Law Commons^™

Reference-Dependence Effects In Benefit Assessment: Beyond The Wta-Wtp Dichotomy And Wta-Wtp Ratios, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Willingness-to-pay (WTP) values and willingness-to-accept (WTA) values have received considerable attention, but the role of reference-dependence effects is more diverse. Policies involving cost and risk may have reference point effects with respect to both cost and risk, leading to four potential valuation measures. Experimental evidence for water quality policies suggests that the cost reference effects are particularly influential in that context. There is, however, no evidence of significant reference effects for labor market estimates of the value of a statistical life. Sound application of benefit values other than WTP measures requires pertinent empirical evidence and an assessment of the underlying …

Judicial Review Of Agency Benefit-Cost Analysis, W. Kip Viscusi, Caroline Cecot

Vanderbilt Law School Faculty Publications

This Article evaluates judicial review of agency benefit-cost analysis ("BCA") by examining a substantial sample of thirty-eight judicial decisions on agency actions that implicate BCA. Essentially, the Administrative Procedure Act tasks federal courts with ensuring that federal agency action is reasonable. As more agencies use BCA to justify their rulemakings, the court's duty often requires judges to evaluate the reasonableness of agency BCAs. In this Article, we discuss the challenges that trigger judicial review of agency BCAs and the standards that govern the review. We then present specific examples of how courts analyze BCAs. Overall, we find many examples of …

The Interpretive Dimension Of Seminole Rock, Kevin M. Stack

Vanderbilt Law School Faculty Publications

A lively debate has emerged over the deferential standard of review courts apply when reviewing an agency's interpretation of its own regulations. That standard, traditionally associated with Bowles v. Seminole Rock & Sand Co. and now more frequently attributed to Auer v. Robbins, states that a court must accept an agency's interpretation of its own regulations unless the interpretation is "plainly erroneous or inconsistent with the regulation." This Article argues that a court's choice of method for interpreting regulations” including how it determines which agency interpretations are inconsistent with the regulation ” may be just as important, if not more …

Environmental Law In Austerity, J.B. Ruhl, James Salzman, Jonathan Nash

Vanderbilt Law School Faculty Publications

Given the political dynamic in play at the national level, with the country evenly split between Republicans and Democrats, and incumbent Tea Party and other politicians highly critical of the EPA, there is no reason to think this trend in decreasing environmental budgets will change any time soon. In some states the trend is even more pronounced. Fiscal austerity has become the new norm. The interesting questions are whether this matters for environmental law, how it matters, and what it means going forward.

Back To The Future: Reflections On The Advent Of Autonomous Weapons Systems, Michael A. Newton

Vanderbilt Law School Faculty Publications

This essay refocuses the debate over autonomous weapons systems to consider the potentially salutary effects of the evolving technology. Law does not exist in a vacuum and cannot evolve in the abstract. Jus in bello norms should be developed in light of the overarching humanitarian goals, particularly since such weapons are not inherently unlawful or unethical in all circumstances. This essay considers whether a preemptive ban on autonomous weapons systems is likely to be effective and enforceable. It examines the grounds potentially justifying a preemptive ban, concluding that there is little evidence that such a ban would advance humanitarian goals …

Marijuana Localism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

The states have wrested control of marijuana policy from the federal government, but they risk losing some of their newfound power to another player: local governments. Hundreds of local communities are now seeking to establish their own marijuana policies, from legalization to prohibition and a variety of idiosyncratic regulatory schemes in between. These local efforts raise one of the most important and unresolved questions surrounding marijuana law and policy: What authority, if any, should states give local governments to regulate marijuana? This Article provides some guidance on this question. It starts by identifying two competing considerations that help determine whether …

Voting Squared: Quadratic Voting In Democratic Politics, Eric A. Posner, E. Glen Weyl

