Law Commons^™

Causing Infringement, Mark Bartholonew, Patrick F. Mcardle

Vanderbilt Law Review

Two years ago, the outbreak of a mysterious virus captivated the world. First detected in the state of Veracruz, Mexico in April 2009, the virus hopscotched from country to country leaving a trail of death and panicked citizens. Concerned that the virus would continue to spread, world governments banned travel to affected nations and urged citizens to take precautionary measures. U.S. Vice President Biden told citizens not to take mass transit. Airports installed thermal scanners to detect and quarantine infected travelers. Thousands donned surgical masks. Despite these precautions, two months after the virus's discovery, public health authorities diagnosed a full-fledged …

Assessing The State Of State Constitutionalism, Jim Rossi

Vanderbilt Law School Faculty Publications

State constitutions are terribly important legal documents, but their interpretation is remarkably understudied (and, of course, highly undertheorized) in the academic literature. This review essay discusses Robert Williams’s welcome new book, The Law of American State Constitutions (Oxford University Press, 2009). After summarizing the content of Williams’s book, it discusses the normative significance of his work, focusing especially on his discussion of independent state constitutions and the positive theory of interpretation he advances. The essay concludes by highlighting some areas where the field of state constitutional law is in need of further advancement, including research that positions state constitutions within …

The Firm As Cartel Manager, Herbert Hovenkamp, Christopher R. Leslie

Vanderbilt Law Review

Antitrust law is the primary legal obstacle to price fixing, which is condemned by Section One of the Sherman Act. Section One condemns only concerted action between separate entities, not unilateral conduct by a single entity. Firms that engage in price fixing may try to reduce the risk of antitrust liability by structuring their actions to appear to be those of a unified single entity that is beyond the reach of Section One.

In this Article, Professors Hovenkamp and Leslie examine how price-fixing cartels govern themselves and maximize their profits by cooperating and colluding, instead of competing. They then use …

Procedure, Substance, And Erie, Jay Tidmarsh

Vanderbilt Law Review

This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that "procedure" should be understood in terms of process-in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of "procedure" and "substance" change with the context-a pillar on which present Erie analysis is based-is wrong. Finally, it suggests a single process- based principle that reconciles all of the Supreme Court's "procedural Erie" cases: that federal courts …

Just Shoot Me: Public Accommodation Anti-Discrimination Laws Take Aim At First Amendment Freedom Of Speech, James M. Gottry

Vanderbilt Law Review

Imagine a young woman, Elaine, who is a gifted photographer. She launches a small photography business with her husband, and soon she is in demand throughout the state. Her specialty is weddings. One day Elaine receives a request to photograph a same-sex commitment ceremony. Politely, she declines, explaining that she only photographs traditional weddings. Several months later, she is contacted by the state's Human Rights Commission. Elaine learns that a complaint has been filed against her, and she is being charged with discrimination on the basis of sexual orientation.

Imagine a young man, Michael, who is a gifted filmmaker. While …

Giving It Another Shot: A Reexamination Of The "Second Or Subsequent Conviction" Language Of The Firearm Possession Sentencing Statute, Rachel E. Moore

Vanderbilt Law Review

The effects of the current interpretation of the federal firearm possession sentencing statute are severe, often mandating the imposition of de facto life sentences for first-time offenders. For example, suppose a twenty-three-year-old first-time offender was found guilty in a federal district court of robbing $500 from two financial institutions in two days and carrying a single firearm during the robbery spree. Under the Federal Sentencing Guidelines, this first-time offender would be subject to a sentence ranging between forty-one and fifty-one months for each robbery. Thus, for the substantive offenses, the sentence would total eighty-two to 102 months, or six years …

Causing Infringement, Mark Bartholomew, Patrick F. Mcardle

Vanderbilt Law Review

In its most recent contributory infringement pronouncement, the Supreme Court advised courts wrestling with these issues to consult tort law's own contributory liability framework, which it described as "well established."31 The conventional wisdom among legal scholars agrees with the Court. Most scholarship in this area contends that obeisance to traditional tort law principles of contributory liability will fill the void in infringement law with answers that are adequately calibrated to the balance between incentivizing creation and permitting downstream use. This Article challenges that conventional wisdom. Although we agree that tort law can shed some much-needed light on contributory infringement, we …

