question, although I think that there has been a turn in the wrong direction. But if there is a crisis, I know who to blame. If constitutional law is in crisis, it is our fault. The legal academy has erased the distinction between law and politics, used its expertise for political advantage rather than for elucidation, and mis-educated a generation of …
Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe
Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe
Vanderbilt Law School Faculty Publications
Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling interest test to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself but today a new cutting-edge issue is emerging: whether the Act's extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should …
Keeping The Endangered Species Act Relevant, J.B. Ruhl
Keeping The Endangered Species Act Relevant, J.B. Ruhl
Vanderbilt Law School Faculty Publications
The Endangered Species Act (ESA) has long been the workhorse of species protection in contexts for which a species-specific approach can effectively be employed to address discrete human-induced threats that have straightforward causal connections to the decline of a species, such as clearing of occupied habitat for development or damming of a river. Its resounding success there, however, has led to the misperception that it can duplicate that record anywhere and for any reason a species is at risk. Yet, is the statute adaptable to the sprawling, sometimes global, phenomena that are wearing down our environmental fabric on landscape scales …
Does Private Equity Create Wealth? The Effects Of Private Equity And Derivatives On Corporate Governance, Randall Thomas, Ronald W. Masulis
Does Private Equity Create Wealth? The Effects Of Private Equity And Derivatives On Corporate Governance, Randall Thomas, Ronald W. Masulis
Vanderbilt Law School Faculty Publications
Private equity has reaped large rewards in recent years. We claim that one major reason for this success is due to the corporate governance advantages of private equity over the public corporation. We argue that the development of substantial derivative contracts and trading has significantly weakened the governance of public corporations and has created a need for financially sophisticated directors and much closer supervision of management. The private equity model delivers these benefits and allows corporations to be better governed, creating wealth gains for investors.
The Tangled Web Of Ugc: Making Copyright Sense Of User-Generated Content, Daniel J. Gervais
The Tangled Web Of Ugc: Making Copyright Sense Of User-Generated Content, Daniel J. Gervais
Vanderbilt Law School Faculty Publications
Even as a mere conceptual cloud, the term "user-generated content" is useful to discuss the societal shifts in content creation brought about by the participative web and perhaps best epitomized by the remix phenomenon. This Article considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation-the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work …
Remaking The United States Supreme Court In The Courts' Of Appeals Image, Tracey E. George, Chris Guthrie
Remaking The United States Supreme Court In The Courts' Of Appeals Image, Tracey E. George, Chris Guthrie
Vanderbilt Law School Faculty Publications
We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decision making, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decision making capacity but also improve the Court's composition, competence, and functioning.
The Regulation Of Sovereign Wealth Funds: The Virtues Of Going Slow, Amanda Rose, Richard A. Epstein
The Regulation Of Sovereign Wealth Funds: The Virtues Of Going Slow, Amanda Rose, Richard A. Epstein
Vanderbilt Law School Faculty Publications
Any symposium on private-equity firms and the going private phenomenon would be incomplete without discussion of Sovereign Wealth Funds (SWFs). These government owned investment vehicles have and will continue to play an important role in the going private phenomenon. SWFs have not only helped fuel that phenomenon through their participation as limited partners in private-equity funds and hedge funds, but their massive capital infusions into ailing financial institutions and private-equity firms in the wake of the subprime mortgage crisis may, in a very real sense, save it. It is not hyperbolic to suggest that the future of private equity - …
The Trojan Horse Of Electric Power Transmission Line Siting Authority, Jim Rossi
The Trojan Horse Of Electric Power Transmission Line Siting Authority, Jim Rossi
Vanderbilt Law School Faculty Publications
