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Articles 1111 - 1140 of 1415

Full-Text Articles in Law

Whither The Race? A Comment On The Effects Of The Delawarization Of Corporate Reorganizations, Randall Thomas, Robert K. Rasmussen Jan 2001

Whither The Race? A Comment On The Effects Of The Delawarization Of Corporate Reorganizations, Randall Thomas, Robert K. Rasmussen

Vanderbilt Law School Faculty Publications

Recent empirical work has demonstrated that large, publicly held firms tend to file for bankruptcy in Delaware. In our previous work, we have documented this trend, and argued that it may be efficient for prepackaged bankruptcies, while it unclear if it is efficient for traditional Chapter 11 cases. In this piece, we respond to LoPucki and Kalin's assertion that Delaware bankruptcy court performs worse than others. They base this claim on the observation that firms that file for bankruptcy in Delaware are more likely to file for bankruptcy a second time than are firms that file in another jurisdiction. We …

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Evolutionary Analysis In Law: Some Objections Considered, Owen D. Jones Jan 2001

Evolutionary Analysis In Law: Some Objections Considered, Owen D. Jones

Vanderbilt Law School Faculty Publications

This Article appears in a special issue of the Brooklyn Law Review on DNA: Lessons from the Past - Problems for the Future. It first addresses why law needs insights from behavioral biology, and then identifies and responds to a variety of structural and conceptual barriers to such evolutionary analysis in law.

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The Evolution Of Irrationality, Owen D. Jones Jan 2001

The Evolution Of Irrationality, Owen D. Jones

Vanderbilt Law School Faculty Publications

The place of the rational actor model in the analysis of individual and social behavior relevant to law remains unresolved. In recent years, scholars have sought frameworks to explain: a) disjunctions between seemingly rational behavior and seemingly irrational behavior; b) the origins of and influences on law-relevant preferences, and c) the nonrandom development of norms. This Article explains two components of an evolutionary framework that, building from accessible insights of behavioral biology, can encompass all three. The components are: "time-shifted rationality" and "the law of law's leverage."

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Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng Jan 2001

Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This Note has examined the consequences of a shift in the equal protection context - a move from a traditional particularized harm perspective to a constitutional risk perspective focused on systemic harms. It has also acknowledged the significant remedial difficulties associated with constitutional risk, but by focusing on discretion as the source of most equal protection risks, this Note has proposed a moderate doctrinal change: discretionary safeguards. To be sure, this Note leaves the project substantially incomplete. Constitutional risk's focus on statistical evidence requires careful discussion of the pitfalls judges face in this area and of how they can develop …

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Apples For Oranges, J.B. Ruhl, James Salzman Jan 2001

Apples For Oranges, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

Over the last decade, there has been a sea change in environmental law and policy, marked by growing interest in market-based instruments of environmental protection. In particular, approaches that explicitly commodify environmental impacts by creating markets for their sale are on the rise. These environmental trading markets (ETMs) now operate in a range of regulatory settings where parties exchange credits to emit air pollutants, extract natural resources, and develop habitat. In fact, every major environmental policy review in the last five years has called for even greater use of ETMs. Markets for environmental commodities represent the new wave of environmental …

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"Apprendi" And Plea Bargaining, Nancy J. King, Susan Riva Klein Jan 2001

"Apprendi" And Plea Bargaining, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

Before "Apprendi", prosecutors using recidivism as a club could, and did, regularly insist that defendants admit aggravating facts as part of the plea or face additional time. When the prosecutor's threats of added time were not persuasive and the proof of aggravating facts weak, the defendant prior to "Apprendi" could refuse to admit to the aggravating fact, and plead guilty only to the offense without the aggravating fact. Nothing about "Apprendi" gives additional leverage to the prosecutor in this situation. A defendant who, prior to "Apprendi", decided to risk trial rather than face the aggravated sentence will make the same …

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Litigating Challenges To Executive Pay: An Exercise In Futility?, Randall Thomas, Kenneth J. Martin Jan 2001

Litigating Challenges To Executive Pay: An Exercise In Futility?, Randall Thomas, Kenneth J. Martin

