Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 59

Full-Text Articles in Law

Direct-To-Consumer Genetic Testing, Ellen W. Clayton, Et Al. Nov 2021

Direct-To-Consumer Genetic Testing, Ellen W. Clayton, Et Al.

Vanderbilt Law School Faculty Publications

Direct-to-consumer genetic testing is marketed as a tool to uncover ancestry and kin. Recent studies of actual and potential users have demonstrated that individuals’ responses to the use of these tests for these purposes are complex, with privacy, disruptive consequences, potential for misuse, and secondary use by law enforcement cited as potential concerns. We conducted six focus groups with a diverse sample of participants (n = 62) who were aware of but had not used direct-to-consumer genetic tests, in an effort to understand more about what people considering these tests think about the potential value, risks, and benefits of such …


Affirmative Action And The Leadership Pipeline, Joni Hersch Nov 2021

Affirmative Action And The Leadership Pipeline, Joni Hersch

Vanderbilt Law School Faculty Publications

Recent events have brought heightened attention to racial injustice in the United States, which includes among its legacies a dearth of Black people in influential positions that shape society. But at the same time that the United States has turned its attention to diversity in leadership positions, the already narrow pipeline for those from underrepresented groups is likely to narrow even further in the near future. Specifically, the pipeline to influential positions in society typically flows from an elite education. Race-conscious affirmative action in higher education admissions is currently permitted in order for universities to meet their compelling interest in …


Praxis And Paradox: Inside The Black Box, Lauren Sudeall, Daniel Pasciuti Oct 2021

Praxis And Paradox: Inside The Black Box, Lauren Sudeall, Daniel Pasciuti

Vanderbilt Law School Faculty Publications

In the American legal system, we typically conceive of legal disputes as governed by specific rules and procedures, resolved in a formalized court setting, with lawyers shepherding both parties through an adversarial process involving the introduction of evidence and burdens of proof. The often-highlighted exception to this understanding is the mass, assembly-line processing of cases, whether civil or criminal, in large, urban, lower-level courts. The gap left unfilled by either of these two narratives is how "court" functions for the average unrepresented litigant in smaller and nonurban jurisdictions across the United States.

For many tenants facing eviction, elements of the …


The Perceived Risks Of E-Cigarettes To Others And During Pregnancy, W. Kip Viscusi Sep 2021

The Perceived Risks Of E-Cigarettes To Others And During Pregnancy, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Background

Public Health England has concluded that e-cigarettes are much safer than cigarettes for the user and for secondhand exposures, but it has not reached a definitive conclusion regarding pregnancy risks. How people perceive the risks to others is less well understood.

Methods

This study uses an online UK sample of 1041 adults to examine perceived e-cigarette risks to others and during pregnancy. The survey examines relative risk beliefs of e-cigarettes compared to cigarettes and the percentage reduction in harm provided by e-cigarettes.

Results

A majority of the sample believes that secondhand exposure to e-cigarette vapors poses less risk than …


The Role Of Private Environmental Governance In Climate Adaption, Michael P. Vandenbergh, B. M. Johnson Sep 2021

The Role Of Private Environmental Governance In Climate Adaption, Michael P. Vandenbergh, B. M. Johnson

Vanderbilt Law School Faculty Publications

This Article examines the role of private environmental governance (PEG) in climate change adaptation. PEG occurs when private organizations perform traditionally governmental functions such as providing public goods and reducing negative externalities. PEG initiatives that target climate change mitigation have expanded rapidly in the last decade and have been the subject of research in multiple fields, but PEG initiatives that target climate change adaptation have received less attention. As a first step, the Article develops a definition of private governance regarding climate adaptation, identifies several types of PEG adaptation initiatives, and briefly identifies research gaps.


The Rise Of Affectivism, Terry A. Maroney, David Dukes, Et Al. Jun 2021

The Rise Of Affectivism, Terry A. Maroney, David Dukes, Et Al.

Vanderbilt Law School Faculty Publications

Research over the past decades has demonstrated the explanatory power of emotions, feelings, motivations, moods, and other affective processes when trying to understand and predict how we think and behave. In this consensus article, we ask: has the increasingly recognized impact of affective phenomena ushered in a new era, the era of affectivism? ...

