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Articles 1231 - 1260 of 1389
Full-Text Articles in Law
Economic Foundations Of The Current Regulatory Reform Efforts, W. Kip Viscusi
Economic Foundations Of The Current Regulatory Reform Efforts, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
Almost since the inception of the risk and environmental agencies in the early 1970s, there has been a continuing concern with ensuring that regulations yield societal benefits commensurate with their costs. This recognition of the need for balance, in turn, has led policymakers to seek a greater role for economists, and the principles of economic analysis undoubtedly will continue to play a central role in the debate over the future of regulatory policy.
Cleaning Up Superfund, W. Kip Viscusi
Cleaning Up Superfund, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
The cleanup of hazardous wastes is the number one environmental concern of the American people. The government's response: the Environmental Protection Agency (EPA) launched its Superfund program, which was established by Congress in 1980 and reformed in 1986. But, though not even two decades old, the Superfund effort is now a major target of Congress in its regulatory reform efforts. There are two main sources of dissatisfaction: First, cleanups of hazardous wastes are expensive, averaging $25.7 million per site. Superfund expenditures increased from under $400 million in 1985 to over $1.4 billion in 1995 and continue to be above the …
Regulating The Regulators, W. Kip Viscusi
Regulating The Regulators, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
Since the 1970s, there has been a tremendous growth in government regulation pertaining to risk and the environment. These efforts have emerged quite legitimately because market processes alone cannot fully address risk-related concerns.' Without some kind of regulation or liability, for example, firms lack appropriate incentives to restrict their pollution. Similarly, when products or activities are extremely risky, if people are not cognizant of the risks they face, the firms generating the hazards may not have adequate incentives to issue warnings. To solve these problems, regulatory agencies have mounted a wide variety of efforts to improve the quality of the …
Improving Shareholder Monitoring Of Corporate Management By Expanding Statutory Access To Information, Randall Thomas
Improving Shareholder Monitoring Of Corporate Management By Expanding Statutory Access To Information, Randall Thomas
Vanderbilt Law School Faculty Publications
A central issue in contemporary corporate law is the effectiveness of shareholders as monitors of corporate management. For example, in a series of recent articles, legal scholars have debated whether the rapid growth in the equity ownership positions of institutional investors, the relative stability of their shareholdings in each company, and their increased activism in corporate governance matters, will lead to better monitoring by shareholders and improved corporate performance. However, two predicates to effective shareholder monitoring are that dispersed investors have information about the companies they invest in and that they can communicate this information to other investors so that …
The Practice Of Dissent In The Supreme Court, Kevin M. Stack
The Practice Of Dissent In The Supreme Court, Kevin M. Stack
Vanderbilt Law School Faculty Publications
The United States Supreme Court's connection to the ideal of the rule of law is often taken to be the principal basis of the Court's political legitimacy. In the Supreme Court's practices, however, the ideal of the rule of law and the Court's political legitimacy do not always coincide. This Note argues that the ideal of the rule of law and the Court's legitimacy part company with respect to the Court's practice of dissent. Specifically, this Note aims to demonstrate that the practice of dissent-the tradition of Justices publishing their differences with the judgment or the reasoning of their peers--cannot …
Having It Both Ways: Proof That The U.S. Supreme Court Is "Unfairly" Prosecution-Oriented, Christopher Slobogin
Having It Both Ways: Proof That The U.S. Supreme Court Is "Unfairly" Prosecution-Oriented, Christopher Slobogin
Vanderbilt Law School Faculty Publications
If the assertions that this essay makes about the Court's "unfair" prosecution-orientation withstand scrutiny," two further conclusions might follow. First, the highest court in the country is so fixated on ensuring that a particular side wins that it is willing with some frequency to sacrifice the most basic attribute of any court worthy of the name-the appearance of fairness. This conclusion is a much more fundamental challenge to the Court's integrity than is the simple acknowledgement that a majority of the Justices are biased in favor of the government. Second, to the extent the Court's unfairness becomes common knowledge, its …
