Law Commons^™

Less Is More: Procedural Efficacy In Vindicating Civil Rights, Jennifer Bennett Shinall

Vanderbilt Law School Faculty Publications

Eradicating discrimination is a lofty goal, and since the second half of the twentieth century, the United States has largely relied upon the legal system to achieve this goal. Yet a great deal of scholarship suggests that the legal system may not always do a credible job. Scholars have documented multiple instances of discrimination laws' inaccessibility to discrimination victims individually and inability to improve the labor market prospects of victims as a whole. Still missing from the literature, however, is an assessment of what separates effective discrimination laws from ineffective ones. This Article fills this gap, using both qualitative and …

Ferc V. Epsa, Jim Rossi, Jon Wellinghoff

Vanderbilt Law School Faculty Publications

This Essay explores the implications of the U.S. Supreme Court's decision in FERC .v. EPSA for state regulation of customer energy resource initiatives, such as net metering policies for rooftop solar and energy storage programs. Unlike many past judicial decision that fixate on a jurisdictional "bright line," EPSA does not define a turf for state policymaking as beyond FERC's reach but instead recognizes how state policies operate adjacent to FERC's regulation of practices affecting wholesale rates. As the first Supreme Court case to explicitly recognize cooperative federalism programs in the regulation of modern energy markets under the FPA, ESPA is …

Corporate Darwinism: Disciplining Managers In A World With Weak Shareholder Litigation, Randall S. Thomas, James D. Cox

Vanderbilt Law School Faculty Publications

Because representative shareholder litigation has been constrained by numerous legal developments, the corporate governance system has developed new mechanisms as alternative means to address managerial agency costs. We posit that recent significant governance developments in the corporate world are the natural consequence of the ineffectiveness and inefficiency of shareholder suits to address certain genre of managerial agency costs. We thus argue that corporate governance responses evolve to fill voids caused by the inability of shareholder suits to monitor and discipline corporate managers.

We further claim that these new governance responses are themselves becoming stronger due in part to the rising …

Law & Neuroscience: What, Why, And Where To Begin, Owen D. Jones, Jeffrey D. Schall, Francis X. Shen

Vanderbilt Law School Faculty Publications

This provides the Summary Table of Contents and Chapter 1 of our coursebook “Law and Neuroscience” (forthcoming April 2014, from Aspen Publishing). Designed for use in both law schools and beyond, the book provides user-friendly introductions, as well as detailed explorations, of the many current and emerging issues at the intersection of law and neuroscience.

One part of the book lays general foundations by exploring the relationships between law and science generally, and by comparing the views from law and from neuroscience regarding behavior and responsibility. A later part explains the basics of brain structure and function, the methods for …

Parsing The Behavioral And Brain Mechanisms Of Third-Party Punishment, Owen D. Jones, Matthew Ginther, Richard J. Bonnie, Morris B. Hoffman, Francis X. Shen, Kenneth W. Simons, Rene Marois

Vanderbilt Law School Faculty Publications

The evolved capacity for third-party punishment is considered crucial to the emergence and maintenance of elaborate human social organization and is central to the modern provision of fairness and justice within society. Although it is well established that the mental state of the offender and the severity of the harm he caused are the two primary predictors of punishment decisions, the precise cognitive and brain mechanisms by which these distinct components are evaluated and integrated into a punishment decision are poorly understood.

Using a brain-scanning technique known as functional magnetic resonance imaging (fMRI), we implemented a novel experimental design to …

Antitrust Scrutiny For The Occupations: "North Carolina Dental" And Its Impact On U.S. Licensing Boards, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

The American system of occupational licensing is under attack. The current regime – which allows for almost total self-regulation – has weathered sustained criticism from consumer advocate groups, academics, politicians, and even the White House itself. But the recent U.S. Supreme Court opinion in North Carolina Board of Dental Examiners v. FTC,1 portends a sea change in how almost a third of American workers are regulated. The case has made it possible for aggrieved individuals and government enforcers to bring suits against most state licensing boards, challenging their restrictions as violating federal competition law. The case has prompted two responses: …

College Football Coaches' Pay And Contracts: Are They Overpaid And Unduly Privileged?, Randall S. Thomas, R. Lawrence Van Horn