The behavioural and cognitive sciences have faced perennial challenges of incorporating emotions, feelings, motivations, moods, and other affective processes into models of human behaviour and the human mind. Such processes have long been marginalised or ignored, typically on the basis that they were irrational, un-measurable, or …


Antitrust's High-Tech Exceptionalism, Rebecca H. Allensworth Jan 2021

Antitrust's High-Tech Exceptionalism, Rebecca H. Allensworth

Vanderbilt Law School Faculty Publications

American competition policy has four big problems: Amazon, Apple, Facebook, and Google. These companies each reign over a sector of the digital marketplace, controlling both the consumer experience and the possibility of competitive entry. This Essay argues that the conventional account of how antitrust law allowed this consolidation of market power - that it failed to evolve to address the market realities of the technology sector-is incomplete. Not only did courts fail to adapt antitrust law from its smoke-stack roots, but they gave big tech special dispensation under traditional antitrust doctrine. Swayed by prevailing utopic views about digital markets in …


Clinical Fellowships, Faculty Hiring, And Community Values, G. S. Hans Jan 2021

Clinical Fellowships, Faculty Hiring, And Community Values, G. S. Hans

Vanderbilt Law School Faculty Publications

This Essay explores clinical hiring practices as an expression of community values. In particular, it discusses how lawyers become clinical faculty to reflect on whether and how prior clinical teaching experience should be assessed for entry-level clinical applicants in order to effectuate equity and inclusion within law schools and the clinical community. Publicly available data suggest that a majority of recent entry-level clinical faculty have prior clinical teaching experience as fellows or staff attorneys. What does this apparent hiring preference for prior teaching experience mean for the composition of the clinical community, especially with respect to equity and inclusion? As …


The Generalist Externship Seminar: A Unique Curricular Opportunity To Teach About The Legal Profession, Spring Miller Jan 2021

The Generalist Externship Seminar: A Unique Curricular Opportunity To Teach About The Legal Profession, Spring Miller

Vanderbilt Law School Faculty Publications

This article explores the role that a generalist externship seminar can play in teaching law students about the legal profession - lawyers, the institutions in which they practice, and the markets for their services. After reviewing the evolution of the externship course and externship seminar in the legal curriculum, the article turns to a discussion of the absence of opportunities at most law schools for students to study and learn about the legal profession. It contends that the absence of serious attention to the profession in the curricula of most law schools does a disservice to law students, who need …


Regulation And The Geography Of Inequality, Ganesh Sitaraman, Christopher Serkin, Morgan Ricks Jan 2021

Regulation And The Geography Of Inequality, Ganesh Sitaraman, Christopher Serkin, Morgan Ricks

Vanderbilt Law School Faculty Publications

We live in an era of widening geographic inequality. Around the country, the spread between economically and culturally thriving places and those that are struggling has been increasing. "Superstar" cities like New York, San Francisco, Boston, and Atlanta continue to attract talent and grow, while the economies of other cities and rural areas are left behind. Troublingly, escalating geographic inequality in the United States has arrived hand in hand with serious economic, social, and political problems. Areas that are left behind have not only failed to keep up with their thriving peers; in many ways, they have stagnated and seen …


The Research Patent, Sean B. Seymore Jan 2021

The Research Patent, Sean B. Seymore

Vanderbilt Law School Faculty Publications

The patent system gives courts the discretion to tailor patentability standards flexibly across technologies to provide optimal incentives for innovation. For chemical inventions, the courts deem them unpatentable if the chemical lacks a practical, non-research-based use at the time patent protection is sought. The fear is that an early-stage patent on a research input would confer too much control over yet-unknown uses for the chemical, thereby potentially hindering downstream innovation. Yet, denying patents on research inputs can frustrate patent law's broad goal of protecting and promoting scientific and technological advances.