Reform proposals pending in the U.S. Congress would increase federal and regional power to preempt states in siting transmission lines on order to allow the development of a high-votage transmission grid for renewable resources. This Article recognizes the inadequacy of existing state siting authority over transmission, but takes a skeptical approach to expanding federal siting jurisdiction as a solution to the problem and argues that the over-attention to transmission line siting authority is a bit of a Trojan horse in the climate change debate. Specifically, because it ignores the more difficult issues of how the costs and benefits of transmission …
Some Observations On The Future Of U.S. Military Commissions, Michael A. Newton
Some Observations On The Future Of U.S. Military Commissions, Michael A. Newton
Vanderbilt Law School Faculty Publications
The Obama Administration confronts many of the same practical and legal complexities that interagency experts debated in the fall of 2001. Military commissions remain a valid, if unwieldy, tool to be used at the discretion of a Commander-in-Chief. Refinement of the commission procedures has consumed thousands of legal hours within the Department of Defense, as well as a significant share of the Supreme Court docket. In practice, the military commissions have not been the charade of justice created by an overpowerful and unaccountable chief executive that critics predicted. In light of the permissive structure of U.S. statutes and the framework …
Soft Law As Delegation, Timothy Meyer
Soft Law As Delegation, Timothy Meyer
Vanderbilt Law School Faculty Publications
This article examines one of the most important trends in international legal governance since the end of the Second World War: the rise of "soft law," or legally non-binding instruments. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as credible as possible, to ensure optimal incentives to perform. It is therefore odd that …
In Family Law, Love's Got A Lot To Do With It: A Response To Philip Shaver, Terry A. Maroney
In Family Law, Love's Got A Lot To Do With It: A Response To Philip Shaver, Terry A. Maroney
Vanderbilt Law School Faculty Publications
In a contribution to this Symposium on Law and Emotion: Re-Envisioning Family Law, Phillip Shaver and his co-authors succinctly encapsulate contemporary psychological theory on interpersonal attachment -- primarily parent-child attachment and its role in creating lifelong attachment patterns -- and seek to outline the relevance of such research for both social policy and law. This Comment demonstrates that many areas of family law already seek to cultivate and reward attachment. But attachment is not and cannot be the sole-or even, perhaps, the most important-factor driving most legal determinations. Recognizing the importance of secure attachment does not answer difficult questions about …
The False Promise Of Adolescent Brain Science In Juvenile Justice, Terry A. Maroney
The False Promise Of Adolescent Brain Science In Juvenile Justice, Terry A. Maroney
Vanderbilt Law School Faculty Publications
Recent scientific findings about the developing teen brain have both captured public attention and begun to percolate through legal theory and practice. Indeed, many believe that developmental neuroscience contributed to the U.S. Supreme Court’s elimination of the juvenile death penalty in Roper v. Simmons. Post-Roper, scholars assert that the developmentally normal attributes of the teen brain counsel differential treatment of young offenders, and advocates increasingly make such arguments before the courts. The success of any theory, though, depends in large part on implementation, and challenges that emerge through implementation illuminate problematic aspects of the theory. This Article tests the legal …
Emotional Common Sense As Constitutional Law, Terry A. Maroney
Emotional Common Sense As Constitutional Law, Terry A. Maroney
Vanderbilt Law School Faculty Publications
In Gonzales v. Carhart the Supreme Court invoked post-abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about the emotions. A species of common sense, it seems obvious and universal to …
Rethinking The Federal Role In State Criminal Justice, Nancy J. King, Joseph L. Hoffmann
Rethinking The Federal Role In State Criminal Justice, Nancy J. King, Joseph L. Hoffmann
Vanderbilt Law School Faculty Publications
This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that …
Mr. Sunstein's Neighborhood: Won't You Be Our Co-Author?, Tracey E. George, Paul H. Edelman
Mr. Sunstein's Neighborhood: Won't You Be Our Co-Author?, Tracey E. George, Paul H. Edelman
Vanderbilt Law School Faculty Publications
In Six Degrees of Cass Sunstein: Collaboration Networks in Legal Scholarship (11 Green Bag 2d 19 (2007)) we began the study of the collaboration network in legal academia. We concluded that the central figure in the network was Professor Cass Sunstein of Harvard Law School and proceeded to catalogue all of his myriad co-authors (so-called Sunstein 1's) and their co-authors (Sunstein 2's). In this small note we update that catalogue as of August 2008 and take the opportunity to reflect on this project and its methodology.