Vanderbilt Law Review

Conventional democratic institutions aggregate preferences poorly. The norm of one-person-one-vote with majority rule treats people fairly by giving everyone an equal chance to influence outcomes but fails to give proportional weight to people whose interests in a social outcome are stronger than those of other people. This problem leads to the familiar phenomenon of tyranny of the majority. Various institutions that have been tried or proposed over the years to correct this problem-including supermajority rule, weighted voting, cumulative voting, "mixed constitutions," executive discretion, and judicially protected rights-all badly misfire in various ways, for example, by creating gridlock or corruption. This …

A Tale Of Two Jurisdictions, Alan M. Trammell

Vanderbilt Law Review

The Supreme Court has recently clarified one corner of personal jurisdiction-a court's power to hale a defendant into court-and pointed the way toward a coherent theory of the rest of the doctrine. For nearly seventy years, the Court has embraced two theories of when jurisdiction over a defendant is permissible. The traditional theory, general jurisdiction, authorizes jurisdiction when there is a tight connection between the defendant and the forum. The modern theory, specific jurisdiction, focuses more on the connection between the lawsuit itself and the forum. Although the two theories should have developed in tandem, the doctrine has become a …

The Sins Of Innocence In Standing Doctrine, Elise C. Boddie

Vanderbilt Law Review

Should reverse discrimination plaintiffs always be able to challenge race-conscious selection policies in court? Conventional standing doctrine requires plaintiffs to show that the contested policy or practice has caused a concrete, personal harm. Yet in affirmative action cases, courts seem to have quietly dispensed with this required showing. The Supreme Court's decision in Fisher v. University of Texas is a prime example. The university illustrated that the white plaintiff would not have been admitted whatever her race. Yet the Court completely ignored the standing inquiry, reinforcing the significant confusion among courts and scholars alike about the cognizability of racial injury. …

The Geography Of Bankruptcy, Laura N. Coordes

Vanderbilt Law Review

Companies routinely file bankruptcy cases in venues that have no meaningful connection to the company, its operations, or its stakeholders. This practice (1) divorces bankruptcy and venue from their ties to location; (2) disrupts the fundamental balance underlying the Bankruptcy Code by shifting the focus exclusively to the needs of sophisticated parties; and (3) shuts out parties who have a right to participate in bankruptcy proceedings, which contravenes due process and raises fairness concerns. To solve these problems, this Article proposes new procedures that mandate a thorough discussion of venue considerations in bankruptcy cases. By requiring parties to justify their …

Criminal Asset Forfeiture And The Sixth Amendment After "Southern Union" And "Alleyne:" State-Level Ramifications, Brynn Applebaum

Vanderbilt Law Review

The Founding Fathers thought the jury-trial right was so fundamental to our system of justice that they included it in the Sixth Amendment of the United States Constitution. The right to trial by jury serves to protect criminal defendants against government overreaching by ensuring that they will be judged by their fellow citizens.' And as a whole, our system of justice and our citizenry have remained committed to the jury trial. But since the Founding, the Supreme Court has narrowed the application of the Sixth Amendment's guaranty.

Two decades ago, the Supreme Court decided in Libretti v. United States that …

Desperate Times Call For Desperate Measures: States Lead Misguided Offensive To Enforce Sales Tax Against Online Retailers, Ricky Hutchens

Vanderbilt Law Review

It is a near universal experience. An individual wants to purchase an item. He shops around to find the best price. After a diligent search, he realizes that if he makes the purchase online, he can avoid being charged sales tax on the item. Depending on the price of the item and the tax rate, the savings can be substantial- sometimes enough to justify paying for shipping. But many consumers fail to consider another consequence: choosing an online retailer effectively denies tax revenue to a buyer's home state. In the United States, state governments have three basic options for generating …

Payday Loan Choices And Consequences, Paige Marta Skiba, Neil Bhutta, Jeremy Tobacman