This Article addresses this problem by proposing a new form …


Many Minds, Many Mdl Judges, Brian T. Fitzpatrick Jan 2021

Many Minds, Many Mdl Judges, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

My focus here is on a cost that has been surprisingly neglected by scholars but may be the greatest cost of them all: the accurate adjudication of legal claims and defenses. I suspect it is intuitive to most of us that asking one person to decide something instead of inviting many other people to weigh in probably reduces the quality of the resulting decision. There is a literature that formalizes this intuition called "many-minds" scholarship. It proceeds from a famous mathematics proof known as the Condorcet Jury Theorem. Although some people have questioned the applicability of many-minds theories to legal …


Absolutist Admissibility At The Icc: Revalidating Authentic Domestic Investigations, Michael A. Newton Jan 2021

Absolutist Admissibility At The Icc: Revalidating Authentic Domestic Investigations, Michael A. Newton

Vanderbilt Law School Faculty Publications

Current jurisprudential trends empower the International Criminal Court (ICC) Prosecutor to override domestic investigative authorities in a manner that violates the letter and spirit of the Rome Statute. Sovereign states have primary responsibility to document, investigate and prevent atrocity crimes. Yet, current ICC practice subverts domestic enforcement efforts. No provision of the Rome Statute permits the Office of the Prosecutor (OTP) to substitute its unfettered judgment over the good-faith discretion of domestic prosecutors. ICC judges have created de facto institutional jurisdictional primacy by relying upon mere assertions regarding the insufficiency of domestic efforts. This trend is particularly problematic at the …


How To Treat The Wto's Problem With Precedent, Timothy Meyer Jan 2021

How To Treat The Wto's Problem With Precedent, Timothy Meyer

Vanderbilt Law School Faculty Publications

This Article argues that the World Trade Organization's Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB's practice of precedent-which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments-is similar to how it has approached "likeness" in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have …


4°C, J. B. Ruhl, Robin K. Craig Jan 2021

4°C, J. B. Ruhl, Robin K. Craig

Vanderbilt Law School Faculty Publications

In March 2020, while the world's attention was focused on the coronavirus pandemic, an international team of eighty-nine polar scientists from fifty organizations reported that Greenland and Antarctica are losing ice six times faster than they were in the 1990s. Based on satellite data, the research team concluded that "if the current melting trend continues, the regions will be on track to match the 'worst-case' scenario of the Intergovernmental Panel on Climate Change (IPCC) of an extra 6.7 inches (17 centimeters) of sea-level rise by 2100." One month later, in Siberia, "the small town of Verkhoyansk (67.5°N latitude) reached 100.4 …


Becoming Visible, Jennifer B. Shinall Jan 2021

Becoming Visible, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

This Article will consider the consequences of a large number of workers making their health conditions known to their employers during the pandemic. Becoming visible will likely have short-term costs for both employers and employees-—in terms of health-status discrimination, privacy, and administrative burdens. Nonetheless, this Article will ultimately argue that becoming visible also has a major benefit: improved information flow between employers and employees. Although the long-run cost-benefit analysis of increased health-status visibility during the pandemic remains to be seen, increased visibility ultimately has the potential to improve the employer-employee relationship.


Certifying Second Chances, Cara Suvall Jan 2021

Certifying Second Chances, Cara Suvall

Vanderbilt Law School Faculty Publications

Policymakers around the country are grappling with how to provide a second chance to people with criminal records. These records create collateral consequences-invisible punishments that inhibit opportunity in all facets of a person's life. Over the past seven years, states have repeatedly tried to legislate new paths for people trying to move on with their lives. State legislators passed more than 150 laws targeting collateral consequences in 2019 alone.

But what happens when these paths to second chances are littered with learning, compliance, and psychological costs? The people who most need these new opportunities may find that they are out …


Chevron Is A Phoenix, Lisa Bressman, Kevin Stack Jan 2021

Chevron Is A Phoenix, Lisa Bressman, Kevin Stack

Vanderbilt Law School Faculty Publications

Judicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details or default to judicial determinations. It also recognizes that interpretation under regulatory statutes is intertwined with implementation of those statutes. Prior to the famous decision in Chevron, the Supreme Court had long regarded judicial deference as a foundational principle of administrative law. It grew up with the administrative state alongside other foundational administrative law principles. In Chevron, the Court gave …


How And Why Did It Go So Wrong?: Theranos As A Legal Ethics Case Study, G. S. Hans Jan 2021

How And Why Did It Go So Wrong?: Theranos As A Legal Ethics Case Study, G. S. Hans