Vanderbilt Law School Faculty Publications

This paper is an empirical analysis of plaintiffs' success rates in executive compensation litigation. Using data from publicly available files, this study examines a sample of 124 cases where shareholders have challenged executive compensation levels and practices at public and closely held corporations. This data set shows that shareholders are successful in at least some stage of this litigation in a significant percentage of these cases. Our most robust result is that plaintiffs win a greater percentage of the time in compensation cases against closely held companies than against publicly held companies. This result is consistent for every stage of …

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Brain Plasticity And Spanish Moss In Biolegal Analysis, Erin O'Connor Jan 2001

Brain Plasticity And Spanish Moss In Biolegal Analysis, Erin O'Connor

Vanderbilt Law School Faculty Publications

The field of law and biology is growing rapidly, and the good scholarship typically has much to do with Owen Jones... The general message that Professor Jones disseminates in his articles is important. Law cannot reach peak effectiveness unless it is built on a sound behavioral model, and no model of human nature is ultimately sound unless it is consistent with the insights from behavioral biology. And the beauty of behavioral biology, for one who uses behavioral models, is that it tells us something about human tastes, preferences, and cognitive biases and limitations.

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Essential Elements, Nancy J. King, Susan Riva Klein Jan 2001

Essential Elements, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

The Court has struggled for well over a century with the issue of who has final authority to define what is a "crime" for purposes of applying procedural protections guaranteed by the Constitution in criminal cases. Just as labeling an action "civil" may allow the government to circumvent constitutional criminal procedure entirely, so labeling a fact an "affirmative defense" or a "sentencing factor" instead of an element of the offense may allow the government to escape constitutional criminal procedure selectively, bypassing the burden of proof, pleading, and jury requirements that would otherwise apply to an offense element. In its decision …

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Too Clever By Half: The Problem With Novelty In Constitutional Law, Suzanna Sherry Jan 2001

Too Clever By Half: The Problem With Novelty In Constitutional Law, Suzanna Sherry

Vanderbilt Law School Faculty Publications

As Robert Bennett's article illustrates, the "counter-majoritarian difficulty" remains--some forty years after its christening--a central theme in constitutional scholarship. [See Robert W. Bennett, "Counter-Conversationalism and the Sense of Difficulty", 95 NW. U. L. Rev. 845 (2001) ] Indeed, one might say that reconciling judicial review and democratic institutions is the goal of almost every major constitutional scholar writing today, including Bennett himself. I have suggested elsewhere that scholars as diverse as Richard Epstein, Antonin Scalia, and Robert Bork on the one hand, and Akhil Amar, Bruce Ackerman, and Ronald Dworkin on the other, are all motivated by a desire to …

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Accommodation And Equal Liberty, Lisa Schultz Bressman Jan 2001

Accommodation And Equal Liberty, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

How should legislatures respond to requests from religious individuals or institutions for exemptions to generally applicable laws? In Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause does not require legislatures (federal or state) to honor such requests. The question remains whether they should do so on a voluntary basis. This is the problem of permissive accommodation-that is, accommodation of religious liberty as a matter of political discretion rather than constitutional compulsion. Put in the terms of this Symposium, it is the problem of accommodation in the public square. It is not immediately apparent why permissive …

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Getting Past Democracy, Edward L. Rubin Jan 2001

Getting Past Democracy, Edward L. Rubin

Vanderbilt Law School Faculty Publications

The tension between our concept of democracy and the government we actually possess is well known, despite our insistent efforts to claim that the term "democracy" accurately describes our governmental system. One area where this tension has been apparent is American constitutionalism. The conflict between our concept of democracy and the institution of judicial review became a political issue when the Supreme Court placed itself in opposition to Progressive Era and New Deal legislation. This same conflict subsequently served as a central concern of the Legal Process School, which indelibly characterized it as the "counter-majoritarian difficulty."' The more far-reaching and …

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Should Shareholders Have A Greater Say Over Executive Pay??, Randall S. Thomas, Brian R. Cheffins Jan 2001

Should Shareholders Have A Greater Say Over Executive Pay??, Randall S. Thomas, Brian R. Cheffins