Regulating Money Creation After The Crisis, Morgan Ricks

Vanderbilt Law School Faculty Publications

Like bank deposits, money market instruments function in important ways as "money." Yet our financial regulatory regime does not take this proposition seriously. The (non-government) issuers of money market instruments-almost all of which are financial firms, not commercial or industrial ones-perform an invaluable economic function. Like depository banks, they channel economic agents' transaction reserves into the capital markets. These firms thereby reduce borrowing costs and expand credit availability. However, this activity- "maturity transformation "-presents a problem. When these issuers default on their money market obligations, they generate adverse monetary consequences. This circumstance amounts to a market failure, creating a "prima …

Macro-Risks: The Challenge For Rational Risk Regulation, Michael P. Vandenbergh, Jonathan A. Gilligan

Vanderbilt Law School Faculty Publications

Drawing on the recent financial crisis, we introduce the concept of macro-risk. We distinguish between micro-risks, which can be managed within conventional economic frameworks, and macro-risks, which threaten to disrupt economic systems so much that a different approach is required. We argue that catastrophic climate change is a prime example of a macro-risk. Research by climate scientists suggests disturbingly high likelihoods of temperature increases and sea level rises that could cause the kinds of systemic failures that almost occurred with the financial system. We suggest that macro-risks should be the principal concern of rational risk assessment and management, but they …

The New Old Legal Realsim, Tracey E. George, Mitu Gulati, Ann C. Mcginley

Vanderbilt Law School Faculty Publications

Judges produce opinions for numerous purposes. A judicial opinion decides a case and informs the parties whether they won or lost. But in a common law system, the most important purpose of the opinion, particularly the appellate opinion, is to educate prospective litigants, lawyers, and lower court judges about the law: what it is and how it applies to a specific set of facts. Without this purpose, courts could more quickly and efficiently issue one-sentence rulings rather than set forth reasons. By issuing opinions, courts give actors a means of evaluating whether their actions are within the bounds of law. …

The Persistent Cultural Script Of Judicial Dispassion, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In contemporary Western jurisprudence it is never appropriate for emotion - anger, love, hatred, sadness, disgust, fear, joy - to affect judicial decision-making. A good judge should feel no emotion; if she does, she puts it aside. To call a judge emotional is a stinging insult, signifying a failure of discipline, impartiality, and reason. Insistence on judicial dispassion is a cultural script of unusual longevity and potency. But not only is the script wrong as a matter of human nature - emotion does not, in fact, invariably tend toward sloppiness, bias, and irrationality - but it is not quite so …

Economics, Politics, And The International Principles For Sound Compensation Practices: An Analysis Of Executive Pay At European Banks, Guido Ferrarini, Maria C. Ungureanu

Vanderbilt Law Review

In this Article, we submit that the compensation structures at banks before the financial crisis were not necessarily flawed and that recent reforms in this area largely reflect already existing best practices. In Part I we review recent empirical studies on corporate governance and executive pay at banks and suggest that there is no strong support for regulating bankers' compensation structures. We also argue that detailed regulation of incentives would subtract essential decisionmaking powers from boards of directors and make compensation structures too rigid.

In Part II we note that political support for regulating bankers' pay has been strong and …

Comparing Ceo Employment Contract Provisions: Differences Between Australia And The United States, Jennifer G. Hill, Ronald W. Masulis, Randall S. Thomas

Vanderbilt Law Review

This study compares CEO employment contracts across two common law countries: the United States and Australia. Although the regulatory regimes of these jurisdictions enjoy many comparable features, there are also some important institutional differences in terms of capital market, tax, and regulatory structures, which are discussed here. Debate has raged in the United States on the issue of whether executive compensation is efficient and determined at arm's length, or skewed by a power imbalance between managers and shareholders. A comparative analysis of the kind undertaken in our study provides an additional perspective on the optimal contracting and managerial power models …