Vanderbilt Law School Faculty Publications

College football coaches' employment contracts and compensation garner public attention and scrutiny in much the same way as those of corporate CEOs. In both cases, the public perception is that they must be overpaid and pampered Economic theory claims that for coaches and CEOs to be overpaid, they must be receiving compensation in excess of the value they create for their organizations. However, both receive pay-for-performance compensation, which structurally aligns their compensation with value creation. This means we need to examine the underlying structure of the contract that gives rise to the observed compensation to determine whether they are appropriately …

The Science Of Gatekeeping: Using The Structure Of Scientific Inference To Draw The Line Between Admissibility And Weight In Expert Testimony, Christopher Slobogin, David Faigman, John Monahan

Vanderbilt Law School Faculty Publications

Fundamental to all evidence rules is the division of responsibility between the judge, who determines the admissibility of evidence, and the jury, which gauges its weight. In most evidentiary contexts, such as those involving hearsay and character, threshold admissibility obligations are clear and relatively uncontroversial. The same is not true for scientific evidence. The complex nature of scientific inference, and in particular the challenges of reasoning from group data to individual cases, has bedeviled courts. As a result, courts vary considerably on how they define the judge's gatekeeping task under Federal Rule of Evidence 702 and its state equivalents.

This …

The Hidden Question In Fisher, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

This Term, the Supreme Court will once again consider whether the University of Texas at Austin is illegally discriminating against white and Asian students in its undergraduate admissions program. The case is Fisher v. University of Texas at Austin (“Fisher II”). The same case was before the Court three Terms ago (“Fisher I”), but the Court punted that time; in a 7-1 decision, it sent the case back to the lower courts to apply stricter strict scrutiny. The lower courts again upheld the program, however, and the Supreme Court will have to confront the question head …

Are College Presidents Like Football Coaches? Evidence From Their Employment Contracts, Randall Thomas, Lawrence R. Van Horn

Vanderbilt Law School Faculty Publications

College presidents and football coaches are frequently criticized for their high compensation. In this paper, we argue that these criticisms are unmerited, as the markets for both college presidents and football coaches exhibit properties consistent with a competitive labor market. Both parties compensation varies in sensible ways related to the size of the programs they manage, as well as their potential for value creation. Successful college presidents and football coaches can greatly increase the value of their schools well beyond the amount they receive in compensation. If these higher education executives' compensation is the result of a competitive labor market, …

Introduction: Is The Supreme Court Failing At Its Job, Or Are We Failing At Ours?, Suzanna Sherry

Vanderbilt Law School Faculty Publications

It is a pleasure and a privilege to write an introduction to this Symposium celebrating Dean Erwin Chemerinsky's important new book, The Case Against the Supreme Court. Chemerinsky is one of the leading constitutional scholars of our time and a frequent advocate before the U.S. Supreme Court. If he thinks there is a case to be made against the Court, we should all take it very seriously indeed. Chemerinsky's thesis may be stated in a few sentences. The primary role of the Supreme Court, in his view, is to "protect the rights of minorities who cannot rely on the political …

Is The Supreme Court Failing At Its Job, Or Are We Failing At Ours, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Sanford Levinson calls for a new constitutional convention in Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). This review explains how Levinson overstates the Constitution's defects and understates the risks of submitting it to a constitutional convention for revision. It exposes the hidden biases in Levinson's analysis and defends the counter-majoritarian aspects of the Constitution that Levinson criticizes. Chemerinsky is one of the leading constitutional scholars of our time and a frequent advocate before the U.S. Supreme Court. If he thinks there is a case to be made against the Court, we …

Selective Judicial Activism, Suzanna Sherry

Vanderbilt Law School Faculty Publications

This Essay, written for a symposium asking “Is the Rational Basis Test Unconstitutional?,” defends the bifurcated-scrutiny approach of Carolene Products and its famous footnote four. A growing cadre of conservative and libertarian scholars has called for increased scrutiny of legislation affecting economic rights. The Essay marshals four types of arguments to suggest that regulation of market activities should not be subject to the same, heightened, level of scrutiny as legislation affecting personal rights: moral arguments, constitutive arguments, consequentialist arguments, and arguments resting on the likelihood of illicit legislative motives.