Testilying: Police Perjury And What To Do About It, Christopher Slobogin
Testilying: Police Perjury And What To Do About It, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Police, like people generally, lie in all sorts of contexts for all sorts of reasons. This article has focused on police lying designed to convict individuals the police think are guilty. Strong measures are needed to reduce the powerful incentives to practice such testilying and the reluctance of prosecutors and judges to do anything about it. Among them might be the adoption of rewards for truth telling, the redefinition of probable cause, and the elimination of the exclusionary rule and its insidious effect on the resolve of legal actors to implement the commands of the Constitution. Ultimately, however, the various …
Enlightening The Religion Clauses, Suzanna Sherry
Enlightening The Religion Clauses, Suzanna Sherry
Vanderbilt Law School Faculty Publications
I have argued that the government may not single out any irrational beliefs for preferential treatment, nor is it required to treat alternative epistemologies as favorably as Enlightenment rationality. Both history and practical considerations support the notion that the Constitution rejects epistemological pluralism in favor of the primacy of reason. There is no evidence that the religion clauses are an exception to this basic principle; indeed, for the founding generation, pre-Enlightenment religion was the primary--and perhaps the only---example of a nonrational epistemology. If we allow government decisions to be made on the basis of, or influenced by, premises and conclusions …
The Sleep Of Reason, Suzanna Sherry
The Sleep Of Reason, Suzanna Sherry
Vanderbilt Law School Faculty Publications
A very strange thing is happening in legal academia. The left and the right have joined forces, and the center is under attack. What makes this so unusual is that law has traditionally been a field of centrists. The common law background, drummed into every first year law student, tends to leave lawyers with a taste for incremental rather than sudden change.' Further experience with the doctrine of stare decisis and the methods of legal reasoning only strengthens this tendency. Even those students who come in eager to change the world rarely survive more than a few years in practice …
Complexity Theory As A Paradigm For The Dynamical Law-And-Society System: A Wake-Up Call For Legal Reductionism And The Modern Administrative State, J.B. Ruhl
Vanderbilt Law School Faculty Publications
This article is the first in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. It builds the basic model of CAS and maps it onto legal systems, offering some suggestions for what it means in terms of legal institution and instrument design.
The Barking Dog, Suzanna Sherry
The Barking Dog, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Professor Tushnet, and indeed many of the participants in this symposium, seem to believe that United States v. Lopez will have some lasting significance. Those participants who disagree have suggested that the case's lack of significance will stem from inadequacies of the test set out by the Court: it is easily evaded by Congress, or it does not vary much from prior cases, or it applies only in narrow circumstances. I agree that Lopez will have little significance, but its minimal impact has little to do with the specifics of the test. Instead, I believe that Lopez will join a …
Guardians: A Research Note, Chris Guthrie, Lawrence M. Friedman, Joanna L. Grossman
Guardians: A Research Note, Chris Guthrie, Lawrence M. Friedman, Joanna L. Grossman
Vanderbilt Law School Faculty Publications
Guardianship goes back quite far in legal history; it has been a feature of American law since the colonial period. Something like guardianship is a necessity in a system that recognizes private ownership of property, while dividing the world into those who are, and those who are not, sui juris-that is, fully capable of acting on their own. The boundaries between these two domains can be quite indistinct. Defining who is insane or incompetent can be especially problematic because these categories are socially and culturally variable. Most people committed in 1900, for example, would hardly be considered insane today; they …
Malpractice And Environmental Law: Should Environmental Law "Specialists" Be Worried?, J.B. Ruhl
Malpractice And Environmental Law: Should Environmental Law "Specialists" Be Worried?, J.B. Ruhl
Vanderbilt Law School Faculty Publications
This article examines the field of environmental law as a potential minefield for malpractice claims given its complex and dynamic nature. The article outlines principles for malpractice law applied to environmental law, based on malpractice principles applied in the tax and patent fields.
