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Articles 1 - 30 of 36
Full-Text Articles in Law
Constructive Cigarette Regulation, W. Kip Viscusi
Constructive Cigarette Regulation, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
Professor W. Kip Viscusi argues for a move away from the adversarial approach to tobacco regulation, an approach that is currently embodied in class action lawsuits and the proposed broadening of FDA regulatory power over cigarettes. In this Article, he suggests that the FDA should take a constructive role in fostering technological innovations to promote cigarette safety, in much the same way that the government currently fosters safety improvements in motor vehicles and jobs. Professor Viscusi claims that the objective of government policy should be to promote informed consumer risk taking-an approach which recognizes that adult consumers have a right …
What Juries Can't Do Well: The Jury's Performance As A Risk Manager, W. Kip Viscusi, Reid Hastie
What Juries Can't Do Well: The Jury's Performance As A Risk Manager, W. Kip Viscusi, Reid Hastie
Vanderbilt Law School Faculty Publications
Can juries handle complex cases? One way to frame this question in behavioral science terms is to ask: What tasks can juries perform well and what tasks will they perform poorly? Our basic precept is that the legal system should ask juries to perform tasks that they are good at performing and should not require juries to carry out tasks that they cannot perform well. A second guiding theme in our approach to the issue of jury competency is that the most relevant, most useful analyses of jury performance are based on empirical observations and data, not on rational analyses …
Psychiatric Evidence In Criminal Trials: To Junk Or Not To Junk?, Christopher Slobogin
Psychiatric Evidence In Criminal Trials: To Junk Or Not To Junk?, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This Article begins, in Part I, with a brief review of the past four decades" of psychiatric and psychological testimony in criminal trials (henceforth referred to simply as "psychiatric testimony"). Although this review cannot be called comprehensive, it does make clear that, contrary to what the popular literature would have us believe, psychiatric innovation is neither at an all time high nor the prevalent form of opinion testimony by mental health professionals. At the same time, such "nontraditional" expert opinion from clinicians, on those rare occasions when it does occur, has changed over the past few decades in both content …
Independent Judges And Independent Justice, Suzanna Sherry
Independent Judges And Independent Justice, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Professor Currie's article [See David P. Currie, "Separating Judicial Power", 61 LAW & CONTEMPORARY PROBLEMS 7 (Summer 1998) ] discusses historical attempts to limit judicial independence. I consider the converse: how judges have exercised their independence. This essay provides a brief historical overview of judges using their independence to implement their own view of justice, often contrary to both popular sentiment and legislative will.
Justice O'Connor's Dilemma: The Baseline Question, Suzanna Sherry
Justice O'Connor's Dilemma: The Baseline Question, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Many commentators view City of Boerne v. Flores,' in which a divided Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), as a major defeat in the battle for religious freedom in the United States.' Be that as it may, Flores is also an opportunity to begin a discussion on another issue entirely: the appropriate relationship between dissenting Justices and majority opinions. Should a Justice who disagrees with a majority of the Court nevertheless accept the majority's holding as defining the law for purposes of establishing a baseline for subsequent questions? In order to understand the question …
Religion And The Public Square: Making Democracy Safe For Religious Minorities, Suzanna Sherry
Religion And The Public Square: Making Democracy Safe For Religious Minorities, Suzanna Sherry
Vanderbilt Law School Faculty Publications
