Law Commons^™

A Gap In The Affordable Care Act: Will Tax Credits Be Available For Insurance Purchased Through Federal Exchanges?, Amy E. Sanders

Vanderbilt Law Review

Millions of Americans rest assured that the Patient Protection and Affordable Care Act' ("ACA") provides tax credits for health insurance to individuals earning 100-400% of the federal poverty line. The tax credits will be accessible through state insurance exchanges, also known as Marketplaces, which are government- regulated organizations designed to create more competition in the health insurance industry. But a gap in the unwieldy, two-thousand- plus-page statute-either a scrivener's error or an overlooked loophole-is raising questions about whether citizens in certain states are eligible for the tax credits. This "quirk" could be a serious blow to an already contentious healthcare-reform …

The Market For Preclusion In Merger Litigation, Sean J. Griffith, Alexandra D. Lahav

Vanderbilt Law Review

Delaware dominates the corporate law market.' More than half of all public companies and over sixty percent of the Fortune 500 are incorporated in Delaware. These companies are subject to Delaware's corporate law regardless of where their businesses are physically located. Although academics continue to debate whether it is good or bad, they have long agreed that Delaware's dominance is a result of its law and its judiciary. As a corollary, it was widely understood that Delaware courts decided most cases involving Delaware corporations. The discovery that litigation involving these corporations very often takes place outside of Delaware therefore came …

Against Proportional Punishment, Adam J. Kolber

Vanderbilt Law Review

Many criminal defendants are held in detention while they await trial. Though conditions in pretrial detention are much like those in prison, detention is technically not punishment. Since detainees are merely accused of crimes, they are presumed innocent.' Their detention is not intended to punish them, and so, the Supreme Court has said, it is not punishment at all. Rather, detention is a means of promoting public safety, reducing witness intimidation, and preventing people accused of crimes from fleeing before trial. Nevertheless, defendants who are convicted generally receive credit at sentencing for time served in pretrial detention. An offender who …

The Benefits Of Mortality Risk Reduction: Happiness Surveys Vs. The Value Of A Statistical Life, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

A principal component of many benefit-cost analyses (BCAs) of health, safety, and environmental regulations is the valuation of the fatality risk effects of the underlying policy. Government agencies currently value these expected effects using estimates of the value of a statistical life (VSL), that is, the tradeoff rate between money and very small risks of death. This measure corresponds to BCA's theoretically appropriate benefits measure, which is society's willingness to pay for the risk reduction. Here, I will review the VSL approach, compare it to suggested alternatives that use happiness measures of well-being, and address some of the misunderstandings that …

Statutory Interpretation From The Inside--An Empirical Study Of Congressional Drafting, Delegation, And The Canons: Part I, Lisa Schultz Bressman, Abbe R. Gluck

Vanderbilt Law School Faculty Publications

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees …

Federal Preemption And Clean Energy Floors, Jim Rossi, Thomas Hutton

Vanderbilt Law School Faculty Publications

Federal policies regarding renewable and clean energy often lack clear definition, are incomplete, and are scattered across multiple statutes and agencies. Yet at the same time, recent decisions of both federal agencies and courts have attributed a preemptive effect to federal statutes that threatens to hobble innovation in renewable and clean energy policy by subnational regulators. One consequence of this approach is that most significant policies promoting clean and renewable energy are channeled toward subsidies from the federal fisc, rather than diverse policies undertaken independently by state governments or regional customers and suppliers. This Article argues that, contrary to many …

Governing The Anticommons In Aggregate Litigation, D. Theodore Rave

Vanderbilt Law Review

Following the September 11, 2001 terrorist attacks, more than ten thousand rescue and cleanup workers brought individual lawsuits against New York City for respiratory and other illnesses they developed after working in the ruins of the World Trade Center. After years of litigation, the parties put together a comprehensive settlement in 2010. The defendant agreed to pay a total of $625 million so long as 95% of the plaintiffs accepted the terms of the settlement. If 100% of the plaintiffs signed on, however, the defendant was willing to increase the total settlement amount to be shared among all the plaintiffs …

Losing The Forest For The Trees: Syria, Law, And The Pragmatics Of Conflict Recognition, Laurie R. Blank, Geoffrey S. Corn

