Law Commons^™

The Untouchables: Private Military Contractors' Criminal Accountability Under The Ucmj, Katherin J. Chapman

Vanderbilt Law Review

September 16, 2007 has been called Baghdad's "Bloody Sunday."' On that scorching afternoon in Baghdad, Iraq, a team of Blackwater Worldwide private military contractors slew seventeen Iraqi civilianS and wounded twenty-seven others. A Blackwater spokesperson claimed that the civilian contractors reacted in response to an attack by enemy combatants and "heroically defended American lives." Despite such claims, U.S. soldiers who arrived at the scene within twenty-five minutes found no evidence of enemy activity and characterized the event as criminal. Despite such evidence and notwithstanding four potential sources of criminal law-international law, host-nation law, U.S. civilian law, and U.S. military law-these …

Optimizing Private Antitrust Enforcement, Daniel A. Crane

Vanderbilt Law Review

Private litigation is the predominant means of antitrust enforcement in the United States. Other jurisdictions around the world are increasingly implementing private enforcement models. Private enforcement is usually justified on either compensation or deterrence grounds. While the choice between these two goals matters, private litigation is not very effective at advancing either one. Compensation fails because the true economic victims of most antitrust violations are usually downstream consumers who are too numerous and remote to locate and compensate. Deterrence is ineffective because the time lag between the planning of the violation and the legal judgment day is usually so long …

Assisted Suicide, Morality, And Law: Why Prohibiting Assisted Suicide Violates The Establishment Clause, Edward Rubin

Vanderbilt Law Review

This Article argues that general prohibitions against assisted suicide violate the Establishment Clause because they support a particular and religiously based moral position. Many laws overlap with religious proscriptions, of course. The conclusion that laws against assisted suicide are unconstitutional because of their religious origin is based on the specific historical context of these laws within our existing culture. Over the course of Western civilization, attitudes about suicide have oscillated from positive approbation in many Greek and Roman sources, to outright and unalterable opposition by Christian writers, to acceptance and limited approval by contemporary secular thinkers and health practitioners. At …

Constitutionality Of Cyberbullying Laws: Keeping The Online Playground Safe For Both Teens And Free Speech, Alison V. King

Vanderbilt Law Review

The Internet is a blessing and a curse. Along with the manifold benefits the Internet provides-electronic research, instantaneous news, social networking, online shopping, to name a few-comes a host of dangers: online harassment and cyberbullying, hacking, voyeurism, identity theft, phishing, and perhaps still more perils that have yet to appear. The Internet creates a virtual world that can result in very real consequences for people's lives. This creates a challenge for parents, schools, and policymakers attempting to keep pace with rapidly developing technologies and to provide adequate protections for children. The even greater challenge, however, is to balance these vital …

Cleaning Up Punitive Damages: A Statutory Solution For Unguided Punitive-Damages Awards In Maritime Cases, Richard A. Chastain

Vanderbilt Law Review

Intentionally destroying property-boundary markers by sawing down the posts.' Causing environmental disasters. Fraudulently refusing to settle insurance claims within coverage limits. Bad-faith dealing in big oil contracts. Hiding mild weather damage to new vehicles. Creating and marketing cigarettes while knowing about their carcinogenic risks. Contributing to automobile accidents. No, these are not items on some nefarious villain's to-do list. These are all examples of cases where courts have awarded punitive damages against the tortfeasors on top of their compensatory liability. While each tort is unquestionably wrong, some certainly appear more wrong than others.

In recent years, punitive damages have become …

The Future Of Agency Independence, Lisa S. Bressman, Robert B. Thompson

Vanderbilt Law Review

Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, …

Facilitating Wage Theft: How Courts Use Procedural Rules To Undermine Substantive Rights Of Low-Wage Workers, Nantiya Ruan

Vanderbilt Law Review

This Article examines this rising phenomenon by first outlining the pressing societal need for collective litigation to ensure In race and sex discrimination class actions, if a defendant employer makes a Rule 68 offer of judgment to the named plaintiffs, courts routinely refuse to dismiss the class claims. In stark contrast, in collective actions for failure to pay lawful wages, if a defendant employer makes a Rule 68 offer of judgment, courts will often dismiss the entire collective action as having been mooted by the named plaintiffs' recovery. The outcome of such a dichotomy is that low-wage workers are increasingly …

The Consequences Of Congress's Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Vanderbilt Law Review

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …

Bringing It All Back Home: Establishing A Coherent Constitutional Framework For The Re-Regulation Of Homeschooling, Timothy B. Waddell

Vanderbilt Law Review

Bobby and Esther Riddle, the Supreme Court of West Virginia conceded, "did an excellent job" teaching their children, Jill and Tim- possibly better than the public schools could do."' Like many fundamentalist parents, the Riddles believed the Bible required them personally to teach their children, protect them from heresy and worldly influence, and resist government intrusions that could imperil their eternal salvation. Moreover, they believed they had constitutional rights to do so. Jill and Tim Riddle studied the same subjects as public schoolchildren, but their studies were interwoven with religious lessons based upon their parents' idiosyncratic view of Christian doctrine. …