In 1995, Judge Richard Posner ruled that the state of Illinois could not celebrate Good Friday as a statewide holiday for the public schools.' Closing all Illinois public schools on Good Friday, Posner declared, violated the Establishment Clause of the Constitution by "plac[ing] the support of the state behind a wholly sectarian holiday." The Ninth Circuit has disagreed, upholding Good Friday as a state holiday in Hawaii. Federal courts have similarly reached varying conclusions about the constitutionality of other symbolic endorsements of Christianity, including the use of a cross as part of a government seal, the inclusion of the phrase …
Redistribution Through Discriminatory Taxes: A Contractarian Explanation Of The Role Of The Courts, Erin O'Connor
Redistribution Through Discriminatory Taxes: A Contractarian Explanation Of The Role Of The Courts, Erin O'Connor
Vanderbilt Law School Faculty Publications
What role should courts serve regarding wealth redistribution through tax provisions? Perhaps they should base decisions on efficiency grounds, protecting society from the transactions costs and other wealth reductions associated with rent seeking. Perhaps they should protect those chosen to bear the burden of discriminatory treatment regardless of social costs, out of fairness concerns for equal treatment. At a minimum, however, the courts should prohibit taxes that would be unanimously condemned ex ante. In this Article, we show, primarily with cases treating progressive taxation, discriminatory property taxes, and taxes on businesses, that the courts have chosen only this third minimalist …
The Struggle Against Hate Crime: Movement At A Crossroads, Terry A. Maroney
The Struggle Against Hate Crime: Movement At A Crossroads, Terry A. Maroney
Vanderbilt Law School Faculty Publications
The 1980s and 1990s witnessed an extraordinary amount of police, legislative, judicial, scholarly, and community activity around hate crime. Such activity was attributable to a new "anti-hate-crime movement," conditions for which were created by the convergence in previous decades of two very different social movements - civil rights and victims' rights. This anti-hate-crime movement has been radiply assimilated into the institutions of criminal justice, with the result that anti-hate-crime measures now reflect the culture and priorities of those institutions. The civil rights and victims' rights movements created collective beliefs, structural resources, and political opportunities that facilitated the emergence of a …
Judicial Independence: Playing Politics With The Constitution, Suzanna Sherry
Judicial Independence: Playing Politics With The Constitution, Suzanna Sherry
Vanderbilt Law School Faculty Publications
I begin with a question: why have a conference on judicial independence? To find the answer, one need only read the newspapers. Judicial independence-as well as its political counterpart, judicial impeachment-is a hot topic these days because some in Congress have threatened to impeach judges for delivering unpopular decisions. So I take as my subject in this Essay the question of whether the constitutional provisions safeguarding judicial independence protect judges against impeachment for issuing rulings that Congress considers erroneous or even loathsome. When we talk about judicial independence, we have to separate two questions. The first question is the extent …
Estimation Of Revealed Probabilities And Utility Functions For Product Safety Decisions, W. Kip Viscusi, William N. Evans
Estimation Of Revealed Probabilities And Utility Functions For Product Safety Decisions, W. Kip Viscusi, William N. Evans
Vanderbilt Law School Faculty Publications
Using survey data on consumer product purchases, this paper introduces an approach to estimate jointly individual utility functions and risk perceptions implied by their decisions. The behavioral risk beliefs reflected in consumers risky decisions differ from the stated probabilities given to them in the survey. These results are not consistent with a Bayesian learning model in which the information respondents utilize is restricted to what the survey presents. The results are, however, potentially consistent with models in which prior risk information is influential or models in which people do not act in a fully rational manner.
