Law Commons^™

Attorney Competence In An Age Of Plea Bargaining And Econometrics, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

The first part of this Essay explores the authors' findings, which do not fit as neatly into mainstream thinking about indigent defense representation as the authors suggest. The study's dramatic findings appear to stem from a counterintuitive form of professional competence: aptitude at convincing one's client to plead guilty.6 As discussed below, skill at obtaining a client's waiver of his constitutional right to a jury trial is not the traditional model of effective representation. If modem defense attorney competence primarily manifests in this manner, the implications for indigent defense and criminal justice generally are more revolutionary than the study's authors …

The Use And Misuse Of Econometric Evidence In Employment Discrimination Cases, Joni Hersch, Blair Druhan Bullock

Vanderbilt Law School Faculty Publications

Experts routinely criticize three aspects of regression analyses presented by the opposing party in employment discrimination cases: omitted explanatory variables, sample size, and statistical significance. However, these factors affect the reliability of the regression results only in very limited circumstances. As a result, valid regression analyses do not provide the critical guidance that they should in employment discrimination cases. Our own statistical analyses of seventy-eight Title VII employment discrimination cases find that merely raising these critiques, even if spurious, reduces plaintiffs’ likelihood of prevailing at trial. We propose that courts adopt a peer-review system in which court-appointed economists, compensated by …

Shareholder Voting In An Age Of Intermediary Capitalism, Paul H. Edelman, Randall S. Thomas, Robert B. Thompson

Vanderbilt Law School Faculty Publications

Shareholder voting is a key part of contemporary American corporate governance. As numerous contemporary battles between corporate management and shareholders illustrate, voting has never been more important. Yet, traditional theory about shareholder voting, rooted in concepts of residual ownership and a principal/agent relationship, does not reflect recent fundamental changes as to who shareholders are and their incentives to vote (or not vote). In the first section of the article, we address this deficiency directly by developing a new theory of corporate voting that offers three strong and complementary reasons for shareholder voting. In the middle section, we apply our theory …

Positive And Negative Spillover Of Pro-Environmental Behavior: An Integrative Review And Theoretical Framework, Heather B. Truelove, Amanda R. Carrico, Elke U. Weber, Kaitlin Toner Raimi, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

A recent surge of research has investigated the potential of pro-environmental behavior interventions to affect other pro-environmental behaviors not initially targeted by the intervention. The evidence evaluating these spillover effects has been mixed, with some studies finding evidence for positive spillover (i.e., one pro-environmental behavior increases the likelihood of performing additional pro-environmental behaviors) and others finding negative spillover (i.e., one pro-environmental behavior decreases the likelihood of additional pro-environmental behaviors). Different academic disciplines have investigated this question, employing different methodologies and arriving at divergent findings. This paper provides a unifying theoretical framework and uses the framework to review the existing research …

Corticolimbic Gating Of Emotion-Driven Punishment, Owen D. Jones, Michael T. Treadway, Joshua W. Buckholtz, Justin W. Martin, Katharine Jan, Christopher L. Asplund, Matthew R. Ginther, Rene Marois

Vanderbilt Law School Faculty Publications

Determining the appropriate punishment for a norm violation requires consideration of both the perpetrator's state of mind (for example, purposeful or blameless) and the strong emotions elicited by the harm caused by their actions. It has been hypothesized that such affective responses serve as a heuristic that determines appropriate punishment. However, an actor's mental state often trumps the effect of emotions, as unintended harms may go unpunished, regardless of their magnitude. Using fMRI, we found that emotionally graphic descriptions of harmful acts amplify punishment severity, boost amygdala activity and strengthen amygdala connectivity with lateral prefrontal regions involved in punishment decision-making. …

Trends In Environmental Law Scholarship 2008-2013, Michael P. Vandenbergh, Linda K. Breggin, David L. Stabb, Emma T. Doineau

Vanderbilt Law School Faculty Publications

As part of the article selection process each year, Vanderbilt University Law School students assemble and review the environmental law articles published during the previous academic year. In this Article, we draw on the results of the ELPAR article selection process to report on trends in environmental legal scholarship for academic years 2008-2013.