Insider Trading And Ceo Pay, M. Todd Henderson

Vanderbilt Law Review

This Article presents evidence showing that boards of directors "bargain" with executives about the profits they expect to make from trades in firm stock. The evidence suggests that executives whose trading freedom increased using Rule 10b5-1 trading plans experienced reductions in other forms of pay to offset the potential gains from trading. There are two potential benefits from trading-portfolio optimization and informed trading profits- and this Article allows us to isolate them. The data show that boards pay executives in a way that reflects the profits they are expected to earn from informed trades. It also casts some doubt on …

Evolving Executive Equity Compensation And The Limits Of Optimal Contracting, David I. Walker

Vanderbilt Law Review

Executive equity compensation in the United States is evolving. At the turn of the millennium, stock options dominated the equity pay landscape, accounting for over half of the aggregate ex ante value of senior executive pay at large public companies, while restricted stock and similar compensation accounted for only about ten percent. Beginning in 2006, stock grants have displaced options as the single largest component of senior executive compensation at these firms. Accompanying this shift has been increased variation among companies in their relative emphasis on stock and options in equity pay packages. Both phenomena provide an opportunity for a …

Executive Compensation Consultants And Ceo Pay, Martin J. Conyon

Vanderbilt Law Review

This Article surveys recent empirical studies on the relation between compensation consultants and CEO pay. The economic rationale for using executive compensation consultants is that they supply valuable data, information, and professional expertise to client firms. However, critics argue that the consultant's independence might be compromised because of conflicts of interest arising from the cross selling of business services or because of the consultant's desire to obtain repeat business. The emergent empirical evidence suggests that pay consultants are important in explaining executive compensation, although the findings are sometimes mixed and the precise effects of consultants on pay are yet to …

Paying For Advice: The Role Of The Remuneration Consultant In U.K. Listed Companies, Ruth Bender

Vanderbilt Law Review

Compensation consultants are an integral part of the process of determining executive pay in large listed companies. This study reports interview-based research with protagonists in setting executive compensation in twelve FTSE 350 companies and addresses why the consultants are used, what they do, and how they are perceived.

Consultants have several important roles. Firstly, they act as experts, providing market data and advising on plan design and implementation. Because of this role, they not only guide their clients as to the requirements of the market, they also help create those selfsame market practices and norms. They also have a role …

Symposium On Executive Compensation Keynote Address, Kenneth R. Feinberg

Vanderbilt Law Review

I want to thank Richard Nagareda for inviting me to Vanderbilt; he's an old friend. I am very honored to return to Vanderbilt. I taught a course at Vanderbilt, and I loved teaching here. I loved going to the Country Music Hall of Fame and learning more about Patsy Cline and Johnny Cash. Really, it was great. I've already received an invitation from Dean Jim Bradford to come back to the business school and the law school and to participate in an interdisciplinary look at executive compensation. I hope to return. But when I saw that the Vanderbilt Law Review …

Comparing Ceo Employment Contract Provisions: Differences Between Australia And The United States, Randall Thomas, Jennifer G. Hill, Ronald W. Masulis

Vanderbilt Law School Faculty Publications

The results of our comparison of U.S. and Australian contracts offer some interesting contrasts with several earlier studies that compare U.S. and U.K. CEO compensation. In those prior studies, the authors conclude that U.S. CEOs' compensation is significantly higher than U.K. CEOs' compensation. What is interesting about our initial results is that U.S. CEOs clearly do not have higher base salaries in comparison to Australia. On the other hand, U.S. contracts are much more likely to include restricted stock and stock option features, which generally require payment after a CEO remains at the firm a fixed number of years, typically …

Executive Compensation In The Courts: Board Capture, Optimal Contracting, And Officers' Fiduciary Duties, Randall Thomas, Harwell Wells

Vanderbilt Law School Faculty Publications

This Article proposes a new approach to monitoring executive compensation. While the public seems convinced that executives at public corporations are paid too much, so far attempts to rein in executive compensation have met with little success. Several approaches have been tried - requiring large pay packages to consist predominantly of incentive pay, new procedures for approving pay, mobilization of public outrage at giant compensation packages. None, however, has stemmed the growth of executive compensation, or convinced opponents of large pay packages that such pay is either fair or deserved. Here we suggest a new approach, one that turns to …