The Social Costs Of Punitive Damages Against Corporations In Environmental And Safety Torts, W. Kip Viscusi
The Social Costs Of Punitive Damages Against Corporations In Environmental And Safety Torts, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
Legal scholars and judges have long expressed concerns over the unpredictability and arbitrariness of punitive damages awards. Proposed remedies, such as restricting punitive damages to narrowly defined circumstances, have not yet met with success. This paper addresses the threshold issue of whether, on balance, punitive damages have benefits in excess of their costs. There is no evidence of a significant deterrent effect based on an original empirical analysis of a wide range of risk measures for the states with and without punitive damages. These measures included accident rates, chemical spills, medical malpractice injuries, insurance performance, and other outcomes that should …
The Irony Of Deregulatory Takings, Jim Rossi
The Irony Of Deregulatory Takings, Jim Rossi
Vanderbilt Law School Faculty Publications
This is a critical review essay, exploring the thesis advanced by Gregory Sidak and Daniel Spulber in their book Deregulatory Takings and the Regulatory Contract (Cambridge University Press 1997). Sidak and Spulber argue that deregulation of the electric utility and local telephony industries can constitute an unconstitutional taking to the extent the state does not provide compensation for the investment-backed expectations of firms in the industry. In addition, they argue that economic efficiency requires this result. This review takes Sidak and Spulber to task for their reading of the case law. In addition, the review criticizes their argument for giving …
Private Religious Choice In German And American Constitutional Law: Government Funding And Government Religious Speech, Ingrid Wuerth
Private Religious Choice In German And American Constitutional Law: Government Funding And Government Religious Speech, Ingrid Wuerth
Vanderbilt Law School Faculty Publications
The sharply contested religion cases from Germany in the late 1990s...point to problems with our growing reliance on private religious choice analysis that demand our attention in both government funding and speech cases. To understand the problems of funding religious groups in neutral programs, we must back up and ask the foundational question: what goals may the government pursue with its funding? The broader those goals are defined, the greater the potential distortion of private religious choice, through either inclusion or exclusion from the programs. To fully make sense of government funding and the Establishment Clause, we must consider its …
No Cure For A Broken Heart, Daniel J. Sharfstein
No Cure For A Broken Heart, Daniel J. Sharfstein
Vanderbilt Law School Faculty Publications
Davis filed a 42 U.S.C. § 1983 suit pro se for the violation of his constitutional right to privacy, seeking $1.5 million in compensatory and punitive damages. The district court dismissed the claim sua sponte, relying on a section of the newly enacted Prison Litigation Reform Act (PLRA), entitled "Limitation on Recovery": "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." Davis challenged this physical injury requirement on equal protection grounds, but in "Davis …
Why There Is No Defense Of Punitive Damages, W. Kip Viscusi
Why There Is No Defense Of Punitive Damages, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
This paper is a response to the comments by David Luban and Theodore Eisenberg on my article on punitive damages to be published in the Georgetown Law Journal (1998) and entitled "The Social Costs of Punitive Damages against Corporations in Environmental and Safety Tort." Neither of these authors presents any evidence indicating that there is a determent effect of punitive damages. They suggest, however, that there could be retribution objectives or other rationales for punitive damages. In addition, they claim that punitive damages are predictable and that cognitive biases may not tilt juries against corporations. This paper reviews these diverse …
A Contractarian Defense Of Corporate Philanthropy, Margaret M. Blair
A Contractarian Defense Of Corporate Philanthropy, Margaret M. Blair
Vanderbilt Law School Faculty Publications
Statutory and case law make it clear that corporate officers and directors have very wide discretion to direct reasonable amounts of corporate resources toward artistic, educational, and humanitarian causes, even if those causes have only a remote connection (or no obvious connection at all) to the business goals and profitability of the firm. This stance of the law has been defended primarily by reference to an "entity" theory of the firm. By contrast, contractarian legal scholars, who view the corporation in terms of a principal-agent model, with shareholders as principles, and officers and directors as their agents, have argued that …
Who Needs Congress? An Agenda For Administrative Reform Of The Endangered Species Act, J.B. Ruhl
Who Needs Congress? An Agenda For Administrative Reform Of The Endangered Species Act, J.B. Ruhl
Vanderbilt Law School Faculty Publications
This article comprehensively examines the history and content of the numerous administrative reforms of the Endangered Species Act program carried out under the tenure of Department of the Interior Secretary Bruce Babbitt. The assessment is that these reforms provide a tremendous impetus for innovation of species conservation.
Public Choice Theory And The Fragmented Web Of The Contemporary Administrative State, Jim Rossi
Public Choice Theory And The Fragmented Web Of The Contemporary Administrative State, Jim Rossi
Vanderbilt Law School Faculty Publications
In the recent book, Greed, Chaos and Governance: Using Public Choice to Improve Public Law (Yale U. Press 1997), Jerry Mashaw addresses the convergence between public choice and administrative law. This review essay summarizes Mashaw's arguments and explores his use of public choice tools. The review suggests that, absent some unifying theoretical perspective for understanding administrative governance outside of public choice method, little more than rampant pessimism or fragmented lessons about the administrative state can be taken.
