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

Law Commons

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

Articles 1 - 30 of 62

Full-Text Articles in Law

The Politics Of Merit Selection, Brian T. Fitzpatrick Jan 2009

The Politics Of Merit Selection, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In this Article, I undertake an evaluation of a method of judicial selection known as "merit selection." The merit system is distinctive from the other systems of judicial selection in the powerful role it accords lawyers. Proponents of the merit system contend that it is superior to the other forms of judicial selection -- elections or appointment by elected officials -- because lawyers are more likely to select judges on the basis of "merit" and less likely to select judges on the basis of "politics" (i.e., the personal ideological preferences of judicial candidates) than are voters or elected officials. But …


Using Criminal Punishment To Serve Both Victim And Social Needs, Erin O'Connor Jan 2009

Using Criminal Punishment To Serve Both Victim And Social Needs, Erin O'Connor

Vanderbilt Law School Faculty Publications

In this article we propose changing the manner in which control rights over criminal sanctions are distributed. This modest change has the potential to increase victim well-being without interfering with social needs. Specif ically, victims should have the right to determine whether an off ender will serve the last ten to twenty percent of his prison term. The control right can do more than help restore a sense of victim empowerment: it will likely encourage voluntary victim- offender mediation (VOM), which has been demonstrated to assist the emotional healing process f or victims while perhaps decreasing recidivism rates. Section II …


Will Quants Rule The (Legal) World?, Edward K. Cheng Jan 2009

Will Quants Rule The (Legal) World?, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Professor Ian Ayres, in his new book, Super Crunchers, details the brave new world of statistical prediction and how it has already begun to affect our lives. For years, academic researchers have known about the considerable and at times surprising advantages of statistical models over the considered judgments of experienced clinicians and experts. Today, these models are emerging all over the landscape. Whether the field is wine, baseball, medicine, or consumer relations, they are vying against traditional experts for control over how we make decisions. For the legal system, the take-home of Ayres's book and the examples he describes is …


Prediction Markets And Law: A Skeptical Account, Rebecca Haw Allensworth Jan 2009

Prediction Markets And Law: A Skeptical Account, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

Enthusiasm for "many minds" arguments has infected legal academia. Scholars now champion the virtues of groupthink, something once thought to have only vices. It turns out that groups often outperform individuals in aggregating information, weighing alternatives, and making decisions. And although some of our legal institutions, such as Congress and juries, already harness the power of the crowd, others could be improved by multiplying the number of minds at work. "Multiplying" implies a simple mathematical formula for improving decisionmaking; modern many minds arguments are more sophisticated than that. They use incentive analyses, game theory, and statistics to study how and …


Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman Jan 2009

Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false because Congress is unlikely to think about the delegation of interpretive authority at all, or in the way that the Court imagines. They also contend that the fiction is fraudulent because the Court does actually care about whether Congress intends to delegate interpretive authority in any particular instance, but applies a presumption triggered by statutory ambiguity or a particularized analysis involving factors unrelated to congressional delegation. In …


Transnationalizing Public Law, Ingrid Wuerth Jan 2009

Transnationalizing Public Law, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

I am tasked today with talking about transnationalization, in particular the question of whether public law in the United States is undergoing some process of transnationalization today. My response, based on the work of the U.S. Supreme Court is yes, although probably only in a thin sense. The starting point for discussing this issue is generally the Supreme Court's citation to the laws of other countries in Printz v. United States, Roper v. Simmons, and Lawrence v. Texas. But these examples of comparative public law are controversial, substantively weak in the case of Printz, and relatively case (or issue) specific. …


Remaking The United States Supreme Court In The Courts' Of Appeals Image, Tracey E. George, Chris Guthrie Jan 2009

Remaking The United States Supreme Court In The Courts' Of Appeals Image, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decision making, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decision making capacity but also improve the Court's composition, competence, and functioning.


