Law Commons^™

The Search For Due Process In Civil Commitment Hearings: How Procedural Realities Have Altered Substantive Standards, Christyne E. Ferris

Vanderbilt Law Review

The civil commitment of mentally ill individuals presents the legal system with an intractable question: When should the law deprive someone of the fundamental right to liberty based on a prediction of future dangerousness? Advocates of both increased and decreased levels of civil commitment offer compelling case studies to help resolve the question. The former point to high profile events like the Virginia Tech shooting, in which mandatory incapacitation of the perpetrator at the first sign of mental illness could have prevented a senseless tragedy. The latter highlight the lives of individuals like Kenneth Donaldson, whose father had him committed …

Toward A Rfra That Works, Nicholas Nugent

Vanderbilt Law Review

The history of the Supreme Court's First Amendment jurisprudence regarding the proper standard of protection for the free exercise of religion is complicated. In determining how the First Amendment speaks to situations in which generally applicable health, welfare, and safety laws incidentally or accidentally burden certain individuals' religious practices, the Court has vacillated between different standards and different extremes, overruling itself several times. Early on, the Court held that, provided the government did not interfere deliberately with religion for religious reasons, an inadvertent interference with religious practice raised no Free xercise Clause problem,' "no matter how trivial the state's nonreligious …

Working At The Boundaries Of Markets: Prison Labor And The Economic Dimension Of Employment Relationships, Noah D. Zatz

Vanderbilt Law Review

The "who" question is prominent in recent legal scholarship about work: Who is recognized as a worker, and who is left out? Roughly speaking, two distinct conversations pursue this question. One analyzes the centrality of market work and questions whether other activities-nonmarket work-should be incorporated into legal regimes of worker support and protection. This inquiry emerges from feminist scholarship, focuses on families and caregiving, and primarily considers reforms in who counts as a worker for the purposes of family, welfare, social insurance, and tax law. The boundaries of employment largely are taken for granted, and the problem is whether to …

Reformulating Outrage: A Critical Analysis Of The Problematic Tort Of Iied, Russell Fraker

Vanderbilt Law Review

The intentional infliction of emotional distress ("IIED"), also known as the tort of outrage, is a relatively new cause of action, first appearing in the legal academic literature during the 1930s. Since that time, IIED has gained widespread acceptance and is now recognized in all U.S. jurisdictions, with most courts invoking the definition set forth in the Restatement (Second) of Torts. Despite this general acceptance of the tort, courts routinely assert that IIED is a disfavored cause of action. Courts appear wary of holding defendants liable for plaintiffs' emotional injuries and therefore seek to discourage such claims.

In their efforts …

The Evolving Role Of Institutional Investors In Corporate Governance And Corporate Litigation, Randall S. Thomas

Vanderbilt Law Review

This Symposium volume of the Vanderbilt Law Review, sponsored by the Institute for Law and Economic Policy ("ILEP"), focuses on the critical role of institutional investors in the modern American corporation. The agency cost model of the corporation tells us that in a dispersed ownership system, such as the U.S. system, large, motivated shareholders can play an important role in reducing the agency costs of equity by closely monitoring the actions of corporate management.1 Activist investors can use their voting powers, their power to file suit, and their power to sell their interests in the firm, to align the interests …

Hands-Off Options, Jesse M. Fried

Vanderbilt Law Review

Executive compensation long has attracted considerable interest from investors, academics, regulators, and the media. It received increased attention in the wake of the Enron and other corporate governance scandals that erupted at the beginning of the century. Hundreds of firms were found to have engaged in various forms of earnings manipulation that, ultimately, destroyed tens of billions of dollars of social value. Much of this earnings manipulation was linked to executives' pay arrangements, such as their ability to time the unwinding of their equity incentives. The scandals eventually led to some of the most important corporate governance reforms in decades, …

Why Ratify? Lessons From Treaty Ratification Campaigns, Uta Oberdorster

Vanderbilt Law Review

n December 18, 1990, the United Nations ("UN") General Assembly approved the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ("Migrant Convention"). Several years later, international non-governmental organizations ("NGOs") initiated a global campaign to encourage states to ratify the Migrant Convention. Thirteen member organizations continue this campaign today, including Human Rights Watch, International Labour Office, and Amnesty International. The Mexican government and the UN generously funded the campaign for many years, and campaign members worked hard to produce campaign materials, organize awareness raising events, and release press statements. Despite these efforts, the …

Proxy Contests In An Era Of Increasing Shareholder Power: Forget Issuer Proxy Access And Focus On E-Proxy, Jeffrey N. Gordon