The Common Law "Duty To Serve" And Protection Of Consumers In An Age Of Competitive Retail Public Utility Restructuring, Jim Rossi
Vanderbilt Law School Faculty Publications
This article addresses the implications of retail competition in public utility industries, particularly electricity, for utility service obligations. After tracing the history of the common law duty to serve applicable to public utilities, the efficiency of utility service obligations in the context of rate regulation is explored. Retail competition, many suggest, poses a threat to utility service obligations. However, regulators can minimize the inefficiency of traditional utility service obligations without sacrificing the benefits of retail competition if they pay attention to the structural efficiency of competitive retail markets. The article advocates imposition of basic service obligations on the DisCo and …
Teen Smoking Behavior And The Regulatory Environment, Joni Hersch
Teen Smoking Behavior And The Regulatory Environment, Joni Hersch
Vanderbilt Law School Faculty Publications
Professor Hersch argues that most state regulations aimed at fighting teen smoking have had little or no effect. She provides evidence that despite widespread age restrictions on purchasing tobacco, most teens do not consider it difficult for minors to purchase tobacco products within their community. She also presents evidence demonstrating a strong correlation between smoking rates and perceptions about the addictive nature of smoking. These findings suggest that facilitating greater awareness of the addictive power of cigarettes could be effective in curbing teen smoking. She explores the potential for parental restrictions on limiting teen smoking, but provides indications that parents …
Exploring The Mysteries: Can We Ever Know Anything About Race And Tax?, Beverly I. Moran
Exploring The Mysteries: Can We Ever Know Anything About Race And Tax?, Beverly I. Moran
Vanderbilt Law School Faculty Publications
The politics behind tax legislation are explored in order to demonstrate that, rather than being surprising or unexpected, it is easily predictable that federal tax laws would favor whites over blacks.
Silencing Nullification Advocacy Inside The Jury Room And Outside The Courtroom, Nancy J. King
Silencing Nullification Advocacy Inside The Jury Room And Outside The Courtroom, Nancy J. King
Vanderbilt Law School Faculty Publications
Jurors in criminal cases occasionally "nullify" the law by acquitting defendants who they believe are guilty according to the instructions given to them in court. American juries have exercised this unreviewable nullification power to acquit defendants who face sentences that jurors view as too harsh, who have been subjected to what jurors consider to be unconscionable governmental action, who have engaged in conduct that jurors do not believe is culpable, or who have harmed victims whom jurors consider unworthy of protection. Recent reports suggest jurors today are balking in trials in which a conviction could trigger a "three strikes" or …
Developing A Positive Theory Of Decisionmaking On U.S. Courts Of Appeals, Tracey E. George
Developing A Positive Theory Of Decisionmaking On U.S. Courts Of Appeals, Tracey E. George
Vanderbilt Law School Faculty Publications
As the decisions of the United States Courts of Appeals become an increasingly important part of American legal discourse, the debate concerning adjudication theories of the circuit courts gain particular relevance. Whereas, to date, the issue has received mostly normative treatment, this Article proceeds systematically and confronts the positive inquiry: how do courts of appeals judges actually decide cases? The Article proposes theoretically, tests empirically, and considers the implications of, a combined attitudinal and strategic model of en banc court of appeals decision making. The results challenge the classicist judges, legal scholars, and practitioners' normative frameworks, and suggest positive theory's …
Textualism And Judgment, Suzanna Sherry
Textualism And Judgment, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Textualism, like other foundationalist theories such as originalism, purports to be a grand theory of constitutional interpretation, answering all questions with the same single-minded and narrowly constrained technique. The inevitable result is a diminution of what one might call judgment. Judgment is what judges use to decide cases when the answer is not tightly constrained by some interpretive theory. It is an aspect of what others have called prudence, or pragmatism.' But if one has a theory of constitutional interpretation that is supposed to produce clear answers in a relatively mechanical way, there is little room for the exercise of …