Vanderbilt Law School Faculty Publications

Executive pay arrangements in Britain's publicly quoted companies have been subjected to much criticism in recent years. Proposals that shareholders should have a greater direct say over managerial remuneration have been a by-product of the concerns expressed. Debate on this point, however, has been largely speculative. This is because there is little evidence available in the United Kingdom indicating how shareholders would exercise any new powers they might be given. This paper addresses the evidentiary gap by drawing upon the experience in the United States, where empirical work indicates that shareholder voting only operates as a potential check when pay …

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Cigarette Smokers As Job Risk Takers, Joni Hersch, W. Kip Viscusi Jan 2001

Cigarette Smokers As Job Risk Takers, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Using a large data set, the authors find that smokers select riskier jobs, but receive lower total wage compensation for risk than do nonsmokers. This finding is inconsistent with conventional models of compensating differentials. The authors develop a model in which worker risk preferences and job safety performance lead to smokers facing a flatter market offer curve than nonsmokers. The empirical results support the theoretical model. Smokers are injured more often controlling for their job's objective risk and are paid less for these risks of injury. Smokers and nonsmokers, in effect, are segmented labor market groups with different preferences and …

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The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie Jan 2001

The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie

Vanderbilt Law School Faculty Publications

Riskin's categorization of mediation has engendered much debate among academics and practitioners. Although most in the mediation community accept Riskin's positive assertion that mediation as currently practiced includes both facilitation and evaluation, a vocal group of purist critics rejects Riskin's pluralist view of mediation on normative grounds. These purist critics -- including such prominent mediator-scholars as Professors Kim Kovach, Lela Love," and Josh Stulberg -- argue that mediation is in fact, and should be, solely a facilitative process "designed to capture the parties' insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes." For …

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Realities Of Rape: Of Science And Politics, Causes And Meanings, Owen D. Jones Jan 2001

Realities Of Rape: Of Science And Politics, Causes And Meanings, Owen D. Jones

Vanderbilt Law School Faculty Publications

This review essay discusses the book A Natural History of Rape: Biological Bases of Sexual Coercion, by Randy Thornhill and Craig Palmer (MIT Press, 2000). The essay builds on work previously appearing in Owen D. Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827 (1999) and Owen D. Jones, Law and the Biology of Rape: Reflections on Transitions, 11 Hastings Women's Law Journal 151 (2000).

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An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin Jan 2001

An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article takes a comparative and empirical look at two of the most significant methods of police investigation: searches for and seizures of tangible evidence and interrogation of suspects. It first compares American doctrine regulating these investigative tools with the analogous rules predominant in Europe (specifically, England, France and Germany). It then discusses research on the American system that sheds light on the relative advantages and disadvantages of the two regulatory systems. More often than not, the existing data call into question preconceived notions of what "works." In particular, American reverence for search warrants, the exclusionary rule, and "Miranda" warnings …

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The Roman Public Trust Doctrine--What Was It, And Does It Support An Atmospheric Trust?, J. B. Ruhl, Thomas A.J. Mcginn Nov 2000

The Roman Public Trust Doctrine--What Was It, And Does It Support An Atmospheric Trust?, J. B. Ruhl, Thomas A.J. Mcginn

Vanderbilt Law School Faculty Publications

Through building waves of legal scholarship and litigation, a group of legal academics and practitioners is advancing a theory of the public trust doctrine styled as the "atmospheric trust." The atmospheric trust would require the federal and state governments to regulate public and private actors to reduce greenhouse gas emissions to abate climate change. The traditional common law version of the American public trust doctrine requires that states owning title to lands submerged under navigable waters manage them in trust for the public to use for navigation, fishing, and commerce and that the states not alienate such resources to the …

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Corporate Risk Analysis: A Reckless Act?, W. Kip Viscusi Feb 2000

Corporate Risk Analysis: A Reckless Act?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Balancing of risk and cost lies at the heart of standard negligence tests and policy analysis approaches to government regulation. Notwithstanding the desirability of using a benefit-cost approach to assess the merits of safety measures, in many court cases juries appear to penalize corporations for having done a risk analysis in instances in which the company decided not to make a safety improvement after the analysis indicated the improvement was unwarranted Automobile accident cases provide the most prominent examples of such juror sanctions. This paper tests the effect of corporate risk analyses experimentally by using a sample of almost 500 …