Of Silos And Constellations: Comparing Notions Of Originality In Copyright Law, Daniel J. Gervais, Elizabeth F. Judge Jan 2009

Of Silos And Constellations: Comparing Notions Of Originality In Copyright Law, Daniel J. Gervais, Elizabeth F. Judge

Vanderbilt Law School Faculty Publications

Originality is a central theme in the efforts to understand human evolution, thinking, innovation, and creativity. Artists strive to be "original," however the term is understood by each of them. It is also one of the major concepts in copyright law. This paper considers the evolution of the notion of originality since 2002 (when one of the coauthors published an article entitled Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law) and continues the analysis, in particular whether the notion of "creative choices," which seems to have substantial normative heft in several jurisdictions, is optimal …


Does Unconscious Racial Bias Affect Trial Judges?, Chris Guthrie, Jeffrey J. Rachlinski, Sheri Lynn Johnson, Andrew J. Wistrich Jan 2009

Does Unconscious Racial Bias Affect Trial Judges?, Chris Guthrie, Jeffrey J. Rachlinski, Sheri Lynn Johnson, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …


In Family Law, Love's Got A Lot To Do With It: A Response To Philip Shaver, Terry A. Maroney Jan 2009

In Family Law, Love's Got A Lot To Do With It: A Response To Philip Shaver, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In a contribution to this Symposium on Law and Emotion: Re-Envisioning Family Law, Phillip Shaver and his co-authors succinctly encapsulate contemporary psychological theory on interpersonal attachment -- primarily parent-child attachment and its role in creating lifelong attachment patterns -- and seek to outline the relevance of such research for both social policy and law. This Comment demonstrates that many areas of family law already seek to cultivate and reward attachment. But attachment is not and cannot be the sole-or even, perhaps, the most important-factor driving most legal determinations. Recognizing the importance of secure attachment does not answer difficult questions about …


Unlearning Fear Of Out-Group Others, Terry A. Maroney Jan 2009

Unlearning Fear Of Out-Group Others, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In this brief Comment, Maroney offers a perspective based in the scientific study of fear and social-group judgment. She discusses research showing that humans display heightened, persistent fear responses to "outgroup" faces, and suggests ways in which such research might inform our assessment of intergroup conflict resolution. Comment responsive to Douglas H. Yarn & Gregory Todd Jones, A Biological Approach to Understanding Resistance to Apology, Forgiveness, and Reconciliation in Group Conflict, 72 Law & Contemp. Probs. 63 (2009).


The False Promise Of Adolescent Brain Science In Juvenile Justice, Terry A. Maroney Jan 2009

The False Promise Of Adolescent Brain Science In Juvenile Justice, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Recent scientific findings about the developing teen brain have both captured public attention and begun to percolate through legal theory and practice. Indeed, many believe that developmental neuroscience contributed to the U.S. Supreme Court’s elimination of the juvenile death penalty in Roper v. Simmons. Post-Roper, scholars assert that the developmentally normal attributes of the teen brain counsel differential treatment of young offenders, and advocates increasingly make such arguments before the courts. The success of any theory, though, depends in large part on implementation, and challenges that emerge through implementation illuminate problematic aspects of the theory. This Article tests the legal …


Of Clusters And Assumptions: Innovation As Part Of A Full Trips Implementation, Daniel J. Gervais Jan 2009

Of Clusters And Assumptions: Innovation As Part Of A Full Trips Implementation, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Because TRIPS introduced a high(er) level of intellectual property protection in a number of developing countries, it provides an opportunity to examine the impact of the introduction of (property) rights on a variety of intangibles in legal systems from which those rights were absent. One question is whether, and if so how, 18th century European rules, updated in concert with other Western nations until 1989, can be successfully integrated into the social, cultural, economic and legal fabric of dozens of developing nations, and how success is measured in that context. TRIPS also allows us to consider the impact of high(er) …


A Derivatives Market In Legal Academia, Paul H. Edelman Jan 2009

A Derivatives Market In Legal Academia, Paul H. Edelman

Vanderbilt Law School Faculty Publications

Building on the success of derivatives markets in the financial arena, I show how similar markets can be used to hedge risk in legal academia. Prudent use of these markets will generate cash, mitigate errors in hiring, and increase the academic prestige of law schools. In short, they can do for legal academia what they have already done to the financial world.