Vanderbilt Journal of Transnational Law

The situation in Syria has the potential to become a pivotal moment in the development of the law of armed conflict (LOAC). The ongoing brutality serves as a reminder of the importance of extending international humanitarian regulation into the realm of non-international armed hostilities; however, the very chaos those hostilities produce reveals critical fault lines in the current approach to determining the existence of an armed conflict. The international community's year-long reluctance to characterize the situation in Syria as an armed conflict highlights a clear disparity between the object and purpose of the LOAC and the increasingly formalistic interpretation of …

Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Z. Huq

Vanderbilt Law Review

In April 2010, the Arizona legislature enacted the Support Our Law Enforcement and Safe Neighborhoods Act. Commonly known as SB 1070, the law created a slate of new criminal offenses and arrest powers covering aliens within Arizona's borders. SB 1070 proved divisive. It inspired copycat legislation in several states, provoked sharp criticism from the legal academy, and-most relevant here- catalyzed a lawsuit by the U.S. Department of Justice seeking a preliminary injunction against the state law on the ground that it was preempted by federal law. Initially, the federal government's litigation prospects seemed dim. One term before SB 1070 reached …

Resolving The Alj Quandary, Kent Barnett

Vanderbilt Law Review

Federal administrative law judges ("ALJs") understand Euripides's irony all too well. They, along with Article I judges, are the demigods of federal adjudication. As both courts and ALJs have noted, the function of ALJs closely parallels that of Article III judges. ALJs hear evidence, decide factual issues, and apply legal principles in all formal administrative adjudications under the Administrative Procedure Act ("APA"). Indeed, they outnumber Article III judges and decide more than two hundred and fifty thousand cases each year. But they lack the defining characteristics of Article III deities.

Article III judges are installed under the Appointments Clause, enjoy …

Property: A Bundle Of Sticks Or A Tree?, Anna Di Robilant

Vanderbilt Law Review

In 1973 John Henry Merryman noted that property law is a largely unexplored field of comparative study.' According to Merryman, common lawyers and civilians have long viewed their respective property systems as radically different and hardly comparable. In Merryman's words, the civil law is a law of "ownership," while the common law is a law of "estate." Civil law systems conceive of property as ownership, as holistic dominion: exclusive, single, indivisible, and different in nature from lesser property interests. By contrast, property in the common law is pluralistic and fragmented, having at its core the estates system and the many …

Life On Streets And Trails: Fourth Amendment Rights For The Homeless And The Homeward Bound, Wesley C. Jackson

Vanderbilt Law Review

People who read law review articles usually have the resources to temporarily abscond from society on a whim, perhaps to the nearest trailhead, and begin a trek through the woods. Such readers, if they choose a well-maintained trail frequented by long-distance hikers, may come across a simple, three-sided cabin known as a shelter. There they might find a grimy and unwashed bunch, talking amongst themselves using jargon such as "blazes" and "trail angels." Some may recognize them as "thru-hikers" and wonder how long the scrawny, bearded, and overloaded travelers have been at it. But some may ask if these apparent …

Constitutional Limitations On Punitive Damages: Ambiguous Effects And Inconsistent Justifications, Benjamin J. Mcmichael

Vanderbilt Law Review

Punitive damages occupy a special place in the U.S. legal system. Courts award them in very few cases, yet they have been the center of tort reform efforts because of their controversial nature.' This controversy centers around the purposes for which punitive damages are awarded-to punish reprehensible conduct and to deter future bad acts. While compensatory damages exist to redress specific harms and to compensate a victim for a particular harm suffered, punitive damages exist to further the much broader social goals of retribution and deterrence.

Because punitive damages must be calibrated to achieve these broad social goals, they necessarily …

Hardly A Black-And-White Matter: Analyzing The Validity And Protection Of Single-Color Trademarks Within The Fashion Industry, Emilie Winckel

Vanderbilt Law Review

The fashion industry thrives because of the consuming public's desire to be affiliated with appealing brands. Some of these coveted brands are best identified by particular colors-for example, Tiffany & Co.'s blue, Hermes's orange, and Christian Louboutin's red. Others are internationally known for specific designs that incorporate color-such as Missoni's vibrant patterns. While these colors may be well- recognized symbols of specific brands, and thus deserving of trademark protection, designers rely on a broad and unrestricted array of colors in order to continue conjuring up the latest trends for each new season. Due to these often-competing interests inherent to the …

Judges And Their Emotions, 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 …

The First Year Of "Say On Pay" Under Dodd-Frank: An Empirical Analysis And Look Forward, Randall Thomas, James F. Cotter, Alan R. Palmiter