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On The Nature Of Norms: Biology, Morality, And The Disruption Of Order, Owen D. Jones Jan 2000

On The Nature Of Norms: Biology, Morality, And The Disruption Of Order, Owen D. Jones

Vanderbilt Law School Faculty Publications

This essay discusses the legal implications of bio-behavioral underpinnings to norms, morality, and economic order. It first discusses the recent book "The Great Disruption: Human Nature and the Reconstitution of Social Order," in which Francis Fukuyama explores the importance of evolved human nature to the reconstruction of social order and a thriving economy. It then addresses the extent to which we can usefully view law-relevant norms as products of evolutionary - as well as economic - processes.

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Law And The Biology Of Rape: Reflections On Transitions, Owen D. Jones Jan 2000

Law And The Biology Of Rape: Reflections On Transitions, Owen D. Jones

Vanderbilt Law School Faculty Publications

This Article serves is a sequel to a previous Article: Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827 (1999). Part I briefly considers the threshold question: why consider the behavioral biology of sexual aggression at all? Part II proposes that the first step in transitioning to a more accurate and more useful model of rape behavior is to avoid a number of common definitional ambiguities that plague most rape discussions. Because those ambiguities are particularly likely to foster misunderstandings about biobehavioral perspectives, Part II also clarifies the scope of what biobehavioral theories …

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Framing Frivolous Litigation: A Psychological Theory, Chris Guthrie Jan 2000

Framing Frivolous Litigation: A Psychological Theory, Chris Guthrie

Vanderbilt Law School Faculty Publications

This Article uses an often-overlooked component of prospect theory to develop a positive theory of frivolous or low-probability litigation. The proposed Frivolous Framing Theory posits that the decision frame in frivolous litigation induces risk-seeking behavior in plaintiffs and risk averse behavior in defendants. Because plaintiffs in frivolous litigation have a greater tolerance for risk than the defendants they have sued, plaintiffs in frivolous litigation have "psychological leverage" in settlement negotiations, which is likely to lead to plaintiff-friendly settlements or bargaining impasse. This in turn, suggests that reformers concerned about frivolous litigation should target reform efforts at plaintiffs' decisionmaking in frivolous …

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Doubts About Daubert: Psychiatric Anecdata As A Case Study, Christopher Slobogin Jan 2000

Doubts About Daubert: Psychiatric Anecdata As A Case Study, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In Daubert v. Merrell Dow Pharmaceuticals Inc., the Supreme Court sensibly held that testimony purporting to be scientific is admissible only if it possesses sufficient indicia of scientific validity. In Kumho Tire Co. v. Carmichael, the Court more questionably held that opinion evidence based on "technical" and "specialized" knowledge must meet the same admissibility threshold as scientific testimony. This Article addresses the implications of these two decisions for opinion evidence presented by mental health professionals in criminal trials.

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The Value Of Life In Legal Contexts: Survey And Critique, W. Kip Viscusi Jan 2000

The Value Of Life In Legal Contexts: Survey And Critique, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Value of life issues traditionally pertain to insurance of the losses of accident victims, for which replacement of the economic loss is often an appropriate concept. Deterrence measures of the value of life focus on risk-money tradeoffs involving small changes in risk. Using market data for risky jobs and product risk contexts often yields substantial estimates of the value of life in the range of $3 million to $9 million. These estimates are useful in providing guidance for regulatory policy and assessments of liability. However, use of these values to determine compensation, known as hedonic damages, leads to excessive insurance.