The Captures Clause, Ingrid Wuerth Jan 2009

The Captures Clause, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The Captures Clause of the United States Constitution gives Congress the power to "make Rules concerning Captures on Land and Water." A variety of courts, scholars, politicians and others have recently cited the Clause to support conflicting arguments about the scope of Congress’s power to initiate and prosecute war. Some claim or assume that the Captures Clause gives Congress power over the taking and detention of people, while others conclude that the power is limited to property only. Similarly, those who view Congress’s power broadly understand the Captures Clause as giving Congress the power to determine what (or whom) may …


Ten Fingers, Ten Toes: Newborn Screening For Untreatable Disorders, Ellen Wright Clayton Jan 2009

Ten Fingers, Ten Toes: Newborn Screening For Untreatable Disorders, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

This movie makes two important points despite its admitted unreality. The first, which the screen writer probably did not fully appreciate at the time, is that genetic testing cannot now and probably will never be able to predict with complete certainty the occurrence and course of complex diseases. It is not true that "Genes-R-Us." Rather, we are the products of complex interactions of our genes, the genomes of other organisms (many of which we live in relation with), and the environment, broadly understood to include the air we breathe, the water we drink, the food we eat, the drugs we …


Rethinking The Federal Role In State Criminal Justice, Nancy J. King, Joseph L. Hoffmann Jan 2009

Rethinking The Federal Role In State Criminal Justice, Nancy J. King, Joseph L. Hoffmann

Vanderbilt Law School Faculty Publications

This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that …


The Tangled Web Of Ugc: Making Copyright Sense Of User-Generated Content, Daniel J. Gervais Jan 2009

The Tangled Web Of Ugc: Making Copyright Sense Of User-Generated Content, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Even as a mere conceptual cloud, the term "user-generated content" is useful to discuss the societal shifts in content creation brought about by the participative web and perhaps best epitomized by the remix phenomenon. This Article considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation-the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work …


Remaking The United States Supreme Court In The Courts' Of Appeals Image, Chris Guthrie, Tracey E. George Jan 2009

Remaking The United States Supreme Court In The Courts' Of Appeals Image, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decision making, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decision making capacity but also improve the Court's composition, competence, and functioning.


The Political Economy Of Energy And Its Implications For Climate Change Legislation, Jim Rossi Jan 2009

The Political Economy Of Energy And Its Implications For Climate Change Legislation, Jim Rossi

Vanderbilt Law School Faculty Publications

Public choice themes have arisen throughout the history of U.S. energy regulation and continue to be relevant today, particularly with widespread discussion of deregulation and increased attention to climate change. This Article surveys how public choice themes are relevant to understanding a host of issues of importance to the electric power industry today, including the structure of the industry, the significance of wholesale markets, and the division of regulatory power between state and federal authorities. The Article highlights how an understanding of how public choice has contributed to these features of the electric power industry will prove important to the …


Chevron's Mistake, Lisa Schultz Bressman Jan 2009

Chevron's Mistake, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

"Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc." asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation-whether intentionalism, purposivism, or textualism-and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as …


Putting The Law Back In Constitutional Law, Suzanna Sherry Jan 2009

Putting The Law Back In Constitutional Law, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Taking a cue from Professor Laurence Tribe's decision to abandon the third edition of his constitutional law treatise, the organizers of this symposium have asked us to address whether constitutional law is in crisis. I am agnostic on that question, although I think that there has been a turn in the wrong direction. But if there is a crisis, I know who to blame. If constitutional law is in crisis, it is our fault. The legal academy has erased the distinction between law and politics, used its expertise for political advantage rather than for elucidation, and mis-educated a generation of …


Mr. Sunstein's Neighborhood: Won't You Be Our Co-Author?, Tracey E. George, Paul H. Edelman Jan 2009

Mr. Sunstein's Neighborhood: Won't You Be Our Co-Author?, Tracey E. George, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In Six Degrees of Cass Sunstein: Collaboration Networks in Legal Scholarship (11 Green Bag 2d 19 (2007)) we began the study of the collaboration network in legal academia. We concluded that the central figure in the network was Professor Cass Sunstein of Harvard Law School and proceeded to catalogue all of his myriad co-authors (so-called Sunstein 1's) and their co-authors (Sunstein 2's). In this small note we update that catalogue as of August 2008 and take the opportunity to reflect on this project and its methodology.