Specifically, this Article reports on the number of environmental law articles published in general law reviews and environmental law journals. We find that although the total varied somewhat from year to year, more than 400 environmental law articles were published each year during the 2008-2013 period. Additionally, …

Energy And Climate Change: A Climate Prediction Market, Michael P. Vandenbergh, Kaitlin T. Raimi, Jonathan M. Gilligan

Vanderbilt Law School Faculty Publications

Much of energy policy is driven by concerns about climate change. Views about the importance of carbon emissions affect debates on topics ranging from the regulation of electricity generation and transmission to the need for incentives to develop emerging technologies. Government efforts to fund and communicate climate science have been extraordinary, but recent polling suggests that roughly half of the American population is unsure or does not believe that anthropogenic climate change is occurring. Among some populations, belief in climate change is declining even as the climate science becomes more certain. Much of the doubt occurs among individuals who support …

Panvasive Surveillance, Political Process Theory And The Nondelegation Doctrine, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Using the rise of the surveillance state as its springboard, this Article makes a new case for the application of administrative law principles to law enforcement. It goes beyond asserting, as scholars of the 1970s did, that law enforcement should develop the types of rules that govern other executive agencies, by showing how the imperative of administrative regulation flows from a version of John Hart Ely's political process theory and principles derived from the closely associated nondelegation doctrine. Part I introduces the notion of panvasive law enforcement-large-scale police actions that are not based on individualized suspicion-and exposes the incoherence of …

Deconstructing The Right To Counsel, Lauren D. Sudeall

Vanderbilt Law School Faculty Publications

Energized by the fiftieth anniversary of Gideon v. Wainwright, and in light of the nearly one million low-income Americans who are denied legal aid services each year, renewed calls to expand the right to counsel to civil litigants have emerged. Lucas explains that there are “numerous ways in which Gideon’s promise has fallen short” in the criminal realm and, as a result, there is little consensus about how to proceed in the civil context. The Issue Brief explores the range of ideas in the “civil Gideon” debate and examines why the values underlying the right to counsel are critical but …

"Maladaptive" Federalism: The Structural Barriers To Coordination Of State Sustainability Initiatives, Jim A. Rossi

Vanderbilt Law School Faculty Publications

While the federal government has been slow to address problems such as climate change, many states have adopted innovative approaches to address the climate impact of using natural resources to produce energy, including aggressive approaches to regulating carbon emissions and renewable and clean energy standards. This Article identifies an emerging challenge that subnational regulation faces in the energy and environmental context -- what I will call maladaptive federalism -- and argues that federalism discussions need to account for its possibility. Part I highlights adaptive regulation as a form of federalism, echoing a vision for subnational regulation many federalism scholars and …

Foreign Hard Look Review, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

For decades, courts and scholars have been engaged in a protracted and largely polarized debate over a seemingly simple question: how should courts address cases that implicate foreign affairs? On the one hand are those who seek expansive deference to the Executive's conduct offoreign affairs. On the other are those who argue that the courts must enforce the rule of law in foreign affairs cases lest they abdicate their responsibility to keep the Executive in check This Article provides an alternative approach to the judicial role in foreign relations cases--one that navigates between judicial abdication and judicial entanglement. It argues …

Willingness To Accept Equals Willingness To Pay For Labor Market Estimates Of The Value Of Statistical Life, W. Kip Viscusi, Thomas J. Kniesner, James P. Ziliak

Vanderbilt Law School Faculty Publications

Our research clarifies the conceptual linkages among willingness to pay for additional safety, willingness to accept less safety, and the value of a statistical life (VSL). We present econometric estimates using panel data to analyze the VSL levels associated with job changes that may affect the worker’s exposure to fatal injury risks. Our baseline VSL estimates are $7.7 million and $8.3 million (Y$2001). There is no statistically significant divergence between willingness-to-accept VSL estimates associated with wage increases for greater risks and willingness-to-pay VSL estimates as reflected in wage changes for decreases in risk. Our focal result contrasts with the literature …

Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew G. Ferguson

Vanderbilt Law School Faculty Publications

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature-attributes that have the …

Cause To Believe What? The Importance Of Defining A Search's Object--Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the mere evidence rule in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the object of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search might lead to evidence of wrongdoing triggers a very different inquiry than probable cause to believe that a search will produce evidence of criminal activity. The failure to address the constraints that should be imposed on …

Better Bounty Hunting, Amanda M. Rose

Vanderbilt Law School Faculty Publications

The SEC’s new whistleblower bounty program has provoked significant controversy. That controversy has centered on the failure of the implementing rules to make internal reporting through corporate compliance departments a prerequisite to recovery. This Article approaches the new program with a broader lens, examining its impact on the longstanding debate over fraud-on-the-market (FOTM) class actions. The Article demonstrates how the bounty program, if successful, will replicate the fraud deterrence benefits of FOTM class actions while simultaneously increasing the costs of such suits — rendering them a pointless yet expensive redundancy. If instead the SEC proves incapable of effectively administering the …