The Pariah Principle, Suzanna Sherry, Daniel A. Farber
The Pariah Principle, Suzanna Sherry, Daniel A. Farber
Vanderbilt Law School Faculty Publications
The Supreme Court's recent decision in Romer v. Evans' has caused both joy and consternation. Among legal scholars, however, it has mostly engendered puzzlement. The Court explicitly avoided the most doctrinally plausible grounds for invalidating Colorado's ban on anti-discrimination protections for homosexuals. Instead it purported to strike down the state constitutional amendment under minimal scrutiny or rational basis review. The word on the street-or, in the case of lawyers and law professors, the word on the internet-is that Romer cannot mean what it says, but instead must be a way-station to declaring homosexuality a quasi-suspect classification like gender or illegitimacy. …
The Fitness Of Law: Using Complexity Theory To Describe The Evolution Of Law And Society And Its Practical Meaning For Democracy, J.B. Ruhl
Vanderbilt Law School Faculty Publications
This article is the second in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. Building on the model outlined in the first installment (in the Duke Law Journal), this work develops an evolutionary theory of legal systems as CAS. It suggests that long-term fitness of the legal system will require use of innovative, adaptive legal institutions and instruments.
The Most Dangerous Justice: The Supreme Court At The Bar Of Mathematics, Paul H. Edelman, Jim Chen
The Most Dangerous Justice: The Supreme Court At The Bar Of Mathematics, Paul H. Edelman, Jim Chen
Vanderbilt Law School Faculty Publications
We analyze the relative voting power of the Justices based upon Supreme Court decisions during October Term 1994 and October Term 1995. We take two approaches, both based on ideas derived from cooperative game theory. One of the measures we use has been used in connection with voting rights cases. After naming the Most Dangerous Justice, we conclude by identifying and explaining the inverse relationship between seniority and voting power.
Mistake Of Federal Criminal Law: A Study Of Coalitions And Costly Information, Erin O'Connor
Mistake Of Federal Criminal Law: A Study Of Coalitions And Costly Information, Erin O'Connor
Vanderbilt Law School Faculty Publications
This article analyzes Supreme Court and other federal court cases, to explain the seemingly disparate incorporation of mistake of law excuses into federal criminal statutes. Most of the cases can be explained from an information cost perspective. If an easily separable subset of the regulated population cannot be induced to learn their legal obligations given credibly low prior probabilities and high information costs, they are excused from criminal liability. Moreover, when criminal statutes are vulnerable to constituent protest, courts require that enforcers increase awareness of the law through information subsidies rather than convicting the ignorant. At least with mistake of …
The Road Less Taken: Annulment At The Turn Of The Century, Chris Guthrie, Joanna Grossman
The Road Less Taken: Annulment At The Turn Of The Century, Chris Guthrie, Joanna Grossman
Vanderbilt Law School Faculty Publications
It is hardly surprising that certain legal institutions--adoption, wills, and guardianship--have lasted through the centuries. Each meets a different, seemingly timeless need: providing parenting for orphans or abandoned children, distributing property at death, and dealing with legal incapacity, respectively. Similarly, divorce, though it appeared somewhat later, took hold and persisted for an obvious reason-the increasing demand for a legally sanctioned way to terminate broken marriages. The endurance of annulment, however, particularly in the face of increasingly liberalized divorce laws, defies easy explanation. The existence of annulment prior to the mid-nineteenth century is easily explained. Until 1857, England was a "divorceless …
The Elephant And The Four Blind Men: The Burger Court And Its Federal Tax Decisions, Beverly I. Moran, Daniel M. Schneider
The Elephant And The Four Blind Men: The Burger Court And Its Federal Tax Decisions, Beverly I. Moran, Daniel M. Schneider
Vanderbilt Law School Faculty Publications
All the federal tax decisions of the Burger Court are reviewed in order to demonstrate that widely held beliefs about statutory interpretation in tax cases are misleading. For example, although the literature asserts that courts do not distinguish between legislative and interpretive regulations, the Burger Court did give greater deference to legislative regulations. Further, despite some Justices antipathy to legislative history, the Burger Court relied heavily on legislative histories in making its decisions. In addition, the widely held view that the Court eschews tax controversies was found false when compared to other business areas.
