Law Commons^™

The Jim Crow Jury, Thomas W. Frampton

Vanderbilt Law Review

Since the end of Reconstruction, the criminal jury box has both reflected and reproduced racial hierarchies in the United States. In the Plessy era, racial exclusion from juries was central to the reassertion of white supremacy. But it also generated pushback: a movement resisting "the Jim Crow jury" actively fought, both inside and outside the courtroom, efforts to deny black citizens equal representation on criminal juries. Recovering this forgotten history-a counterpart to the legal struggles against disenfranchisement and de jure segregationunderscores the centrality of the jury to politics and power in the post- Reconstruction era. It also helps explain Louisiana's …

Insider Information And The Limits Of Insider Trading, Yesha Yadav

Vanderbilt Law School Faculty Publications

This essay offers brief observations on the internal coherence of the rationales underlying the prohibition against insider trading, taking the opportunity offered by Newman and Salman to reflect on its central policy aims. I do not discuss these cases specifically, or what a resolution by the Supreme Court might mean for the future of insider trading. Scholars and commentators have thoughtfully critiqued Newman alongside the doctrinal whiplash that has followed in its wake. Rather, I take this opportunity to look under the hood of securities trading to examine information flows within the mechanisms by which securities are bought and sold. …

Revisiting The Public Utility, Jim Rossi, Morgan Ricks

Vanderbilt Law School Faculty Publications

This foreword introduces "Revisiting the Public Utility," a series of essays published in a special issue of Yale Journal on Regulation. We cluster the contributions to this issue around public utility regulation’s core rationales and its scope, its implications for innovation and industry stability, and its evolving approach to price regulation. The scholarship represented in this issue challenges the notion that public utility ideas are obsolete or irrelevant to modern issues in economic regulation. It questions whether public utility regulation has fallen short of its goals, and shows that there are some good reasons to question many embedded regulatory practices. …

A Systematic Literature Review Of Individuals' Perspectives On Privacy And Genetic Information In The United States, Ellen W. Clayton, Colin M. Halverson, Nila A. Sathe, Bradley A. Malin

Vanderbilt Law School Faculty Publications

Concerns about genetic privacy affect individuals' willingness to accept genetic testing in clinical care and to participate in genomics research. To learn what is already known about these views, we conducted a systematic review, which ultimately analyzed 53 studies involving the perspectives of 47,974 participants on real or hypothetical privacy issues related to human genetic data. Bibliographic databases included MEDLINE, Web of Knowledge, and Sociological Abstracts. Three investigators independently screened studies against predetermined criteria and assessed risk of bias. The picture of genetic privacy that emerges from this systematic literature review is complex and riddled with gaps. When asked specifically …

Private Governance Responses To Climate Change: The Case Of Global Civil Aviation, Michael P. Vandenbergh, Daniel J. Metzger

Vanderbilt Law School Faculty Publications

This Article explores how private governance can reduce the climate effects of global civil aviation. The civil aviation sector is a major contributor to climate change, accounting for emissions comparable to a top ten emitting country. National and international governmental bodies have taken important steps to address civil aviation, but the measures adopted to date are widely acknowledged to be inadequate. Civil aviation poses particularly difficult challenges for government climate mitigation efforts. Many civil aviation firms operate globally, emissions often occur outside of national boundaries, nations differ on their respective responsibilities, and demand is growing rapidly. Although promising new technologies …

Who Knows What, And When?: A Survey Of The Privacy Policies Proffered By U.S. Direct-To-Consumer Genetic Testing Companies, Christopher Slobogin, James W. Hazel

Vanderbilt Law School Faculty Publications

Direct-to-consumer genetic testing (DTC-GT) companies have proliferated in the past several years. Based on an analysis of genetic material submitted by consumers, these companies offer a wide array of services, ranging from providing information about health and ancestry to identification of surreptitiously-gatheredb iological materials ent in by suspicious spouses. Federal and state laws are ambiguous about the types of disclosures these companies must make about how the genetic information they obtain is collected, used, and shared. In an effort to assist in developing such laws, this Article reports a survey of the privacy policies these companies purport to follow. It …

Environmental Protection Requires More Than Social Resilience, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Achieving the green economy requires taking into account divisive politics and distributive justice.