Vanderbilt Law Review

The current debate over shareholder access to the issuer's proxy statement for the purpose of making director nominations is both overstated in its importance and misses the serious issue in question. The Securities and Exchange Commission's ("SEC's") new e- proxy rules, which permit reliance on proxy materials posted on a website, should substantially reduce the production and distribution cost differences between a meaningful contest waged via the issuer's proxy and a freestanding proxy solicitation. No matter which avenue is used, however, the serious question relates to the appropriate disclosure required of a shareholder nominator. Should the nominator be subject to …

Non-Judicial Precedent, Michael J. Gerhardt

Vanderbilt Law Review

This Article proposes a new paradigm for analyzing the role of precedent in constitutional law. The conventional perspective equates precedent with judicial decisions, particularly those of the Supreme Court, and almost totally ignores the constitutional significance of precedents made by public authorities other than courts. Yet, non- judicial actors produce precedents that are more pervasive than those made by courts in constitutional law. Non-judicial precedents are not only confined to the backwaters of constitutional law, but they also pertain to serious constitutional matters-presidential succession, secession, congressional power to remove Presidents and Justices, and the respective authorities of the President and …

The Lead Plaintiff Provisions Of The Pslra After A Decade, Or "Look What's Happened To My Baby", Elliott J. Weiss

Vanderbilt Law Review

In 1995, my colleague John Beckerman and I had an experience shared by very few legal academics. We mailed the galley proofs of an article that we had written to the staff of a Senate Committee and then saw the Committee, the Senate, and the full Congress enact into law a bill that included all of the recommendations in our article. The article was Let the Money Do the Monitoring: How Institutional Investors Can Reduce Agency Costs in Securities Class Actions; the law was the Private Securities Litigation Reform Act of 1995 ("PSLRA"). The relevant provisions of the PSLRA, now …

There Are Plaintiffs And ... There Are Plaintiffs: An Empirical Analysis Of Securities Class Action Settlements, James D. Cox, Randall S. Thomas, Lynn Bai

Vanderbilt Law Review

Reform of the securities class action is once again the subject of national debate. The impetus for this debate is the reports of three different groups-the Committee on Capital Market Regulation,' the Commission on the Regulation of U.S. Capital Markets in the 21st Century, and McKinsey & Company.3 Each of the reports focuses on a single theme: how the contemporary regulatory culture places U.S. capital markets at a competitive disadvantage to foreign markets. While the reports target multiple regulatory forces in their calls for reform, each report singles out securities class actions as one of the prime villains that place …

A Fresh Look At Director "Independence": Mutual Fund Fee Litigation And "Gartenberg" At Twenty-Five, Lyman Johnson

Vanderbilt Law Review

Today, the concept of the "independent" director is widely, if not universally, regarded as critical to the healthy governance of public corporations.' The concept remains fiercely contested, however, in the governance of investment companies, including mutual funds. This resistance appears on two fronts, one of which is quite visible, while the other is often overlooked. The more obvious battle over director independence has occurred in response to the Securities and Exchange Commission's ("SEC's") rulemaking effort to alter the standard for granting certain regulatory privileges under the Investment Company Act (the "Act").' The SEC, among its other reforms, sought to limit …

Small Claim Mass Fraud Actions: A Proposal For Aggregate Litigation Under Rico, Leah Bressack

Vanderbilt Law Review

Assume that, tomorrow, a large company advertises a "miracle pill" that it claims will cure all forms of cancer. The company uses a sophisticated national marketing campaign to convey a strong health assurance message, which it tailors to specific audiences: women with breast cancer, men with prostate cancer, older adults with intestinal cancer, and children with leukemia. In response to the national campaign, consumers across the country purchase the pill, which costs $10. Only then do consumers discover that the pill is worthless and that the company intentionally defrauded them.

The Racketeer Influenced and Corrupt Organizations ("RICO") statute provides a …

Are An Empty Head And A Pure Heart Enough? Mens Rea Standards For Judge-Imposed Rule 11 Sanctions And Their Effect On Attorney Action, Sybil L. Dunlop

Vanderbilt Law Review

"In her wildest dreams, Barbie could not have imagined herself in the middle of Rule 11 proceedings."' However, in 2002, Mattel's Barbie Doll found herself in the center of "acrimonious litigation." Attorney James Hicks brought suit on behalf of Harry Christian, claiming that the Cool Blue Barbie infringed on the Christian Claudene Doll's copyright. Hicks, however, had failed to discover that Mattel designed Cool Blue Barbie six years before Christian's Claudine Doll. In light of this egregious error, the Ninth Circuit held that the district court did not abuse its discretion in finding Hicks' complaint frivolous under Rule 11. Barbie …