Vanderbilt Law School Faculty Publications

Using voting data from the first year of say-on-pay votes under Dodd- Frank, we look at the patterns of shareholder voting in advisory votes on exec- utive pay. Consistent with the more limited say-on-pay voting before Dodd- Frank, we find that shareholders in the first year under Dodd-Frank generally gave broad support to management pay packages. But not all pay packages received strong shareholder support. At some companies, management suf- fered the embarrassment of failed say-on-pay votes-that is, less than fifty per- cent of their company's shareholders voted in favor of the proposal. In particular, we find that poorly performing …

Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall

Vanderbilt Law School Faculty Publications

Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance …

A Dilemma Of Doctrinal Design: Rights, Identity And The Work-Family Conflict, Lauren Sudeall

Vanderbilt Law School Faculty Publications

This symposium article suggests that with regard to the work-family conflict, we may have exhausted doctrine’s potential in setting a constitutional foundation for women to be treated as equals in the workplace and requiring that they not be discriminated against in the event that they decide to start a family. For purposes of this piece, those accomplishments constitute the first phase or “first generation” of progress. This article is concerned with how doctrine relates to “second generation” issues arising from the work-family conflict: how to balance work and family once some initial level of equality has been achieved; how to …

Trends In Environmental Law Scholarship 2008-2011, Linda K. Breggin, Jacob P. Byle, Lynsey R. Gaudioso, Seamus T. Kelly

Vanderbilt Law School Faculty Publications

The Environmental Law and Policy Annual Review (ELPAR) is published by the Environmental Law Institute's (ELI's) Environmental Law Reporter in partnership with Vanderbilt University Law School. ELPAR provides a forum for the presentation and discussion of the best ideas about environmental law and policy from the legal academic literature. As part of the article selection process each year, Vanderbilt University Law School students assemble and review the environmental law articles written in the past 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 …

The Exclusionary Rule: Is It On Its Way Out? Should It Be?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This symposium, comprising six articles in addition to this one, was triggered by a spate of Supreme Court opinions occurring over the last seven years, all of which raise the two questions in the title to this article (which is also the title of the symposium). Since 1974, when United States v. Calandra definitively established deterrence as the primary objective of the suppression remedy, the Court has nibbled away at the exclusionary rule from a number of different directions. But the Court's decisions in Hudson v. Michigan (2006), Herring v. United States (2009), and Davis v. United States (2011) reveal …

Policing Public Companies: An Empirical Examination Of The Enforcement Landscape And The Role Played By State Securities Regulators, Amanda Rose, Larry J. Leblanc

Vanderbilt Law School Faculty Publications

Multiple different securities law enforcers can pursue U.S. public companies for the same misconduct. These enforcers include a variety of federal agencies, class action attorneys, and derivative litigation attorneys, as well as fifty separate state regulators. Scholars and policy makers have increasingly questioned whether the benefits of this multienforcer approach are worth the costs, or whether a more coordinated and streamlined securities enforcement regime might lead to efficiency gains. How serious are these concerns? And what role do state regulators play in the enforcement mix? Whereas the enforcement efforts of the Securities and Exchange Commission and class action lawyers have …

State Enforcement Of National Policy: A Contextual Approach (With Evidence From The Securities Realm), Amanda M. Rose

Vanderbilt Law School Faculty Publications

This Article addresses a topic of contemporary public policy significance: the optimal allocation of law enforcement authority in our federalist system. Proponents of competitive federalism have long argued that assigning concurrent enforcement authority to states and the federal government can lead to redundant expense, policy distortion, and a loss of democratic accountability. A growing literature responds to these claims, trumpeting the benefits of concurrent state-federal enforcement - most notably the potential for state regulators to remedy under-enforcement by captured federal agencies. Both bodies of scholarship are right, but also incomplete. What is missing from this rather polarized debate is a …

Is High-Altitude Mountaineering Russian Roulette?, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Whether the nature of the risks associated with climbing high-altitude (8000 m) peaks is in some sense “controllable” is a longstanding debate in the mountaineering community. Well-known mountaineers David Roberts and Ed Viesturs explore this issue in their recent memoirs. Roberts views the primary risks as “ objective ” or uncontrollable, whereas Viesturs maintains that experience and attention to safety can make a significant difference. This study sheds light on the Roberts-Viesturs debate using a comprehensive dataset of climbing on Nepalese Himalayan peaks. To test whether the data is consistent with a constant failure rate model (Roberts) or a decreasing …