Vanderbilt Law School Faculty Publications

High-cost consumer credit has proliferated in the past two decades, raising regulatory scrutiny. We match administrative data from a payday lender with nationally representative credit bureau files to examine the choices of payday loan applicants and assess whether payday loans help or harm borrowers. We find consumers apply for payday loans when they have limited access to mainstream credit. In addition, the weakness of payday applicants’ credit histories is severe and longstanding. Based on regression discontinuity estimates, we show that the effects of payday borrowing on credit scores and other measures of financial well-being are close to zero. We test …

Does Learning About Climate Change Adaptation Change Support For Mitigation?, Michael P. Vandenbergh, Heather Barnes Truelove, Amanda R. Carrico, David Dana

Vanderbilt Law School Faculty Publications

Many have speculated that increased attention to climate change adaptation will reduce support for mitigation. The Risk Compensation Hypothesis suggests that remedies to reduce the impacts of risky behaviors can unintentionally increase those behaviors. The Risk Salience Hypothesis suggests that information about adaptation may increase the salience of impacts, and therefore increase mitigation support. Experiment 1 presented participants with a news article about an irrigation technology described as a way to improve efficiency (Pure Control), reduce emissions (Mitigation Control), or reduce drought vulnerability (Adaptation). Political moderates in the adaptation condition rated climate change as a higher political priority and were …

The End Of Class Actions?, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In this Article, I give a status report on the life expectancy of class action litigation following the Supreme Court's decisions in Concepcion and American Express. These decisions permitted corporations to opt out of class action liability through the use of arbitration clauses, and many commentators, myself included, predicted that they would eventually lead us down a road where class actions against businesses would be all but eliminated. Enough time has now passed to make an assessment of whether these predictions are coming to fruition. I find that, although there is not yet solid evidence that businesses have flocked to …

Contextualizing Gay‐Straight Alliances: Student, Advisor And Structural Factors Related To Positive Youth Development Among Members, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Gay-straight alliances (GSAs) may promote resilience. Yet, what GSA components predict well-being? Among 146 youth and advisors in 13 GSAs (58% lesbian, gay, bisexual, or questioning; 64% White; 38% received free/reduced-cost lunch), student (demographics, victimization, attendance frequency, leadership, support, control), advisor (years served, training, control), and contextual factors (overall support or advocacy, outside support for the GSA) that predicted purpose, mastery, and self-esteem were tested. In multilevel models, GSA support predicted all outcomes. Racial/ethnic minority youth reported greater well-being, yet lower support. Youth in GSAs whose advisors served longer and perceived more control and were in more supportive school contexts …

Us Climate Policy Needs Behavioural Science, Michael P. Vandenbergh, Amanda R. Carrico, Paul C. Stern, Thomas Dietz

Vanderbilt Law School Faculty Publications

In a rare move, the US Environmental Protection Agency (EPA), in a new draft rule known as 'The Clean Power Plan', has signalled that it will allow states and utilities to meet emissions standards by reducing electricity demand. The details of this regulation will have a substantial impact on its effectiveness, creating a tremendous opportunity to put integrated, multidisciplinary science to the practical end of mitigating climate change. Huge untapped potential exists for using knowledge about how the public responds to new technology, financial incentives and regulations. Financial incentives for home weatherproofing, for example, have varied tenfold in their impact …

The Relative Weights Of Direct And Indirect Experiences In The Formation Of Environmental Risk Beliefs, W. Kip Viscusi, Richard J. Zeckhauser

Vanderbilt Law School Faculty Publications

Direct experiences, we find, influence environmental risk beliefs more than the indirect experiences derived from outcomes to others. This disparity could have a rational basis. Or it could be based on behavioral proclivities in accord with the well-established availability heuristic or the vested-interest heuristic, which we introduce in this article. Using original data from a large, nationally representative sample, this article examines the perception of, and responses to, morbidity risks from tap water. Direct experiences have a stronger and more consistent effect on different measures of risk belief. Direct experiences also boost the precautionary response of drinking bottled water and …

The Right To Remain Armed, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia, and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta, and Cleveland. These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could …