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Deciphering Courts Of Appeals Decisions Using The U.S. Courts Of Appeals Data Base, Tracey E. George, Reginald S. Sheehan Jan 2000

Deciphering Courts Of Appeals Decisions Using The U.S. Courts Of Appeals Data Base, Tracey E. George, Reginald S. Sheehan

Vanderbilt Law School Faculty Publications

Is one circuit significantly more conservative or liberal than the others? Do circuit courts consistently avoid deciding the substance of certain appeals by concluding that the plaintiffs lack standing? Have state governments been more successful than other parties when they appeal adverse district court rulings? Do appeals courts act in a majoritarian or countermajoritarian manner with regard to elected institutions and the general public? The United States Courts of Appeals Data Base, an extensive data set of courts of appeals decisions, can address these and other questions about the circuit courts. This article describes the background, scope, and content of …

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All Or Nothing: Explaining The Size Of Supreme Court Majorities, Paul H. Edelman, Suzanna Sherry Jan 2000

All Or Nothing: Explaining The Size Of Supreme Court Majorities, Paul H. Edelman, Suzanna Sherry

Vanderbilt Law School Faculty Publications

In this Article, Professors Edelman and Sherry use a probabilistic model to explore the process of coalition formation on the United States Supreme Court. They identify coalition formation as a Markov process with absorbing states and examine voting patterns from twelve Court Terms. On the basis of their data, they conclude that Justices are reluctant to remain in small minorities. Surprisingly, however, they also find that a three-Justice minority coalition is less likely to suffer defections than a four-Justice minority coalition. This counterintuitive result suggests that while in general it is minority Justices rather than majority Justices who drive the …

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The Determinants Of Shareholder Voting On Stock Option Plans, Randall S. Thomas, Kenneth J. Martin Jan 2000

The Determinants Of Shareholder Voting On Stock Option Plans, Randall S. Thomas, Kenneth J. Martin

Vanderbilt Law School Faculty Publications

Over the past decade, executive compensation has become a controversial topic. Increasingly, corporate boards of directors are confronted by angry shareholder groups over the size and composition of executive pay packages. One of the most important focal points for these tensions arises when shareholders are asked by the board to approve the creation of new stock option plans, or the amendment of existing plans. This article seeks to identify the factors that lead shareholders to support or oppose stock option plans. We examine the justifications for the widespread use of stock options and identify several benefits from stock option plans …

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Universal Service In Competitive Retail Electric Power Markets: Whither The Duty To Serve?, Jim Rossi Jan 2000

Universal Service In Competitive Retail Electric Power Markets: Whither The Duty To Serve?, Jim Rossi

Vanderbilt Law School Faculty Publications

This article addresses whether traditional service obligations can coexist with retail competition. A rationale often given for universal service obligations in the telecommunications industry is that universal service, by promoting interconnectivity, enhances network system benefits for all customers. While the network economies argument may have worked to sustain universal service in the face of telecommunications deregulation, it is tenuous when applied to the natural gas and electricity industries. Many reformers look askance at the duty to serve in competitive retail utility service markets, often pointing to conflict between retail competition in electricity and the duty to serve. This article argues, …

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From Politics To Efficiency In Choice Of Law, Erin O'Connor Jan 2000

From Politics To Efficiency In Choice Of Law, Erin O'Connor

Vanderbilt Law School Faculty Publications

This article proposes a comprehensive system for choice of law that is designed to enhance social wealth by focusing on individual rather than governmental interests. To the extent practicable, parties should be able to choose their governing law. In the absence of an explicit agreement, courts should apply rules that facilitate party choice or that select the law the parties likely would have contracted for - that is, the law of the state with the comparative regulatory advantage. The system relies on clear rules that enable the parties to determine, at low cost and ex ante, what law applies to …

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The Wisconsin Diploma Privilege: Try It, You'll Like It, Beverly I. Moran Jan 2000

The Wisconsin Diploma Privilege: Try It, You'll Like It, Beverly I. Moran

Vanderbilt Law School Faculty Publications

The big question that the Wisconsin diploma privilege raises is whether waivers into practice upon graduation can work outside the Dairy State. Is Wisconsin simply so unique that its successful experience cannot be replicated elsewhere? My conclusion is that there are certain characteristics that make Wisconsin a good site for the diploma privilege but that those characteristics are shared by several other states. These characteristics include (1) a small state with a relatively small practicing bar; (2) a close relationship between the bar, the judiciary, the legislature, and the law schools within the state; and (3) great regard between the …

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