Statewide Capital Punishment: The Case For Eliminating Counties' Role In The Death Penalty, Adam M. Gershowitz

Vanderbilt Law Review

The State of Texas is known as the capital of capital punishment.' But is that reputation deserved? In a way, yes. Texas sends more people to death row than any other state, and it executes them far faster. However, in another way, it is incorrect to suggest that "the State" of Texas is a prolific user of capital punishment. Death penalty cases are prosecuted by counties, not the state, and a majority of Texas's counties have never imposed the death penalty. In fact, only a handful of Texas's 254 counties regularly seek the death penalty. Many other states have a …

Preempting Discrimination: Lessons From The Genetic Information Nondiscrimination Act, Jessica L. Roberts

Vanderbilt Law Review

The Genetic Information Nondiscrimination Act ("GINA'), enacted in May 2008, protects individuals against discrimination by insurance companies and employers on the basis of genetic information. GINA is not only the first civil rights law of the new millennium, but it is also the first preemptive antidiscrimination statute in American history. Traditionally, Congress has passed retrospective antidiscrimination legislation, reacting to existing discriminatory regimes. However, little evidence indicates that genetic-information discrimination is currently taking place on a significant scale. Thus, unlike the laws of the twentieth century, GINA attempts to eliminate a new brand of discrimination before it takes hold. This Article …

Order At The End Of Life: Establishing A Clear And Fair Mechanism For The Resolution Of Futility Disputes, Ashley Bassel

Vanderbilt Law Review

On January 22, 2008, Ruben Betancourt was admitted to Trinitas Regional Medical Center in New Jersey for surgery for malignant thymoma, a cancer of the thymus gland (a small organ underneath the breastbone).' Following surgery, the patient developed brain damage due to lack of oxygen and, as a result, lapsed into unconsciousness. For the next five months, Mr. Betancourt was admitted to various medical facilities and readmitted finally to Trinitas in July 2008 for renal failure. For six more months, the unconscious patient remained in the hospital on an artificial ventilator, receiving renal dialysis and nutrition through tube feeding.

The …

Betrayal And Exploitation In Contract Law: A Comment On Breach Is For Suckers, Steven W. Feldman

Vanderbilt Law Review

No abstract provided.

With Bases Loaded, Alito Hits A Home Run, Kristin A. Collins

Vanderbilt Law Review

No abstract provided.

Common Answers For Class Certification, Richard A. Nagareda

Vanderbilt Law Review

No abstract provided.

Slipping Away From Justice: The Effect Of Attorney Skill On Trial Outcomes, Jennifer B. Shinall

Vanderbilt Law Review

Fred Goldman blamed the defense attorneys when a Los Angeles jury found O.J. Simpson not guilty of murdering his son, Ron Goldman, and Nicole Brown Simpson on October 3, 1995. Yet Goldman was not the only one who blamed the defense attorneys for the acquittal; much of the media agreed that Simpson was guilty and had escaped his rightful punishment. As one New York Times reporter lamented, "To watch Mr. Simpson slip away from justice ... was an infuriating sight." People who believed in Simpson's guilt cited Johnnie Cochran's decision to "play the race card" and his clever catch phrases …

The Quasi-Class Action Method Of Managing Multi-District Litigations: Problems And A Proposal, Charles Silver, Geoffrey P. Miller

Vanderbilt Law Review

This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys' compensation, (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees, and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily …

Cooperative Interbranch Federalism: Certification Of State-Law Questions By Federal Agencies, Verity Winship

Vanderbilt Law Review

When an unresolved state-law question arises in federal court, the court may certify it to the relevant state court. The practice of certification from one court to another has been widely adopted and has been touted as "help[ing] build a cooperative judicial federalism." This Article proposes that states promote cooperative interbranch federalism by allowing federal agencies to certify unresolved state-law questions to state courts. It draws on Delaware's recent expansion of potential certifying entities to the Securities and Exchange Commission to argue that this innovation should be extended to other states and other federal agencies. Certification from federal agencies to …

Evaluating Norms: An Empirical Analysis Of The Relationship Between Norm-Content, Operator, And Charitable Behavior, Brian Sheppard, Fiery Cushman

Vanderbilt Law Review

There are several kinds of norms, and this variety can lead to spirited debate about the best norm to employ for the regulation of a particular activity. Should the norm be mandatory or aspirational? A rule or a standard? One important area in which norm-choice has come to the fore is the American Bar Association's oversight of pro bono work. Currently, the organization utilizes an aspirational norm recommending that lawyers perform at least fifty pro bono hours annually, but there is pressure to adopt some sort of mandatory rubric. Inspired by this debate, we have designed and implemented an experiment …

Subverting Shareholder Rights: Lessons From News Corp.'S Migration To Delaware, Jennifer G. Hill

Vanderbilt Law Review

Convergence theory and shareholder empowerment represent two major debates in contemporary corporate governance. A pervasive underlying assumption in these debates is that a high level of corporate governance homogeneity exists within the common law world in relation to shareholder rights. This Article challenges that assumption through a detailed case study of the decision by News Corporation ("News Corp.") to move from Australia to Delaware. As events surrounding News Corp.'s reincorporation illustrate, although there are undoubtedly basic similarities between corporate law in the United States and in other common law jurisdictions, there are also fascinating, but underappreciated, differences.