Adolescent Brain Science After Graham V. Florida, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without possibility of parole for a non-homicide crime committed when the offender was under the age of eighteen. In an earlier Article, The False Promise of Adolescent Brain Science in Juvenile Justice, this author noted the pendency of Graham and its companion case, in which petitioners and their amici offered neuroscientific arguments closely paralleling those made by the defendant in Roper v. Simmons. Kennedy’s opinion in Graham clarified what his opinion in Roper had left ambiguous: the Court believes neuroscience relevant to general …

Post Padilla: Padilla's Puzzles For Review In State And Federal Courts, Nancy J. King, Gray Proctor

Vanderbilt Law School Faculty Publications

This article addresses questions that may face courts as defendants seek relief under the Court’s decision in Padilla v. Kentucky, which held that counsel’s failure to adequately inform the defendant of the deportation consequences of conviction constituted deficient performance under the Sixth Amendment. Issues addressed include: express waivers of review in plea agreements; what constitutes deficient advice and prejudice sufficient for a finding of ineffective assistance; the retroactive application of Padilla to cases on post-conviction review; federal habeas review of state court decisions rejecting Padilla-type claims; procedural default, successive petition, and time bars to federal habeas review of Padilla claims; …

In Search Of Guidance: An Examination Of Past, Present, And Future Adjudications Of Domestic Violence Asylum Claims, Barbara R. Barreno

Vanderbilt Law Review

L-R- is a Mexican woman who applied for asylum in the United States in 2005. She is one of countless victims of gender-based violence, which in recent decades has become a matter of international concern and which policymakers around the world have taken steps to combat. The United States has been among the nations that have made eliminating gender-based violence a priority by passing such legislation as the Violence Against Women Act ("VAWA") and by creating two special forms of visas for victims of domestic violence. While great strides have been taken to protect immigrant women who are already in …

Unreliable Securities For Retirement Income Security: Certifying The Erisa Stock-Drop Class, Lauren N. Fromme

Vanderbilt Law Review

Catherine Stevens had built her retirement savings "a dollar at a time over a lifetime of hard work" when it was "reduced to virtually zero" at Enron's collapse. "I feel very strongly that we have all been wronged," she said. Her plans for a secure future had been destroyed. Almost eight years after Enron's failure, stories like Catherine's persist, and employee retirement income security remains as comforting as an imaginary friend. A falling stock market in the wake of financial finagling leaves many employee retirement plans dangerously insecure. Employees like Catherine who bet their futures on their company's stock have …

The Limited Diagnosticity Of Criminal Trials, Dan Simon

Vanderbilt Law Review

Few political institutions play as palpable, ubiquitous, and solemn a role in the U.S. public life as the criminal justice system. The task of determining the defendant's criminal liability with a high degree of certitude is performed through the ritualized and highly proceduralized adjudicative process, with the trial at its core. The United States Supreme Court has portrayed the criminal trial as a "decisive and portentous" and "paramount" event. Trials are considered "the central institution of law as we know it," the "crown jewel" of the legal system. Amidst its multiple purposes, an essential objective of the criminal trial is …

Localism And Capital Punishment, Stephen F. Smith

Vanderbilt Law Review

No abstract provided.

Designing Populations: Lessons In Power And Population Production From Nineteenth-Century Immigration Law, Juliet P. Strumpf

Vanderbilt Law Review En Banc

No abstract provided.

On Saving The Death Penalty: A Comment On Adam Gershowitz's Statewide Capital Punishment, Eric Berger

Vanderbilt Law Review En Banc

No abstract provided.

Localism And Capital Punishment, Stephen F. Smith

Vanderbilt Law Review En Banc

No abstract provided.

Silence Of The Spam: Improving The Can-Spam Act By Including An Expanded Private Cause Of Action, David J. Rutenberg

Vanderbilt Journal of Entertainment & Technology Law

In the last decade, email spam has become more than just an annoyance for email users. Unsolicited messages now comprise more than 95 percent of all email sent worldwide. This costs US businesses billions of dollars in lost productivity each year. The US Congress passed the CAN-SPAM Act of 2003 to regulate the spam industry. Unfortunately, data show that spam only increased since the Act's passage. Part of the reason for this failure is that the Act only authorizes the Federal Trade Commission, state attorneys general, and Internet Service Providers to bring action under its provisions. Each of these authorized …