Foresight Bias In Patent Law, Sean B. Seymore

Vanderbilt Law School Faculty Publications

Much of patent reform has focused on efforts to make it harder to obtain and enforce low-quality patents. The most straightforward way to achieve this goal is to raise the substantive standards of patentability. What is often ignored in discussions about raising patentability standards is that high-quality inventions can slip through the cracks. What is more troubling is that sometimes this happens because of bias. This Article draws attention to foresight bias, which occurs when a decision-maker lets over-pessimism and an oversimplified view of the future influence the patentability determination. Foresight bias leads to a patent denial regardless of the …

Domain Name Allocation And Government Super-Prioritization, Heather A. Forrest

Vanderbilt Journal of Entertainment & Technology Law

Governments' growing awareness of the Domain Name System (DNS), the Internet Corporation for Assigned Names and Numbers (ICANN), and its stewardship of DNS policy development fuel recent attempts to steer Internet domain name allocation toward policies that prioritize government interests ahead of all other rights and interests, including trademark rights. As the DNS expands, the top level in its hierarchical structure (the level of domains such as ".com" and ".uk") assumes the characteristics and attributes, and therefore also the conflicts and challenges, of its second level (the level of public-registered names). This Article argues that these developments necessitate a new, …

Who Is Reading Whom Now: Privacy In Education From Books To Moocs, Jules Polonetsky, Omer Tene

Vanderbilt Journal of Entertainment & Technology Law

This Article is the most comprehensive study to date of the policy issues and privacy concerns arising from the surge of ed tech innovation. It surveys the burgeoning market of ed tech solutions, which range from free Android and iPhone apps to comprehensive learning management systems and digitized curricula delivered via the Internet. It discusses the deployment of big data analytics by education institutions to enhance student performance, evaluate teachers, improve education techniques, customize programs, and better leverage scarce resources to optimize education results.

This Article seeks to untangle ed tech privacy concerns from the broader policy debates surrounding standardization, …

Baptizing O'Brien: Towards Intermediate Protection Of Religiously Motivated Expressive Conduct, Daniel J. Hay

Vanderbilt Law Review

Despite the relative prominence of religious expression in society' and its elevated status in constitutional law, the Supreme Court has struggled to articulate a consistent standard of review for neutral, generally applicable laws that indirectly burden religious expression. Since the late nineteenth century, the Court has vacillated between a highly deferential belief-action dichotomy and a more searching (albeit selectively applied) compelling interest test. Currently, the Court embraces a hybrid categorical-rational basis standard that relies in part upon a highly criticized assumption that the political process will be solicitous of minority religious practice. This retreat to rational basis has subordinated religious …

The Absent Amicus: With Friends Like These, Robert M. M. O'Neil

Vanderbilt Law Review En Banc

No abstract provided.

Public Interest Lawyering & Judicial Politics: Four Cases Worth A Second Look In Williams-Yulee V. The Florida Bar, Ruthann Robson

Vanderbilt Law Review En Banc

No abstract provided.

Much Ado About Nothing: The Irrelevance Of Williams-Yulee V. The Florida Bar On The Conduct Of Judicial Elections, Chris W. Bonneau, Shane M. Redman

Vanderbilt Law Review En Banc

No abstract provided.

Judicial Elections, Judicial Impartiality And Legitimate Judicial Lawmaking: Williams-Yulee V. The Florida Bar, Stephen J. J. Ware

Vanderbilt Law Review En Banc

No abstract provided.

The Tale Of The Fee Tail In Downtown Abbey, J. B. Ruhl

Vanderbilt Law Review En Banc

No abstract provided.

Understanding Standing, Andrew F. Hessick

Vanderbilt Law Review En Banc

No abstract provided.

Balancing As Well As Separating Power: Congress's Authority To Recognize New Legal Rights, Heather Elliott

Vanderbilt Law Review En Banc

No abstract provided.