In late 2007, …

With Bases Loaded, Alito Hits A Home Run, Ellen S. Podgor

Vanderbilt Law Review

No abstract provided.

The Curse Of Bigness And The Optimal Size Of Class Actions, Alexandra D. Lahav

Vanderbilt Law Review

No abstract provided.

Good Causes And Bad Science, Gregory Mitchell

Vanderbilt Law Review

No abstract provided.

"Objection: Your Honor Is Being Unreasonable!"--Law And Policy Opposing The Federal Sentencing Order Objection Requirement, Benjamin K. Raybin

Vanderbilt Law Review

"I think you ought to object, counselor," boomed the judge.' One could not help but to be taken aback: this instruction was not directed towards a pro se defendant, nor was it addressing an action by an opposing party. Instead, the judge had actually suggested-with a straight face and a hint of irony-that an attorney object to the sentence the judge had just imposed. Unlike the attorney, the judge had been following the development of a quirk in the circuit's sentencing law. In United States v. Vonner, the Sixth Circuit had recently held that a party must object to a …

Auditing The Pcaob: A Test To The Accountability Of The Uniquely Structured Regulator Of Accountants, Michael A. Thomason, Jr.

Vanderbilt Law Review

After a slew of highly publicized corporate accounting scandals during the early 2000s at prominent companies-including Enron, WorldCom, Adelphia, and Tyco-public confidence in the integrity of financial reporting by public companies was undoubtedly shaken. Several major financial reporting frauds demonstrated serious weaknesses with the then self-regulated accounting profession, including the failure of auditors to detect those companies that were "cooking their books." The collapse of several prominent companies not only affected top executives, who often were subjected to civil and criminal charges, but also produced harsh consequences for several other constituencies who relied on the integrity of the accounting firms …

The End Of Objector Blackmail?, Brian T. Fitzpatrick

Vanderbilt Law Review

For many years, courts and commentators have been concerned about a phenomenon in class action litigation referred to as objector "blackmail." The term "blackmail" is used figuratively rather than literally; so-called objector "blackmail" is simply a specific application of the general concern with legal regimes that permit one or more individuals to "hold out" and disrupt collective action. The holdout problem in class action litigation stems from the following series of events: When a class action is settled, class members who do not like the proposed settlement are permitted to file objections with the federal district court that must approve …

Fearing Fear Itself: Photo Identification Laws, Fear Of Fraud, And The Fundamental Right To Vote, Joel A. Heller

Vanderbilt Law Review

In his first inaugural address, President Franklin Roosevelt assured the American people that "the only thing we have to fear is fear itself." President Roosevelt's famous statement begs the question, however, of why we should fear fear itself. What, or whom, does fear harm? When faced with the presence of fear, society must consider what steps it is willing to take and what it is willing to give up in order to address that fear. These considerations become particularly acute when the government uses the existence of fear as a rationale for legislation. The propriety of fear-based lawmaking is questionable, …

A Uniform System For The Enforceability Of Forum Selection Clauses In Federal Courts, Ryan T. Holt

Vanderbilt Law Review

In the early 1980s, a successful and ambitious Alabama businessman named Walter H. Stewart purchased a failing local copying business. Through the Stewart Organization, a corporation he controlled, Stewart sought to steer this troubled business to the realm of profitability. To do so, he entered into a dealership contract with Ricoh Corporation, a national manufacturer of copy machines that conducted its operations in New York. Unfortunately, their relationship soured. Stewart sued Ricoh in an Alabama federal district court, basing jurisdiction on diversity of citizenship. Ricoh did not want to litigate in Alabama, and the original dealership contract seemed to provide …

Jumping The Pond: Transnational Law And The Future Of Chemical Regulation, Noah M. Sachs

Vanderbilt Law Review

Just as domestic pollution can cause transnational externalities, domestic environmental regulation can create transnational ripple effects in other jurisdictions. In this Article, I show how chemical regulation-long a weak link in the network of U.S. environmental laws-is about to be reshaped and reformed through the extraterritorial ripple effects of new European Union legislation. Contributing to both international law and environmental law scholarship, this Article shows how transnational information flows can be harnessed to end the longstanding drought of data on chemical toxicity in the United States.

Part I of this Article critiques the U.S. chemical regulatory regime, arguing that a …

Does Copyright Law Promote Creativity? An Empirical Analysis Of Copyright's Bounty, Raymond S. Ray, Jiayang Sun, Yiying Fan

Vanderbilt Law Review

Modern copyright law is based upon a theory: increase copyright protection and you increase the number of creative works available to society. This theory has been the driving force behind an economic vision that has expanded, beyond all recognition, the original law created by the Statute of Anne. And with this expansion, we are told that the costs associated with copyright are worthwhile because of the bounty it produces. What if this theory could be tested? After all, this is not a question of faith or morality, nor is it a statement on how humans should behave; it is a …