Vanderbilt Law School Faculty Publications

The Theranos saga encompasses many discrete areas of law. Reporting on Theranos, most notably John Carreyrou's Bad Blood, highlights the questionable ethical decisions that many of the attorneys involved made. The lessons attorneys and law students can learn from Bad Blood are highly complex. The Theranos story touches on multiple areas of professional responsibility, including competence, diligence, candor, conflicts, and liability. Thus, Theranos serves as a helpful tool to explore the limits of ethical lawyering for Professional Responsibility students. This Article discusses the author's experience with using Bad Blood as an extended case study in a new course on Legal …


Potus And Pot: Why The President Could Not Legalize Marijuana Through Executive Action, Robert Mikos Jan 2021

Potus And Pot: Why The President Could Not Legalize Marijuana Through Executive Action, Robert Mikos

Vanderbilt Law School Faculty Publications

Could the President legalize marijuana, without waiting for Congress to act? The 2020 Presidential Election showed that this question is far from hypothetical. Seeking to capitalize on frustration with the slow pace of federal legislative reform, several presidential candidates promised they would bypass the logjam in Congress and legalize marijuana through executive action instead.

This Essay warns that such promises are both misguided and dangerous because they ignore statutory and constitutional constraints on the President’s authority to effect legal change. It explains why supporters of marijuana reform should be wary of legalizing the drug through executive action, even if that …


Classaction.Gov, Amanda M. Rose Jan 2021

Classaction.Gov, Amanda M. Rose

Vanderbilt Law School Faculty Publications

This Essay proposes the creation of a federally run class action website and supporting administration (collectively, Classaction.gov) that would both operate a comprehensive research database on class actions and assume many of the notice and claims-processing functions performed by class action claims administrators today. Classaction.gov would bring long-demanded transparency to class actions and, through forces of legitimization and coordination, would substantially increase the rate of consumer participation in class action settlements. It also holds the key to mitigating other problems in class action practice, such as the inefficiencies and potential abuses associated with multiforum litigation, the limited success of the …


No Exit: Ten Years Of "Privacy Vs. Speech" Post-Sorrell, G. S. Hans Jan 2021

No Exit: Ten Years Of "Privacy Vs. Speech" Post-Sorrell, G. S. Hans

Vanderbilt Law School Faculty Publications

A decade has passed since the U.S. Supreme Court held in Sorrell vs. IMS Health that a Vermont privacy law violated the First Amendment. Somewhat surprisingly, the debate about the intersection between privacy laws and free speech protections has not progressed much in the intervening years. If anything, the concerns that some privacy advocates had following Sorrell-that the First Amendment could be used as a tool to overturn privacy regulations-have extended to other areas of economic regulation. As a public interest attorney working on technology law and policy, I entered into practice not long after Sorrell was decided, when it …


Preventive Justice: How Algorithms Parole Boards, And Limiting Retributivism Could End Mass Incarceration, Christopher Slobogin Jan 2021

Preventive Justice: How Algorithms Parole Boards, And Limiting Retributivism Could End Mass Incarceration, Christopher Slobogin

Vanderbilt Law School Faculty Publications

A number of states use statistically derived algorithms to provide estimates of the risk of reoffending. In theory, these risk assessment instruments could bring significant benefits. Fewer people of all ethnicities would be put in jail prior to trial and in prison after conviction, the duration of sentences would be reduced for low-risk offenders, and treatment resources would be more efficiently allocated. As a result, the capital outlays for prisons and jails would be substantially reduced. The public would continue to be protected from the most dangerous individuals, while lower-risk individuals would be less subject to the criminogenic effects of …


A Regulatory Policy Strategy For Protecting Immigrant Workers, W. Kip Viscusi, N. Marquiss Jan 2021

A Regulatory Policy Strategy For Protecting Immigrant Workers, W. Kip Viscusi, N. Marquiss

Vanderbilt Law School Faculty Publications

Immigration has become a focal point of many political campaigns, most notably that of President Trump in 2016 and again in 2020. Populist rhetoric also decries immigrant workers for taking Americans' jobs and depressing wages for U.S.-born workers. Yet immigrants serve a constructive role by working in some of the most dangerous occupations in the country. It is well-known that immigrant workers, particularly those from Mexico with limited English language skills, face a higher workplace fatality rate than native workers. Efforts to reverse this trend have long been the focus of the Occupational Safety and Health Administration (OSHA), which undertook …


Handling Aggravating Facts After Blakely: Findings From Five Presumptive Guidelines States, Nancy J. King Jan 2021