Assessing The Insurance Role Of Tort Liability After Calabresi, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Calabresi’s theory of tort liability (1961) as a risk distribution mechanism established insurance as an objective of tort liability. Calabresi’s risk-spreading concept of tort has provided the impetus for much of the subsequent development of tort liability doctrine, including risk-utility analysis and strict liability. Calabresi’s analysis remains a powerful basis for modern tort liability. However, high transactions costs, correlated risks, catastrophic losses, mass toxic torts, shifts in liability rules over time, noneconomic damages, and punitive damages affect the functioning of tort liability as an insurance mechanism. Despite some limitations of tort liability as insurance, tort compensation serves both a compensatory …

Ineffective Assistance Of Counsel Before "Powell V. Alabama": Lessons From History For The Future Of The Right To Counsel, Sara Mayeux

Vanderbilt Law School Faculty Publications

In the first Part of this Essay, I outline the common law agency rule that precluded reversal of a judgment on the basis of counsel negligence. While this rule was developed in civil litigation, state judges also applied it in criminal appeals. In many states, judges continued to apply the rule strictly through the 1920S or even later. However, from the 188os through the 1920s, some state judges moved toward a more flexible application of the rule in criminal cases. Though judges still recited the traditional rule that counsel negligence could not be grounds for a new trial, they now …

Once A Criminal? Regulating The Use Of Prior Convictions In Sentencing, Nancy J. King

Vanderbilt Law School Faculty Publications

On November 18, 2013, Nancy J. King, the Lee S. and Charles A. Speir Professor at Vanderbilt Law School, delivered Marquette Law School’s annual George and Margaret Barrock Lecture in Criminal Law. This is an abridgment of that lecture. A longer, essay version appears in the spring 2014 issue of the Marquette Law Review.

Dude, Where's My Car Title?: The Law, Behavior, And Economics Of Title Lending Markets, Paige Marta Skiba, Kathryn Fritzdixon, Jim Hawkins

Vanderbilt Law School Faculty Publications

Millions of credit-constrained borrowers turn to title loans to meet their liquidity needs. Legislatures and regulators have debated how to best regulate these transactions, but surprisingly, we still know very little about the customers who use title loans. This Article reports findings from the first large-scale academic study of title lending customers. We surveyed over 400 title lending customers across three states and obtained information about customers’ demographic and behavioral characteristics.

Based on the results of our survey and guided by insights from behavioral economics, this Article seeks to reframe the title lending debate. Instead of focusing on the risks …

Is Finra A State Actor? A Question That Exposes The Flaws Of The State Action Doctrine And Suggests A Way To Redeem It, Michael Deshmukh

Vanderbilt Law Review

For over seventy years, the National Association of Securities Dealers ("NASD") was the principal self-regulatory organization ("SRO") responsible for the regulation and oversight of the U.S. securities market.' In 2000, working with the Securities and Exchange Commission ("SEC") and the New York Stock Exchange ("NYSE"), the NASD initiated a joint investigation into twelve investment firms that were allegedly "spinning" initial public, offerings. This sort of regulatory interplay between the NASD and the NYSE governed the industry until 2008, when self-regulatory power was further consolidated by a merger between the NASD and the regulatory arm of the NYSE. The resulting organization, …

Enjoining Abuse: The Case For Indefinite Domestic Violence Protection Orders, Jane K. Stoever

Vanderbilt Law Review

While countless studies demonstrate the complex and dangerous nature of intimate partner abuse, most jurisdictions permit only the entry of yearlong domestic violence protection orders. Judges may assume that danger ceases once the order takes effect, but evidence of the recurrent nature of violence demonstrates the importance of providing judicial protection over time. The brevity of domestic violence protection orders stands in stark contrast to the long duration of orders in other areas of the law, such as intellectual property, corporations, real property, and tax, where courts routinely enter permanent injunctions to protect individuals and businesses against "irreparable harm." What …

Making Or Breaking Your Billion Dollar Case: U.S. Judicial Assistance To Private International Arbitration Under 28 U.S.C. 1732(A), Laura E. Malament

Vanderbilt Law Review

With the increasingly globalized economy, arbitration is becoming a popular mechanism for resolving disputes. The total value of international arbitration claims grew over one hundred percent in 2012, from $96 billion in 2011 to $206 billion in 2012. The principal users of international arbitration are corporations. In fact, for the shipping, energy, oil and gas, and insurance industries, international arbitration of multi-billion dollar disputes is the "default resolution mechanism." Across all industries, approximately ninety percent of international contracts include an arbitration clause. Importantly, seventy-four percent of international arbitration proceedings involve exclusively private parties-no state entities are parties to the dispute.