A Black Critique Of The Internal Revenue Code, Beverly I. Moran, William Whitford
A Black Critique Of The Internal Revenue Code, Beverly I. Moran, William Whitford
Vanderbilt Law School Faculty Publications
Using Census data and the Survey of Income Program participation (SIPP), the authors use social science methodology to show that blacks pay more federal income tax than whites at the same income levels.
Stratified Juror Selection: Cross-Section By Design, Nancy J. King, G. Thomas Munsterman
Stratified Juror Selection: Cross-Section By Design, Nancy J. King, G. Thomas Munsterman
Vanderbilt Law School Faculty Publications
Of the various selection methods that contribute to the underrepresentation of members of racial and ethnic minority groups on juries, peremptory challenges have attracted the most attention in recent years. Yet gains in diversity from regulating, or even eliminating, peremptory challenges are necessarily limited by the composition of the venire from which jurors are chosen. This article describes methods of constructing lists of veniremembers and qualified jurors used by some courts to restore the racial and ethnic diversity that is missing from the primary source lists or is eroded in the process of summoning and qualification. It also evaluates potential …
Nameless Justice: The Case For The Routine Use Of Anonymous Juries In Criminal Trials, Nancy J. King
Nameless Justice: The Case For The Routine Use Of Anonymous Juries In Criminal Trials, Nancy J. King
Vanderbilt Law School Faculty Publications
We ask a lot of our jurors. The financial and emotional burdens of jury duty can be significant even in mundane cases. Deciding another's fate is often a trying ordeal, aggravated by unintelligible instructions, hostile attorneys or court personnel, miserable working conditions, and interminable delays.1 The voir dire process may require jurors to reveal intimate, embarrassing, or damning information about themselves and their families that they would not voluntarily choose to reveal.2 Confronted with allegations of violence, injury, or abuse, some jurors become traumatized or ill.3 On top of all of this jury service exposes jurors, their families, and their …
Juror Delinquency In Criminal Trials In America, 1796-1996, Nancy J. King
Juror Delinquency In Criminal Trials In America, 1796-1996, Nancy J. King
Vanderbilt Law School Faculty Publications
This article examines two aspects of the jury system that have attracted far less attention from scholars than from the popular press: avoidance of jury duty by some citizens, and misconduct while serving by others. Contemporary reports of juror shortages and jury dodging portray a system in crisis.' Coverage of recent high-profile cases suggests that misconduct by jurors who do serve is common. In the trial of Damian Williams and Henry Watson for the beating of Reginald Denny, a juror was kicked off for failing to deliberate; Exxon, Charles Keating, and the man accused of murdering Michael Jordan's father all …
"Duel" Diligence: Second Thoughts About The Supremes As The Sultans Of Swing, Paul H. Edelman, Jim Chen
"Duel" Diligence: Second Thoughts About The Supremes As The Sultans Of Swing, Paul H. Edelman, Jim Chen
Vanderbilt Law School Faculty Publications
We respond to Professor Lynn A. Baker's criticisms of our article, The Most Dangerous Justice: The Supreme Court at the Bar of Mathematics. Professor Baker fundamentally misunderstands our measure of Supreme Court voting power. Moreover, she erroneously presumes that the "median Justice" wields the bulk of the Court's power. Even if there were a median Justice, it is far from clear whether he would be the Most Dangerous Justice. We conclude with a clarification of the median voter theorem and its implications for the distribution of voting power within the Supreme Court.