Environmental Law, Rachael Anderson-Watts, Naeha Dixit, Christopher J. Dunsky
Environmental Law, Rachael Anderson-Watts, Naeha Dixit, Christopher J. Dunsky
Vanderbilt Law School Faculty Publications
The decisions of the Michigan Supreme Court and the Michigan Court of Appeals during the Survey period, May 23, 2007 to July 30, 2008, did not dramatically change the course of environmental law in Michigan, nor did they contain any major surprises. The state Supreme Court's decision in Michigan Citizens for Water Conservation v. Nestl Waters North America, Inc. is the most significant decision in the Survey period because it held that plaintiffs in Michigan Environmental Protection Act (MEPA) cases must now satisfy federal standing requirements. Although the Nestl9 decision may make it more difficult for ordinary citizens to use …
Of Silos And Constellations: Comparing Notions Of Originality In Copyright Law, Daniel J. Gervais, Elizabeth F. Judge
Of Silos And Constellations: Comparing Notions Of Originality In Copyright Law, Daniel J. Gervais, Elizabeth F. Judge
Vanderbilt Law School Faculty Publications
Originality is a central theme in the efforts to understand human evolution, thinking, innovation, and creativity. Artists strive to be "original," however the term is understood by each of them. It is also one of the major concepts in copyright law. This paper considers the evolution of the notion of originality since 2002 (when one of the coauthors published an article entitled Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law) and continues the analysis, in particular whether the notion of "creative choices," which seems to have substantial normative heft in several jurisdictions, is optimal …
The Constitutionality Of State And Local Laws Targeting Immigrants, Karla M. Mckanders
The Constitutionality Of State And Local Laws Targeting Immigrants, Karla M. Mckanders
Vanderbilt Law School Faculty Publications
This paper addresses current immigration issues across the country, specifically in Arkansas, and how lawyers can seek to achieve social justice for immigrants. There currently has been a lot of activity and discussion surrounding state and local laws targeting immigrants. Central to this discussion has been whether states and localities are constitutionally permitted to enact immigration laws and whether state and local actions upset the current immigration system and how, if at all, their actions affect documented and undocumented immigrants' rights. When states and localities pass immigration related laws, the main concern is whether federal, state or local governments are …
Mapping The American Shareholder Litigation Experience, Randall Thomas, James D. Cox
Mapping The American Shareholder Litigation Experience, Randall Thomas, James D. Cox
Vanderbilt Law School Faculty Publications
In this paper, we provide an overview of the most significant empirical research that has been conducted in recent years on the public and private enforcement of the federal securities laws. The existing studies of the U.S. enforcement system provide a rich tapestry for assessing the value of enforcement, both private and public, as well as market penalties for fraudulent financial reporting practices. The relevance of the U.S. experience is made broader by the introduction through the PSLRA in late 1995 of new procedures for the conduct of private suits and the numerous efforts to evaluate the effects of those …
Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman
Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman
Vanderbilt Law School Faculty Publications
The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false because Congress is unlikely to think about the delegation of interpretive authority at all, or in the way that the Court imagines. They also contend that the fiction is fraudulent because the Court does actually care about whether Congress intends to delegate interpretive authority in any particular instance, but applies a presumption triggered by statutory ambiguity or a particularized analysis involving factors unrelated to congressional delegation. In …
Prediction Markets And Law: A Skeptical Account, Rebecca Haw Allensworth
Prediction Markets And Law: A Skeptical Account, Rebecca Haw Allensworth
Vanderbilt Law School Faculty Publications
Enthusiasm for "many minds" arguments has infected legal academia. Scholars now champion the virtues of groupthink, something once thought to have only vices. It turns out that groups often outperform individuals in aggregating information, weighing alternatives, and making decisions. And although some of our legal institutions, such as Congress and juries, already harness the power of the crowd, others could be improved by multiplying the number of minds at work. "Multiplying" implies a simple mathematical formula for improving decisionmaking; modern many minds arguments are more sophisticated than that. They use incentive analyses, game theory, and statistics to study how and …
The Captures Clause, Ingrid Wuerth
The Captures Clause, Ingrid Wuerth
Vanderbilt Law School Faculty Publications
The Captures Clause of the United States Constitution gives Congress the power to "make Rules concerning Captures on Land and Water." A variety of courts, scholars, politicians and others have recently cited the Clause to support conflicting arguments about the scope of Congress’s power to initiate and prosecute war. Some claim or assume that the Captures Clause gives Congress power over the taking and detention of people, while others conclude that the power is limited to property only. Similarly, those who view Congress’s power broadly understand the Captures Clause as giving Congress the power to determine what (or whom) may …
Transnationalizing Public Law, Ingrid Wuerth
Transnationalizing Public Law, Ingrid Wuerth
Vanderbilt Law School Faculty Publications
I am tasked today with talking about transnationalization, in particular the question of whether public law in the United States is undergoing some process of transnationalization today. My response, based on the work of the U.S. Supreme Court is yes, although probably only in a thin sense. The starting point for discussing this issue is generally the Supreme Court's citation to the laws of other countries in Printz v. United States, Roper v. Simmons, and Lawrence v. Texas. But these examples of comparative public law are controversial, substantively weak in the case of Printz, and relatively case (or issue) specific. …