Sticky Arbitration Clauses - The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Vanderbilt Law Review

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court's decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …

In Defense Of American Criminal Justice, J. H. Wilkinson, Iii

Vanderbilt Law Review

The American criminal justice system is on trial. A chorus of commentators-often but not exclusively in the legal academy-has leveled a sharp indictment of criminal process in our country. The indictment charges that large flaws infect nearly every stage of the adjudicatory process. And the prescriptions are equally far-reaching, with calls for abolition of many current practices and an overhaul of the entire system. What is more, the critics issue their condemnations essentially as givens, often claiming that all reasonable people could not help but agree that fair treatment of the accused has been fatally compromised. For these critics, "We …

Assessing The Insurance Role Of Tort Liability After Calabresi, W. Kip Viscusi, Joni Hersch

Vanderbilt Law School Faculty Publications

Calabresi’s theory of tort liability (1961) as a risk distribution mechanism established insurance as an objective of tort liability. Calabresi’s risk-spreading concept of tort has provided the impetus for much of the subsequent development of tort liability doctrine, including risk-utility analysis and strict liability. Calabresi’s analysis remains a powerful basis for modern tort liability. However, high transactions costs, correlated risks, catastrophic losses, mass toxic torts, shifts in liability rules over time, noneconomic damages, and punitive damages affect the functioning of tort liability as an insurance mechanism. Despite some limitations of tort liability as insurance, tort compensation serves both a compensatory …

The Case For A Market In Debt Governance, Yesha Yadav

Vanderbilt Law Review

Scholars have long lamented that the growth of modern finance has given way to a decline in debt governance. According to current theory, the expansive use of derivatives that enable lenders to trade away the default risk of their loans has made these lenders uninterested, even reckless, when it comes to exercising creditor discipline. In contrast to current theory, this Article argues that such derivatives can prove a positive and powerful influence in debt governance. Theory has overlooked those who sell credit protection to lenders and assume default risk on the borrower. These protection sellers are left holding the economic …

Enforcement Discretion And Executive Duty, Zachary S. Price

Vanderbilt Law Review

Recent Presidents have claimed wide-ranging authority to decline enforcement of federal laws. The Obama Administration, for example, has announced policies of abstaining from investigation and prosecution of certain federal marijuana crimes, postponing enforcement of key provisions of the Affordable Care Act, and suspending enforcement of removal statutes against certain undocumented immigrants. While these examples highlight how exercises of executive enforcement discretion-the authority to turn a blind eye to legal violations-may effectively reshape federal policy, prior scholarship has offered no satisfactory account of the proper scope of, and constitutional basis for, this putative executive authority. This Article fills that gap. Through …

The Obligation Of Members Of Congress To Consider Constitutionality While Deliberating And Voting: The Deficiencies Of House Rule Xii And A Proposed Rule For The Senate, Russ Feingold

Vanderbilt Law Review

Most scholarly attention on constitutional interpretation is focused on the judicial branch and its role in our system of separation of powers. Nonetheless, constitutional interpretation should not take place solely in the courts. Rather, history suggests our Framers envisioned that members of Congress, as well as the President and the courts, would have an independent and important role to play in interpreting our Constitution. Yet this obligation has eroded such that House Speaker John Boehner, with the support of the Tea Party and his Republican colleagues, called for a "sea change" in the way the House of Representatives operates, with …

Save Now, Win Later: Removing Statutory Barriers To Prize-Linked Savings Initiatives, Ann E. Watford

Vanderbilt Law Review

In February of 2010, Billie June Smith received exciting news. As the lucky winner of a statewide drawing, this elderly woman was awarded a giant check for $100,000. Billie June's good fortune cost her nothing, for she did not spend any money on the winning ticket. Instead, she became eligible for the grand prize when she decided to save for her retirement at her local credit union. Billie June was the inaugural grand-prize winner of "Save to Win," an innovative pilot program that launched in 2009 to test a concept known as prize-linked savings. In partnership with the nonprofit Doorways …

Tentative Interpretations: The Abracadabra Of Administrative Rulemaking And The End Of 'Alaska Hunters', Matthew P. Downer

Vanderbilt Law Review

Agency flexibility is a battlefield. When circumstances change or a new regime takes power, federal agencies often adjust their settled regulations to reflect new realities. There is a persistent struggle, however, between preserving this flexibility and protecting those who relied upon the previous regulations.' When an agency changes course, regulated entities must comply, often with little warning and at great expense. In 1946, Congress passed the Administrative Procedure Act ("APA") to balance these interests by restricting when and how agencies can promulgate and change regulations.

Unsurprisingly, the APA did not achieve a lasting d6tente. Instead, it merely created new fronts …