Symposium: The Disclosure Function Of The Patent System, Sean B. Seymore

Vanderbilt Law School Faculty Publications

Achieving a robust disclosure from patent applicants is no easy task because it brings to the fore competing goals of the patent system. For example, the law must strike a balance between its interest in early disclosure and the need to transform the patent into a substantive technical document that can itself promote innovation. The law must also strike a delicate balance between the public's interest in disclosure and the inventor's incentive to disclose. A lax disclosure requirement compromises the quid pro quo, meaning that the public might get shortchanged in the so-called patent bargain. But a stringent disclosure requirement …

In Defense Of Ecosystem Services, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The path of ecosystem services as a theme in environmental law and policy spans my practice (1982-1994) and academic (1994-present) careers. The importance of nature to human well-being seems so obvious one would think it has been front and center in environmental law and policy since the beginning, but, until recently, that has not been the case. Lately, however, the ecosystem services framework has catapulted this theme into prominence, if not dominance, in environmental discourse.

What Gideon Did, Sara Mayeux

Vanderbilt Law School Faculty Publications

Many accounts of Gideon v Wainwright s legacy focus on what Gideon did not do--its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few "outlier" states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes. Drawing on original historical research, this Article instead chronicles what Gideon did-the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession's policy consensus on indigent defense away …

The Invisible Revolution In Plea Bargaining: Managerial Judging And Judicial Participation In Negotiations, Nancy J. King, Ronald F. Wright

Vanderbilt Law School Faculty Publications

This article, the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly 100 judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured, best practices for docket management. We learned of grant-funded, problem-solving sessions complete with risk assessments and real-time information on treatment options; multi-case conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation …

Incarceration Incentives In The Decarceration Era, Avlana K. Eisenberg

Vanderbilt Law Review

After forty years of skyrocketing incarceration rates, there are signs that a new "decarceration era" may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth. These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform. This Article scrutinizes the incentives of these industry stakeholders …

The Great Balancing Act: The Effect Of The America Invents Act On The Division Of Power Between The Patent And Trademark Office And The Federal Circuit, Samiyyah R. Ali

Vanderbilt Law Review

The United States Constitution grants Congress the power "(t)o promote the Progress of Science and useful Arts" by entering into a bargain that drives patent policy: Congress grants a patent to the inventor for a limited time, in exchange for the benefit to society of the invention. The Constitution empowered Congress with broad authority, and Congress has, as in many areas of the law, created several entities that shape patent policy. Despite Congress's creation of the United States Patent and Trademark Office ("PTO"), tasked with the regulation of patent applications and grants, courts-specifically semi-specialized appellate courts-have driven patent policy for …

Online Sovereignty: The Law And Economics Of Tribal Electronic Commerce, Gavin Clarkson, Katherine A. Spilde, Carma M. Claw

Vanderbilt Journal of Entertainment & Technology Law

In 1886, the US Supreme Court wrote that, for Indian tribes,"the people of the states where they are found are often their deadliest enemies." Recently, state agencies and regulators have continued that tradition of hostility by improperly attempting to regulate electronic commerce businesses operated by tribal governments that are more properly subject to regulations established by tribal law and subject to federal oversight. Despite the fact that these online businesses operate exclusively under tribal law and make their tribal affiliation clear to customers, certain state regulators have demanded absolute compliance with state law, even when such laws are from states …

Keeping Ai Legal, Amitai Etzioni, Oren Etzioni

Vanderbilt Journal of Entertainment & Technology Law

AI programs make numerous decisions on their own, lack transparency, and may change frequently. Hence, unassisted human agents, such as auditors, accountants, inspectors, and police, cannot ensure that AI-guided instruments will abide by the law. This Article suggests that human agents need the assistance of AI oversight programs that analyze and oversee operational AI programs. This Article asks whether operational AI programs should be programmed to enable human users to override them; without that, such a move would undermine the legal order. This Article also points out that AI operational programs provide high surveillance capacities and, therefore, are essential for …

Health Information Ownership: Legal Theories And Policy Implications, Lara Cartwright Smith, Elizabeth Gray, Jane H. Thorpe

Vanderbilt Journal of Entertainment & Technology Law

This Article explores the nature and characteristics of health information that make it subject to federal and state laws and the existing legal framework that confers rights and responsibilities with respect to health information. There are numerous legal and policy considerations surrounding the question of who owns health information, including whether and how to confer specific ownership rights to health information. Ultimately, a legal framework is needed that reflects the rights of a broad group of stakeholders in the health information marketplace, from patients to providers to payers, as well as the public's interest in appropriate sharing of health information.