Valuing The Risk Of Workplace Sexual Harassment, Joni Hersch

Vanderbilt Law School Faculty Publications

Using data on sexual harassment charges filed with the Equal Employment Opportunity Commission, I calculate the risk of sexual harassment by gender, industry, and age and establish that white females, but not nonwhite females, receive a compensating wage differential for exposure to a higher risk of sexual harassment. I use this risk premium to calculate the value of statistical harassment (VSH) in a manner analogous to the calculation of the value of statistical life (VSL). The VSH is around $7.6 million, about three-quarters of the size of the most-commonly cited levels of the VSL, and far above the maximum damages …

Household And Block Level Influences On Residential Fertilizer Use, Michael P. Vandenbergh, Amanda Carrico, Urooj Raja, James C. Fraser

Vanderbilt Law School Faculty Publications

Urban and suburban lawns make up a large share of land use in the US. Maintaining lawns to fulfill aesthetic norms has environmental consequences. In this analysis, we examine household decisions to apply nitrogen-containing lawn fertilizer. Using survey data of 298 households in Nashville, Tennessee, we first examine the prevalence of fertilizer use and the rate of annual nitrogen applied. We find that the resulting distribution is skewed, with the top 20% of the sample applying 56% of the total share of nitrogen. In contrast to this subset of “intensive” fertilizers, 93% of households applied at or below levels recommended …

The Income Elasticity Of Global Values Of A Statistical Life: Stated Preference Evidence, W. Kip Viscusi, Clayton J. Masterman

Vanderbilt Law School Faculty Publications

Countries throughout the world use estimates of the value of a statistical life (VSL) to monetize fatality risks in benefit-cost analyses. However, the vast majority of countries lack reliable revealed preference or stated preference estimates of the VSL. This article proposes that the best way to calculate a population-average VSL for countries with insufficient or unreliable data is to transfer a base VSL from the United States calculated using labor market estimates from Census of Fatal Occupational Injuries data, coupled with adjustments for differences in income between the United States and the country of interest. This approach requires estimation of …

Administrative Law's Political Dynamics, Kent Barnett, Christina L. Boyd, Christopher J. Walker

Vanderbilt Law Review

Over thirty years ago, the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. commanded courts to uphold federal agency interpretations of ambiguous statutes as long as those interpretations are reasonable. This Chevron deference doctrine was based in part on the Court's desire to temper administrative law's political dynamics by vesting federal agencies, not courts, with primary authority to make policy judgments about ambiguous laws Congresscharged the agencies to administer. Despite this express objective, scholars such as Frank Cross, Emerson Tiller, and Cass Sunstein have empirically documented how politics influence circuit court review of agency statutory interpretations …

Taking Antitrust Away From The Courts, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts – made up of …

Topic Modeling The President: Conventional And Computational Methods, J.B. Ruhl, John Nay, Jonathan Gilligan

Vanderbilt Law School Faculty Publications

Legal and policy scholars modeling direct actions into substantive topic classifications thus far have not employed computational methods. To compare the results of their conventional modeling methods with the computational method, we generated computational topic models of all direct actions over time periods other scholars have studied using conventional methods, and did the same for a case study of environmental-policy direct actions. Our computational model of all direct actions closely matched one of the two comprehensive empirical models developed using conventional methods. By contrast, our environmental-case-study model differed markedly from the only empirical topic model of environmental-policy direct actions using …

Appeals By The Prosecution, Nancy J. King, Michael Heise

Vanderbilt Law School Faculty Publications

Scholarly and public debates about criminal appeals have largely taken place in an empiri- cal vacuum. This study builds on our prior empirical work exploring defense-initiated criminal appeals and focuses on criminal appeals by state and federal prosecutors. Exploit- ing data drawn from a recently released national sample of appeals by state prosecutors decided in 2010, as well as data from all appeals by federal prosecutors to the U.S. Courts of Appeals terminated in the years 2011 through 2016, we provide a detailed snapshot of noncapital, direct appeals by prosecutors, including extensive information on crime type, claims raised, type of …

Employee Energy Benefits: What Are They And What Effects Do They Have On Employees?, Michael P. Vandenbergh, Alexander Maki, Emmett Mckinney, Mark A. Cohen, Jonathan M. Gilligan

Vanderbilt Law School Faculty Publications

Employee energy benefits (EEBs), such as subsidies for employee home energy audits and financial incentives for carpooling to work, aim to influence employees’ environmental behaviors outside of work. Exploring these understudied benefits would offer new insights that can enrich theories of employer and employee motivations for engaging in environmental behavior, as well as reveal new strategies for making significant progress on environment goals. By drawing upon employer reports and conducting a survey of 482 US adults employed full-time, we found that there are a wide range of types of EEBs currently offered by employers, and furthermore, they were more likely …

Approaches To Carrier Testing And Results Disclosure In Translational Genomics Research, Ellen Wright Clayton, Kathryn M. Porter, Et Al.