On Beyond Calpers: Survey Evidence On The Developing Role Of Public Pension Funds In Corporate Governance, Stephen J. Choi, Jill E. Fisch

Vanderbilt Law Review

In recent years, the California Public Employees Pension System ("CalPERS") has received extensive attention for its active participation in corporate governance. CalPERS's activities established it as a leader among activist institutions. CalPERS's Murray and Kathleen Bring Professor of Law, New York University School of Law. T.J. Maloney Professor of Business Law, Fordham Law School. Thanks to Jeff Gordon, Keith Johnson, Un Kyung Park, Wayne Schneider, Damon Silvers, Randall Thomas, and John Wilcox for their valuable help in project design and for their useful comments.

Strategy was based on identifying underperforming companies with poor governance practices and then working to change …

The Forgotten Derivative Suit, Kenneth B. Davis, Jr.

Vanderbilt Law Review

One of U.S. corporate law's most salient features is its flexibility. Those who control and manage the corporation are given a long leash. This is particularly evident when the United States is compared with other countries in studies like the World Bank's annual Doing Business project. According to the detailed study that developed the World Bank methodology for measuring investor protection,1 the United States scored a 0.33 for "ex ante private control of self-dealing." This was not only below the world average of 0.36, but also well below the 0.58 average for common law countries. The United Kingdom, in contrast, …

Increasing The Effectiveness Of The Security Council's Chapter Vii Authority In The Current Situations Before The International Criminal Court, Elizabeth C. Minogue

Vanderbilt Law Review

In 2003, the world was shocked and horrified to hear of the widespread killing, torture, forced displacement, and other atrocities visited upon the people of Darfur in the Sudan by the Sudanese Armed Forces ("SAF") and Arab Janjaweed militias. The SAF and Janjaweed allegedly were fighting organized rebel groups, but instead of targeting the rebels, they attacked civilian towns and villages based on the rationale that the civilians supported rebel forces. The United States defined the killings as genocide and pushed the United Nations to develop a court to try and punish those who committed these terrible crimes. However, instead …

Public Pension Funds As Shareholder Activists: A Comment On Choi And Fisch, Randall S. Thomas

Vanderbilt Law Review

No abstract provided.

Constitutional Evidence Law, Alex Stein

Vanderbilt Law Review

This Article identifies the causes and consequences of a puzzling asymmetry in constitutional law. Of the three facets of adjudicative factfinding-evidence, procedure, and rules of decision- only two are constitutionalized. Constitutional law regulates procedural and decisional rules, but not whether the evidence that factfinders use is adequate.

Constitutional law regulates procedure through a set of rules that determine a person's power to control the trial by adducing evidence in support of her case and by examining the evidence of her adversary. Constitutional law regulates decisionmaking by setting probability requirements for findings of fact-standards of proof-and by allocating the burdens of …

The Individualization Fallacy In Forensic Science Evidence, Michael J. Saks, Jonathan J. Koehler

Vanderbilt Law Review

Forensic identification science involves two fundamental steps. The first step is to compare a questioned item of evidence to an exemplar from a known source and judge whether they appear so alike that they can be said to match. The second step is to assess the meaning of that reported match: What is the probability that the questioned and the known originated from the same source?

Different risks of error are present at each step. The risk of error in the first step is that a reported match between a questioned and a known sample might not really match. Even …

Wrongs Without Recourse: A Comment On Jason Solomon's Judging Plaintiffs, John C.P. Goldberg

Vanderbilt Law Review

No abstract provided.

Changing The Rules Of Establishment Clause Litigation: An Alternative To The Public Expression Of Religion Act, Christopher D. Tomlinson

Vanderbilt Law Review

In 2004, the American Civil Liberties Union ("ACLU") threatened to sue the city of Redlands, California, if it did not remove a small cross from its city seal.' The cross represented the city's religious heritage and its history as a city of churches. Instead of facing the possibility of litigation and the more daunting risk of losing in court and being forced to pay the ACLU's attorneys' fees in addition to its own, the Redlands City Council agreed to change the seal. The City of Redlands not only could ill afford the risk of paying the ACLU's attorneys' fees; it …

Is There A Moral Justification For Redressing Historical Injustices?, Katrina M. Wyman

Vanderbilt Law Review

In recent years, there have been lively popular and academic debates in the United States and elsewhere about whether injustices committed decades or even centuries ago should be redressed through official apologies, commissions of inquiry, reparations, and restitution. In the American context, the historical injustices for which redress has been pursued, and in some cases granted, include the internment of Japanese Americans during World War II, the Holocaust, and the mistreatment of Native Americans. Recently, the most prominent debate in the United States has been about whether federal and state governments and corporations should pay reparations to African Americans for …