Unsponsored Adrs Falling Through The Cracks: Adapting A Domestic Securities Regime To A Global Marketplace, Sarah Dotzel

Vanderbilt Journal of Entertainment & Technology Law

Investing in the securities market has become a commonplace activity for expert and amateur investors alike. As more and more companies transcend national boundaries with their business activities, investment in their securities becomes coveted by international investors. Since securities are regulated on a country-by-country basis, it is unclear which law applies when conflict arises. In an attempt to clarify one such situation, simplify the application of US securities laws, and respect the legal regimes of other nations, the Morrison decision created an unclear test which leaves investors in unsponsored American Depositary Receipts (ADRs), one of the most common international trading …

Patent Litigation In China: Protecting Rights Or The Local Economy?, Brian J. Love, Christian Helmers, Markus Eberhardt

Vanderbilt Journal of Entertainment & Technology Law

Though it lacked a patent system until 1985, China is now the world leader in patent filings and litigation. Despite the meteoric rise of the Chinese patent system, many in the West believe that it acts primarily to facilitate local protectionism rather than innovation. Recent high-profile patent suits filed by relatively unknown Chinese firms against high-profile foreign tech companies, like Apple, Samsung, and Dell, have only added fuel to the fire. Surprisingly, given how commonplace assertions of Chinese protectionism are, little empirical evidence exists to support them. This Article contributes to the literature on this topic by analyzing five years …

Decriminalization, Regulation, Privatization: A Response To Professor Natapoff, Darryl K. Brown

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Court Enjoins Board Reduction Plan Aimed At Undermining Threatened Proxy Contest, Robert S. Reder, Loren D. Goodman

Vanderbilt Law Review En Banc

No abstract provided.

Justice By Proxy: Combatting Forced Labor In The Greater Mekong Subregion By Holding U.S. Corporations Liable, Sasha Beatty

Vanderbilt Journal of Transnational Law

Human trafficking in Southeast Asia is still a thriving and lucrative industry. Despite these blatant human rights violations, international and local laws have struggled to keep ahead of the rapidly growing human trafficking industry. The result is a legal system that cannot effectively combat human trafficking in this region. This Note highlights the United States' significant financial contribution to the growth of this slavery industry, particularly in the purchase of significant quantities of goods produced by forced labor in this region. This Note argues that a way to expedite change in this region should be from external, foreign law targeting …

Divided We Fall: How The International Criminal Court Can Promote Compliance With International Law By Working With Regional Courts, Tatiana E. Sainati

Vanderbilt Journal of Transnational Law

Kenya's 2007 presidential elections inflamed deep-seeded ethnic tensions in the country, sparking violence that left thousands dead and more than half-a-million civilians displaced. After the bloodshed, Kenya failed to investigate, prosecute, and punish those responsible for the atrocities. The Prosecutor for the International Criminal Court (ICC) launched an investigation into the Kenyan situation, acting under his statutory authority, and eventually brought charges against six high-ranking Kenyans, including President Kenyatta. After years of investigations, the Prosecutor ultimately withdrew the case against the Kenyan President--a potentially fatal failure heralded by some as the death knell of the ICC.

During the course of …

(De)Legitimation At The Wto Dispute Settlement Mechanism, Cosette D. Creamer, Zuzanna Godzimirska

Vanderbilt Journal of Transnational Law

International courts employ a variety of legitimation strategies in order to establish and maintain a sound basis of support among their constituents. Existing studies on the legitimating efforts and legitimacy of the World Trade Organization's (WTO) judicial bodies have relied largely on theoretical or normative priors about what makes them legitimate. In contrast, this Article directly connects the study of courts' legitimating efforts with their effects by empirically mapping the reception of the WTO Dispute Settlement Mechanism's (DSM) exercise of authority by the system's primary constituents--WTO Members. Using an original data set of WTO Member statements within meetings of the …

Ukraine And The International Criminal Court: Implications Of The Ad Hoc Jurisdiction Acceptance And Beyond, Dr. Iryna Marchuk

Vanderbilt Journal of Transnational Law

The Article examines an array of important legal issues that arise out of the acceptance of the jurisdiction of the International Criminal Court by Ukraine, a non-State Party to the Rome Statute, within the framework of Article 12(3) with respect to the alleged crimes against humanity committed during the 2014 Maydan protests (Declaration I) and the alleged war crimes committed in eastern Ukraine and Crimea (Declaration II). It provides an in-depth analysis of constitutional law issues linked to the acceptance of the jurisdiction by Ukraine and discusses its possible implications on the proceedings before the ICC. The Article criticizes the …