An Alternative To Ready, Fire, Aim: A New Framework To Link Environmental Targets In Environmental Law, Michael P. Vandenbergh
An Alternative To Ready, Fire, Aim: A New Framework To Link Environmental Targets In Environmental Law, Michael P. Vandenbergh
Vanderbilt Law School Faculty Publications
This Article begins with a brief overview of the state of the environment and the lessons learned from the early development of the command and control system. It then explores recent reform proposals and the scholarship on the democratic impact of means-based approaches. The Article next examines the new model that is emerging in the Netherlands and other countries, and identifies the critical feature of the new model: the development of context for environmental decisionmaking at each of the three levels discussed above. The Article concludes by analyzing the implications of this Framework Approach for the environmental debate and for …
Pain And Suffering: Damages In Search Of A Sounder Rationale, W. Kip Viscusi
Pain And Suffering: Damages In Search Of A Sounder Rationale, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
This paper will address pain and suffering generally and will not distinguish these different potential components of pain and suffering damages. Section 1 presents the theoretical foundations for damages awards, including both the deterrence and compensation objectives. Section 2 explores some practical rationales for pain and suffering damages, such as the omission of legal fees as a component of damages. Section 3 examines the extent to which pain and suffering awards vary systematically with the extent and nature of the injury as opposed to simply being random acts of capricious juries. Since much of the interest in pain and suffering …
Individual Rationality, Hazard Warnings, And The Foundations Of Tort Law, W. Kip Viscusi
Individual Rationality, Hazard Warnings, And The Foundations Of Tort Law, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
If all people were fully rational and cognizant of all the risks they faced, then they would always select an efficient level of safety in all their activities and other choices. Thus people would trade off the potential benefits of the risky behavior against the costs, including the risks to life and limb, and select the activity and product mix that best promoted their welfare. In such a world, there would not only be no need for hazard warnings, but there also would be no need for liability of any kind. Purchasers of hazardous products, for example, would always value …
Workers' Compensation And Injury Duration: Evidence From A Natural Experiment, W. Kip Viscusi, Bruce D. Meyer, David L. Durbin
Workers' Compensation And Injury Duration: Evidence From A Natural Experiment, W. Kip Viscusi, Bruce D. Meyer, David L. Durbin
Vanderbilt Law School Faculty Publications
This paper examines the effect of workers' compensation on time out of work. It introduces a "natural experiment" approach of comparing individuals injured before and after increases in the maximum weekly benefit amount. The increases examined in Kentucky and Michigan raised the benefit amount for high-earnings individuals by approximately 50 percent, while low-earnings individuals, who were unaffected by the benefit maximum, did not experience a change in their incentives. Time out of work increased for those eligible for the higher benefits and remained unchanged for those whose benefits were constant. The estimated duration elasticities are clustered around 0.3-0.4.
Is The Radical Critique Of Merit Anti-Semitic?, Suzanna Sherry, Daniel A. Farber
Is The Radical Critique Of Merit Anti-Semitic?, Suzanna Sherry, Daniel A. Farber
Vanderbilt Law School Faculty Publications
Conventional concepts of merit are under attack by some Critical Legal Scholars, Critical Race Theorists, and radical feminists. These critics contend that "merit" is only a social construct designed to maintain the power of dominant groups. This Article challenges the reductionist view that merit has no meaning except as a tool for those in power to perpetuate the existing social order. The authors observe that certain traditionally oppressed groups, most notably Jews and Asian Americans, are disproportionately represented in some desirable economic and educational positions. They have in that sense "succeeded" beyond the supposedly dominant majority. The economic and educational …
Our Unconstitutional Senate, Suzanna Sherry
Our Unconstitutional Senate, Suzanna Sherry
Vanderbilt Law School Faculty Publications
In the race to the bottom that characterizes this Symposium, I cast my vote for Article I, section 3: "The Senate of the United States shall be composed of two Senators from each State .... Indeed, were this provision not unequivocally enshrined in the Constitution itself, it would undoubtedly be unconstitutional, for, as the United States Supreme Court has recognized, it is in conflict with the most basic principles of democracy underlying our Constitution and the form of government it establishes.