Corporate Voting, Paul H. Edelman, Robert B. Thompson Jan 2009

Corporate Voting, Paul H. Edelman, Robert B. Thompson

Vanderbilt Law School Faculty Publications

Discussion of shareholder voting frequently begins against a background of the democratic expectations and justifications present in decision-making in the public sphere. Directors are assumed to be agents of the shareholders in much the same way that public officers are representatives of citizens. Recent debates about majority voting and shareholder nomination of directors illustrate this pattern. Yet the corporate process differs in significant ways, partly because the market for shares permits a form of intensity voting and lets markets mediate the outcome in a way that would be foreign to the public setting and partly because the shareholders' role is …


Environmental Law, Rachael Anderson-Watts, Naeha Dixit, Christopher J. Dunsky Jan 2009

Environmental Law, Rachael Anderson-Watts, Naeha Dixit, Christopher J. Dunsky

Vanderbilt Law School Faculty Publications

The decisions of the Michigan Supreme Court and the Michigan Court of Appeals during the Survey period, May 23, 2007 to July 30, 2008, did not dramatically change the course of environmental law in Michigan, nor did they contain any major surprises. The state Supreme Court's decision in Michigan Citizens for Water Conservation v. Nestl Waters North America, Inc. is the most significant decision in the Survey period because it held that plaintiffs in Michigan Environmental Protection Act (MEPA) cases must now satisfy federal standing requirements. Although the Nestl9 decision may make it more difficult for ordinary citizens to use …


The End Of Objector Blackmail?, Brian T. Fitzpatrick Jan 2009

The End Of Objector Blackmail?, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Courts and commentators have long been concerned with holdout problems in the law. This Article focuses on a holdout problem in class action litigation known as objector “blackmail.” Objector blackmail occurs when individual class members delay the final resolution of class action settlements by filing meritless appeals in the hope of inducing class counsel to pay them a side settlement to drop their appeals. It is thought that class counsel pay these side settlements because they cannot receive their fee awards until all appeals from the settlement are resolved. Although several solutions to the blackmail problem have been proposed, both …


The Regulation Of Sovereign Wealth Funds: The Virtues Of Going Slow, Amanda Rose, Richard A. Epstein Jan 2009

The Regulation Of Sovereign Wealth Funds: The Virtues Of Going Slow, Amanda Rose, Richard A. Epstein

Vanderbilt Law School Faculty Publications

Any symposium on private-equity firms and the going private phenomenon would be incomplete without discussion of Sovereign Wealth Funds (SWFs). These government owned investment vehicles have and will continue to play an important role in the going private phenomenon. SWFs have not only helped fuel that phenomenon through their participation as limited partners in private-equity funds and hedge funds, but their massive capital infusions into ailing financial institutions and private-equity firms in the wake of the subprime mortgage crisis may, in a very real sense, save it. It is not hyperbolic to suggest that the future of private equity - …


Exceptional Engagement: Protocol I And A World United Against Terrorism, Michael A. Newton Jan 2009

Exceptional Engagement: Protocol I And A World United Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

This article challenges the prevailing view that U.S. "exceptionalism" provides the strongest narrative for the U.S. rejection of Additional Protocol I to the 1949 Geneva Conventions. The United States chose not to adopt the Protocol in the face of intensive international criticism because of its policy conclusions that the text contained overly expansive provisions resulting from politicized pressure to accord protection to terrorists who elected to conduct hostile military operations outside the established legal framework. The United States concluded that the commingling of the regime criminalizing terrorist acts with the jus in bello rules of humanitarian law would be untenable …


Some Observations On The Future Of U.S. Military Commissions, Michael A. Newton Jan 2009

Some Observations On The Future Of U.S. Military Commissions, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Obama Administration confronts many of the same practical and legal complexities that interagency experts debated in the fall of 2001. Military commissions remain a valid, if unwieldy, tool to be used at the discretion of a Commander-in-Chief. Refinement of the commission procedures has consumed thousands of legal hours within the Department of Defense, as well as a significant share of the Supreme Court docket. In practice, the military commissions have not been the charade of justice created by an overpowerful and unaccountable chief executive that critics predicted. In light of the permissive structure of U.S. statutes and the framework …


On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos Jan 2009

On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana constitute the de facto governing law in thirteen states. This Article argues that these state laws and (most) related regulations have not been, and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress's preemption power by the anti-commandeering rule, properly understood. Just as importantly, these state laws matter, in a …