Offender Profiling And Expert Testimony: Scientifically Valid Or Glorified Results?, James A. George

Vanderbilt Law Review

A hallmark of Sherlock Holmes is his ability to solve complex crimes with well-staged performances. His flair for the shrewd and dramatic apprehension of a suspect in an inscrutable case often left his loyal companion Watson in awe, the local police investigators mystified, and the perpetrator thwarted. Holmes's admirers speculated that he must have had a special gift, maybe even psychic powers, which allowed him to solve any case. In reality, as Holmes always explained to his slow-witted companions, it was his insightful, rational, and logical approach to solving the mystery that inexorably led him to the solution.

Depictions of …

Chief Judges: The Limits Of Attitudinal Theory And Possible Paradox Of Managerial Judging, Tracey E. George, Albert H. Yoon

Vanderbilt Law Review

Grutter v. Bollinger is familiar to American lawyers, academics, and law students as the Supreme Court decision allowing the consideration of race in law school admissions.1 Grutter's procedural history is nearly as noteworthy as its substantive holding. The University of Michigan Law School, after losing in federal district court, appealed to the U.S. Court of Appeals for the Sixth Circuit. Three Democratic appointees were assigned to the panel: Judges Karen Nelson Moore and Martha Craig Daughtrey, who had heard an earlier interlocutory appeal, and Chief Judge Boyce Martin, who replaced the designated district judge from the earlier panel. The white …

Rodrigo's Corrido: Race, Postcolonial Theory, And U.S. Civil Rights, Richard Delgado

Vanderbilt Law Review

Richard Delgado enlists his alter ego, Rodrigo, to analyze Latino legal history and civil rights. Encountering "the Professor" after testifying at a hearing on an immigration bill, Rodrigo excitedly tells his old friend and mentor about a new body of writing he has come across. Postcolonial theory, which deals with issues such as cultural survival, resistance, and collaboration, can help move American civil rights scholarship beyond its current impasse. Over dinner, Rodrigo demonstrates how insights from these writers can enrich U.S. civil rights theory and practice. He also posits a new theory of Latinos' sociolegal construction, based on a triple …

Special Project: Current Issues In Immigration, Anna Byrne

Vanderbilt Law Review

These words, so famously engraved upon a plaque inside the Statue of Liberty, have become an anachronism in modern American politics. In recent years our society has witnessed a maelstrom arise concerning immigration law and enforcement, with vocal factions spouting angry vitriol about the need to tighten borders and crack down on illegal immigration. Intense debate was sparked 2006 after the House of Representatives passed a restrictive bill that called for a wall to be built along 700 miles of the U.S.-Mexican border, criminalized the aiding or encouraging of illegal immigrants to remain in the country, and imposed new penalties …

The Origins Of Shared Intuitions Of Justice, Owen D. Jones, Paul H. Robinson, Robert Kurzban

Vanderbilt Law Review

The role of justice in assigning criminal liability and punishment has been a matter of long-standing debate. A standard argument against a desert distributive principle-that is, against distributing punishment according to an offender's blameworthiness- has been that such a concept of "desert" is simply too vague and the subject of too much disagreement to operationalize. There may be some truth to these complaints when applied to a philosophical notion of desert, which has been the traditional basis of the desert school.

But more recently, a utilitarian-based theory of desert has urged reliance on an empirical notion of desert, drawn from …

Expedited Injustice: The Problems Regarding The Current Law Of Expedited Removal Of Aggravated Felons, Andrew D. Kennedy

Vanderbilt Law Review

Following the attacks of September 11, 2001, he and his family, like many Americans of the Islamic faith, felt persecuted by their neighbors, despite having had nothing to do with the terrorist attacks on the World Trade Center and the Pentagon.' Mr. Rashid felt intimidated by people following him and calling his home to accuse him of complicity in the September 11 attacks. After weeks of harassment, Mr. Rashid's family contacted the police. Unfortunately for Mr. Rashid, however, he shared a name with a suspected terrorist. Thus, instead of addressing Rashid's concerns, the U.S. government began to suspect him as …

Judging Plaintiffs, Jason M. Solomon

Vanderbilt Law Review

With its powerful account of the normative principles embodied in the structure and practice of the law of torts, corrective justice is considered the leading moral theory of tort law. It has a significant advantage over instrumental and other moral theories in that it is more consistent with what judges say when they analyze tort law concepts. And with criticism of instrumental accounts, like law and economics, on a number of fronts, it is the leading descriptive theory of tort law.

In this Article, I take up a question that has never been answered adequately by corrective-justice or other moral …