Vanderbilt Law School Faculty Publications

Background: Clinical genome and exome sequencing (CGES) is primarily used to address specific clinical concerns by detecting risk of future disease, clarifying diagnosis, or directing treatment. Additionally, CGES makes possible the disclosure of autosomal recessive and X-linked carrier results as additional secondary findings, and research about the impact of carrier results disclosure in this context is needed.

Methods: Representatives from 11 projects in the clinical sequencing exploratory research (CSER) consortium collected data from their projects using a structured survey. The survey focused on project characteristics, which variants were offered and/or disclosed to participants as carrier results, methods for carrier results …

Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther

Vanderbilt Law School Faculty Publications

In this Symposium issue celebrating his career, Professor Michael Risinger in Leveraging Surprise proposes using "the fundamental emotion of surprise" as a way of measuring belief for purposes of legal proof. More specifically, Professor Risinger argues that we should not conceive of the burden of proof in terms of probabilities such as 51%, 95%, or even "beyond a reasonable doubt." Rather, the legal system should reference the threshold using "words of estimative surprise" -asking jurors how surprised they would be if the fact in question were not true. Toward this goal (and being averse to cardinality), he suggests categories such …

The Future Of The Federal Common Law Of Foreign Relations, Ingrid W. Brunk

Vanderbilt Law School Faculty Publications

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficul- ties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reli- ance upon presidential or congressional action, or by …

An Honest But Fearless Fighter: The Adversarial Ideal Of Public Defenders In 1930s And ’40s Los Angeles, Sara Mayeux

Vanderbilt Law School Faculty Publications

Vercoe's self-description as a courtroom "fighter" illuminates public defenders' professional identity in the United States in the decades after the criminal courts had developed into a modem bureaucracy, but before the Warren Court constitutionalized criminal procedure. Historians have characterized lawyering for the poor as outside the mainstream of adversar- ial legal culture, describing a "two-tiered legal system" in which lawyers celebrated courtroom combat on behalf of paying clients but relegated the indigent to a lesser form of advocacy that valorized "compromise." Comporting with this characterization, legal scholars have portrayed early public defenders as "assembly-line" workers who conducted little factual investigation …

U.S. Conflict Of Laws Involving International Estates And Marital Property: A Critical Analysis Of "Estate Of Charania V. Shulman", Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

A number of states, as well as foreign jurisdictions, impose a community property regime. Under this regime, regardless of the title to property, each spouse is deemed to own a fifty percent interest in assets. When a spouse dies owning property in his own name, the tendency is to treat him as the owner of the asset in full for purposes of the power to dispose of the asset and for transfer tax purposes. However, if the property is community property, then the decedent 's power to dispose of it, and the portion of the property subject to taxation, is …

Legal Deserts: A Multi-State Perspective On Rural Access To Justice, Lauren Sudeall, Lise R. Pruitt, Danielle M. Conway, Michele Statz, Hannah Haksgaard, Amanda L. Kool

Vanderbilt Law School Faculty Publications

Rural America faces an increasingly dire access-to-justice crisis, which serves to exacerbate the already disproportionate share of social problems afflicting rural areas. One critical aspect of the crisis is the dearth of information and research regarding the extent of the problem and its impacts. This Article begins to fill that gap by providing surveys of rural access to justice in six geographically, demographically, and economically varied states: California, Georgia, Maine, Minnesota, South Dakota, and Wisconsin. In addition to providing insights about the distinct rural challenges confronting each of these states, the legal resources available, and existing policy responses, the Article …

Explicit Bias, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In recent decades, legal scholars have advanced sophisticated models for understanding prejudice and discrimination, drawing on disciplines such as psychology, sociology, and economics. These models explain how inequality is implicit in cognition and seamlessly woven into social structures. And yet, obvious, explicit, and overt forms of bias have not gone away. The law does not need empirical methods to identify bias when it is marching down the street in Nazi regalia, hurling misogynist invective, or trading in anti-Muslim stereotypes. Official acceptance of such prejudices may be uniquely harmful in normalizing discrimination. But surprisingly, many discrimination cases ignore explicit bias. Courts …

An Analysis Of Sanctuary Campuses, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