Handling Aggravating Facts After Blakely: Findings From Five Presumptive Guidelines States, Nancy J. King

Vanderbilt Law School Faculty Publications

This Article reveals how five states with presumptive (binding) sentencing guidelines have implemented the right announced in Blakely v. Washington to a jury finding of aggravating facts allowing upward departures from the presumptive range. Using data provided by the sentencing commissions and courts in Kansas, Minnesota, North Carolina, Oregon, and Washington, as well as information from more than 2,200 docket sheets, the study discloses how upward departures are used in plea bargaining, sometimes undercutting policy goals; how often aggravating facts are tried and by whom; common types of aggravating facts; and the remarkably different, sometimes controversial interpretations of Blakely and …


A Response To Calls For Sec Mandated Esg Disclosure, Amanda M. Rose Jan 2021

A Response To Calls For Sec Mandated Esg Disclosure, Amanda M. Rose

Vanderbilt Law School Faculty Publications

This Article responds to recent proposals calling for the SEC to adopt a mandatory ESG-disclosure framework. It illustrates how the breadth and vagueness of these proposals obscures the important--and controversial-- policy questions that would need to be addressed before the SEC could move forward on the proposals in a principled way. The questions raised include some of the most contested in the field of corporate and securities law, such as the value of interjurisdictional competition for corporate charters, the right way to conceptualize the purpose of the corporation, the proper allocation of managerial power as between the board and shareholders, …


Fedaccounts: Digital Dollars, Morgan Ricks, J. Crawford, L. Menand Jan 2021

Fedaccounts: Digital Dollars, Morgan Ricks, J. Crawford, L. Menand

Vanderbilt Law School Faculty Publications

We are entering a new monetary era. Central banks around the world- spurred by the development of privately controlled digital currencies as well as competition from other central banks-have been studying, building, and, in some cases, issuing central bank digital currency ("CBDC").

Although digital fiat currency is one of the hottest topics in macroeconomics and central banking today, the discussion has largely over- looked the most straightforward and appealing strategy for implementing a U.S. dollar-based CBDC: expanding access to bank accounts that the Federal Reserve already offers to a small, favored set of clients. These accounts consist of entries in …


Energy Federalism's Aim, Jim Rossi Jan 2021

Energy Federalism's Aim, Jim Rossi

Vanderbilt Law School Faculty Publications

The Federal Power Act (FPA) has endured for eighty-five years, in part because it does not embrace a single regulatory approach for the energy industry. Nor does the FPA favor a single approach to federal- ism: it delegates broad authority to the Federal Energy Regulatory Commission (FERC) to regulate the wholesale sale and transmission of energy in interstate commerce, while leaving states considerable leeway to regulate not only retail rates but also power generation and distribution. The statute expanded federal authority over wholesale electric power sales, with the primary purpose of closing regulatory gaps in interstate energy markets.

For the …


Originality's Other Path, Joseph Fishman Jan 2021

Originality's Other Path, Joseph Fishman

Vanderbilt Law School Faculty Publications

Drawing on original archival research, this Article challenges the standard account of what originality doctrine is and what courts can do with it. It identifies Nelson's forgotten copyright legacy: a still-growing line of cases that treats music differently, sometimes even more analogously to patentable inventions than to other authorial works. These decisions seem to function as a hidden enclave within originality's larger domain, playing by rules that others couldn't get away with. They form originality's other path, much less trod than the familiar one but with a doctrinal story of its own to tell. Originality and nonobviousness's parallel beginnings reveal …


Employment Practices Liability Insurance And Ex Post Moral Hazard, Joni Hersch, Erin E. Meyers Jan 2021

Employment Practices Liability Insurance And Ex Post Moral Hazard, Joni Hersch, Erin E. Meyers

Vanderbilt Law School Faculty Publications

Many businesses purchase Employment Practices Liability Insurance (EPLI), a form of insurance that protects them from claims of discrimination, harassment, retaliation, and wrongful termination. But critics of EPLI argue that allowing insurance coverage for employment liability detracts from employment law's goal of deterrence and from notions of justice. We assess the validity of these criticisms by examining the nature of employment law claims and by reviewing characteristics of the current EPLI market. We find that past critiques miss the mark in diagnosing EPLI's major problem.

The EPLI market, for the most part, functions in a way that poses little to …