Taming The Suburban Amoeba In The Ecosystem Age: Some Do's And Don'ts, J.B. Ruhl
Taming The Suburban Amoeba In The Ecosystem Age: Some Do's And Don'ts, J.B. Ruhl
Vanderbilt Law School Faculty Publications
Urban central cities present a host of environmental problems including, but not limited to, industrial pollution, brownfields, smog, and environmental injustice. Rural and agricultural areas also experience environmental degradations such as pesticide runoff, wetlands conversion, and overgrazing. Between these different bands of lifestyle and land use lie the suburbs, which present their own set of environmental policy issues. This Article focuses on one of those problems: the growth of suburban land area and what it means for emerging notions of ecosystem management and sustainable development at the local land use scale. Part I of the Article provides the demographic and …
The Endangered Species Act And Private Property: A Matter Of Timing And Location, J.B. Ruhl
The Endangered Species Act And Private Property: A Matter Of Timing And Location, J.B. Ruhl
Vanderbilt Law School Faculty Publications
This article examines some of the perverse consequences of the structure of the Endangered Species Act, namely that it deters property owners from conserving threatened species and lacks proactive measures.
The Seven Degrees Of Relevance: Why Should Real-World Environmental Attorneys Care Now About Sustainable Development Policy?, J.B. Ruhl
Vanderbilt Law School Faculty Publications
This article explores the evolution of the concept of "sustainable development" through what I suggest are the "seven degrees" of relevance of legal conceptualizations: (1) translation of concept into norm; (2) uncontestability of the norm; (3) intolerance of violation of the norm; (4) demand for fulfillment of the norm; (5) translation of the norm as policy goal; (6) policy consequences based on the norm; (7) translation into hard law to apply. I suggest that, at the time of the writing (1998), sustainable development was stuck on level five.
Compensating Differentials For Gender-Specific Job Injury Risks, Joni Hersch
Compensating Differentials For Gender-Specific Job Injury Risks, Joni Hersch
Vanderbilt Law School Faculty Publications
Women have largely been excluded from analyses of compensating differentials for job risk since they are predominantly employed in safer, white-collar occupations. New data reveal that their injury experience is considerable. One-third of the total injury and illness cases with days away from work accrue to female workers. Adjusted for employment, women are 71 percent as likely as men to experience an injury or illness. As one would predict on theoretical grounds, these risks generate compensating differentials. Based on gender-specific injury incidence rates for both industry and occupation, I find strong evidence of compensating wage differentials for the job risk …
"Batson" For The Bench? Regulating The Peremptory Challenge Of Judges, Nancy J. King
"Batson" For The Bench? Regulating The Peremptory Challenge Of Judges, Nancy J. King
Vanderbilt Law School Faculty Publications
The choice of whether to adopt or preserve judicial peremptories should not turn on the resolution of one issue. The risk that such challenges will be used to discriminate between judges on the basis of race must be considered along with the other disadvantages of the challenge and weighed against its potential benefits. Nevertheless, if there is one lesson to be learned from the last few decades of scrutiny of the criminal justice system, it is that discretion can and will be used to discriminate. This difficulty weighs heavily against injecting into our justice system additional discretionary opportunities for litigants …
A "Party Satisfaction" Perspective On A Comprehensive Mediation Statute, Chris Guthrie, James Levine
A "Party Satisfaction" Perspective On A Comprehensive Mediation Statute, Chris Guthrie, James Levine
Vanderbilt Law School Faculty Publications
During the past fifteen years, the alternative dispute resolution movement has greatly altered the legal landscape. Courts, legislatures and administrative agencies have enacted more than 2000 laws dealing with mediation and other dispute resolution processes. The National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Bar Association Section of Dispute Resolution have recently formed a unique partnership to assess whether a model or uniform mediation statute might remedy some of the problems caused by the current patchwork of often confusing and conflicting mediation laws. The task of drafting a comprehensive mediation statute poses many challenges. The drafters …