"I am originally from Mexico but have lived in Washington State since I was [nine] months old .... In 2006, as a high school sophomore, I discovered my true immigration status in the United States. I was an undocumented Mexican-American and all of my hopes and dreams seemed to shatter at that point . . . . My parents came to the United States to give their children a better life, and that included an education . . . . When immigration reform does happen, I will then have an opportunity to apply my skills in the workforce without having …

Pricing Lives: International Guideposts For Safety, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Government agencies throughout the world use the value of a statistical life (VSL) to monetise the mortality risk reduction benefits of government policies. The most reliable empirical estimates of the VSL using US labour market data are about US$10 million (year 2015 US dollars). Based on international estimates of the income elasticity of the VSL, one can transfer these values to other countries, leading to my VSL estimate for Australia of US$7.9 million, or A$10.0 million, which is over double the current Australia best-practices value. Transferring US VSL estimates to other nations after accounting for income differences will boost global …

Neuronal Testimonial: Brain-Computer Interfaces And The Law, Jessica L. Haushalter

Vanderbilt Law Review

Scientific researchers have developed a method of using brainscanning technology to determine if patients in a coma-like condition, known as a "vegetative state," are conscious despite their inability to communicate verbally or via motor actions. While in a brain scanner, patients "answer" yes-or-no questions by envisioning specific scenarios that activate different parts of the brain. A researcher interprets a brain scan image as a yes-or-no response based on which areas of the brain demonstrated activation. Exciting as this technology may be, there are difficulties in terms of the ability to use it within the legal system. This Note considers those …

Presidential Exit, J.B. B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

"The biggest problem that we're facing right now has to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that's what I intend to reverse when I'm president of the United States of America."

"Why is @BarackObama constantly issuing executive orders that are major power grabs of authority?"

"President Trump signed the 30th executive order of his presidency on Friday, capping off a whirlwind period that produced more orders in his first 100 days than for any president since Harry Truman. The rash of executive orders …

Reframing The Proportionality Principle, Michael A. Newton

Vanderbilt Law School Faculty Publications

Proportionality functions as oneof the most important legal constraints applicable to the conduct of hostilities. In that context, this short essay discusses the commonly encountered misapplications of Cicero's classic sentiment that "salus populwe supremus est lexl . . . silent enim leges inter armes." Rather than serving as a necessary basis for a positive articulation of lawful force as an exception to the norm, jus in bello proportionality delineates the outer boundaries of the commander's appropriate discretion. The mere invocation of jus in bello proportionality cannot become an effective extension of asymmetric combat power by artificially crippling combatant capabilities. This …

Debating The Past's Authority In Alabama, Sara Mayeux

Vanderbilt Law School Faculty Publications

With some exceptions, the major project of civil rights litigators today is not forward movement but the work of preserving as much as possible the gains of the 1960s against legal and political battering.29 Meanwhile, and ironically, the rise of conservative progress metanarratives reflects the achievement of both liberal and radical scholars of forcing into mainstream discourse greater recognition of the evils of slavery and Jim Crow. Respectable conservatives now join in denouncing the most flagrant forms of racial terror running through the American past (pace certain allies of the Trump Administration). But doing so places them in a bind, …

Investor-State Dispute Settlement: Human Rights And Regulatory Lessons From "Lilly V. Canada", Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The triangular interface between trade, intellectual property (IP) and human rights has yet to be fully formed, both doctrinally and normatively. Adding investor-state dispute settlement (ISDS) to the mix increases the complexity of the equations to solve. Two resultant issues are explored in this Article. First, the Article considers ways in which broader public policy objectives—in particular the protection of human rights—can and should be factored into determinations of whether a state’s action is compatible with its trade obligations and commitments in the state-to-state dispute settlement context. Second, the Article examines whether doctrinal tools used in state-to-state, trade-dispute settlement to …

Lessons From Ten Years Of Household Recycling In The United States, W. Kip Viscusi, Joel Huber, Jason Bell

Vanderbilt Law School Faculty Publications

Recycling is perhaps the most prevalent pro-environmental activity at the household level. House-holds undertake recycling on their own initiative, though recycling efforts may be influenced by supportive nudges and, in some cases, laws that mandate recycling behavior. However, unlike pro-environmental efforts such as decreasing household energy usage, the success of the household's intention to recycle also hinges on governmental support. People cannot engage in recycling behavior on their own, as there must be some mechanism for collecting the recycled materials and converting them into useable commodities. The availability and nature of the recycling opportunities affect the household's ability to recycle …