The Nature And Purpose Of Evidence Theory, Michael S. Pardo

Vanderbilt Law Review

pproximately twenty-five years ago, Professor Richard Lempert, reflecting on the then-current state of evidence scholarship, noted a dramatic shift underway.' He described what had become a largely "moribund" field giving way to a burgeoning "new evidence scholarship." The scholarship in the moribund phase employed "a timid kind of deconstructionism with no overarching critical theory," was "seldom interesting," and any "potential utility" was "rarely realized"; Lempert proposed the following mock article title as a model representing the genre: "What's Wrong with the Twenty-Ninth Exception to the Hearsay Rule and How the Addition of Three Words Can Correct the Problem." By contrast, …

An American Tragedy: E-Books, Licenses, And The End Of Public Lending Libraries?, Matthew Chiarizio

Vanderbilt Law Review

The ascent of e-books raises many copyright issues both old and new, and the role of libraries in e-book lending is an important one for many librarians and readers. Libraries are an important part of a democratic society, and changes to the publishing and copyright landscape invariably affect the functions and use of libraries. Libraries have traditionally relied on the doctrine of first sale to lend physical books. The first sale doctrine allows the owner of a copyrighted work to sell, lend, or otherwise dispose of the owned copy of that work without authorization of the copyright holder. Libraries own …

Cultivating A Green Political Landscape: Lessons For Climate Change Policy From The Defeat Of California's Proposition 23, Eric Biber

Vanderbilt Law Review

In the fall of 2010, two major political battles over climate change in the United States reached their climax. At the federal level, efforts to enact comprehensive climate change legislation-already in doubt after the Senate refused to consider legislation passed by the House-were terminated for the near future by a landslide win for conservative Republicans, who are overwhelmingly hostile to climate change legislation, in midterm Congressional elections.' At the state level, California voters considered Proposition 23, a ballot initiative that would have effectively repealed the state's comprehensive global warming statute (AB 32, enacted in 2006). Yet despite the fact that …

Reconceptualizing The Burden Of Proof, Edward K. Cheng

Vanderbilt Law School Faculty Publications

The preponderance standard is conventionally described as an absolute probability threshold of 0.5. This Essay argues that this absolute characterization of the burden of proof is wrong. Rather than focusing on an absolute threshold, the Essay reconceptualizes the preponderance standard as a probability ratio and shows how doing so eliminates many of the classical problems associated with probabilistic theories of evidence. Using probability ratios eliminates the so-called Conjunction Paradox, and developing the ratio tests under a Bayesian perspective further explains the Blue Bus problem and other puzzles surrounding statistical evidence. By harmonizing probabilistic theories of proof with recent critiques advocating …

Community Control Over Camera Surveillance: A Response To Bennett Capers's "Crime, Surveillance, And Communities", Christopher Slobogin

Vanderbilt Law School Faculty Publications

Professor Capers's article helps stimulate thinking about the way in which community views and individual rights interact. In my view, where police propose to conduct surveillance of groups, as occurs with camera surveillance (including the newly developing drone camera systems)', the affected group should be heavily involved in the authorization process. If the surveillance is authorized, care must be taken to ensure that all members of the group are equally affected by it unless and until individualized suspicion, proportionate to the intrusion, develops. That formula ensures that the interests of both the collective and the individual are protected.

Dual Standards For Third-Party Intervenors: Distinguishing Between Public-Law And Private-Law Intervention, Justin P. Gunter

Vanderbilt Law Review

Courts stand as the final arbiters of many important and controversial issues in the United States. While it is the province of the judicial branch to hear "cases" and "controversies" that impact the immediate parties to a suit, many modern suits impact unrepresented parties and thus have policy implications. To describe this phenomenon, scholars use the terms "private law" and "public law." As public law gained greater prominence, commentators began to realize the need to revise the Federal Rules of Civil Procedure to facilitate this type of litigation. Historically, unrepresented parties who were affected by a suit could use the …

Looking For Trouble: An Exploration Of How To Regulate Digital Searches, Eric Yeager

Vanderbilt Law Review

Imagine that the cybercrime division of a local police force receives a report of fraudulent credit card purchases, and after linking subpoenaed credit card records to a particular shipping address, officers obtain a warrant to search the computer of the resident for evidence of identity theft and fraud. During a preliminary search of the suspect's hard drive, the investigators discover a folder marked "preteen porno pix" filled entirely with picture and video files. Knowing that the evidence they are looking for is almost certainly contained within a text file, they have little reason to believe that opening this folder will …