Law Commons^™

A Damn Hard Thing To Do, John H. Schlegel

Vanderbilt Law Review

Back in the mid-eighties, I offered a first year, second semester "un-elective" called American Legal Theory and American Legal Education. It scrunched together two history courses I had taught irregularly before. I liked the way the two topics fit together and still do, but with so many recalcitrant law students enrolled in it, the course was an unmitigated disaster. As is always the case with such attempts at offering perspective, amidst the shambles I had acquired at least a few devoted students. At the end of the last class one of them came up to the front to ask a …

The Law School Matrix: Reforming Legal Education In A Culture Of Competition And Conformity, Susan Sturm, Lani Guinier

Vanderbilt Law Review

Law school reform is in the air. Many reformers agree that the prevailing law school model developed in the nineteenth century does not adequately prepare students to become effective twenty-first century lawyers. Langdell's case method, designed around private domestic law, appellate cases, and the Socratic method, increasingly fails to teach students "how to think like a lawyer" in the world students will occupy. The curriculum over-emphasizes adjudication and discounts many of the important global, transactional, and facilitative dimensions of legal practice. Law school has too little to do with what lawyers actually do and develops too little of the institutional, …

Can Law Survive Legal Education?, Ernest J. Weinrib

Vanderbilt Law Review

Legal education exists at the confluence of three activities: the practice of law, the enterprise of understanding that practice, and the study of law's possible understandings within the context of a university. The first of these, the practice of law, consists of the activities consciously governed by law, including, for example, lawyers giving legal advice, citizens contemplating the legality of prospective actions, legislators creating law within the limits of their jurisdiction, and judges determining the rights and duties of litigants. It thus comprehends the entire field of legal institutions, legal doctrine, and legal interaction. The second activity, the enterprise of …

A Theory Of Expressive International Law, Alex Geisinger, Michael A. Stein

Vanderbilt Law Review

What is the "pull of international society" and how does it influence the willingness of States to enter into or comply with international law? Since Grotius first identified the concept that States seek esteem from the broader global community, its parameters have proven illusive. Nonetheless, the notion remains central to discussions of why States comply with international agreements.

Understanding the reputational mechanism that impels State compliance is especially important to human rights treaties. Unlike other regimes, States that ratify and abide by the terms of these instruments receive neither reciprocal nor immediate benefits.

Consequently, the desire for international esteem is …

Special Project+ Privacy, Melody R. Barron

Vanderbilt Law Review

Privacy has long been a matter of particular concern in the minds of Americans. Indeed, privacy concerns were at the crux of the American Revolution. The earliest days of colonial life saw creation of laws protecting the individual against eavesdropping, and the sanctity of one's home. The Bill of Rights also reflects privacy interests. As America grew, technological advances in the dissemination of information caused public demands for protection of privacy rights; I Each year, the Vanderbilt Law Review publishes one issue with notes devoted solely to a topic of current interest. These notes collectively constitute the Special Project.

Toothless Hipaa: Searching For A Private Right Of Action To Remedy Privacy Rule Violations, Joshua D.W. Collins

Vanderbilt Law Review

A Midwestern banker, who also served as a member of his county's health board, cross-referenced a health board's list of patients suffering from various diseases with a list of the bank's customers. He then called due the mortgages of anyone suffering from cancer. In Oregon, computer disks containing the medical records of 365,000 patients were stolen from a car. Along with personal medical information, the records also contained the patients' names, addresses, and Social Security numbers. A Maryland school board member's medical records, revealing that he had been treated for depression, were sent to school officials along with an anonymous …

Rethinking The Substantive Due Process Right To Privacy: Grounding Privacy In The Fourth Amendment, Mary H. Wimberly

Vanderbilt Law Review

Little in the jurisprudence of the Supreme Court has spurred as much controversy as the Court's recognition of a constitutional right to privacy. While implicitly acknowledging that such a right is not listed in the text of the Constitution, in Griswold v. Connecticut the Court found that the right existed in the "penumbras" of the amendments to the Constitution.' According to the Court, the right to privacy was present in "emanations" from the guarantees of the Bill of Rights. This reasoning was notoriously extended to abortion in Roe v. Wade. In order to invalidate state regulation of abortion, the Roe …

Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale

Vanderbilt Law Review

What to read? or watch? or listen to? These are hard questions, not because of any scarcity of expression, but rather because of its abundance. Over 100,000 books are published in the United States each year, thousands of movies and CDs are released, and the amount of textual, musical, and visual works on the internet continues to rise exponentially. Whose work can we trust? And who knows what of it will rank among the best that has been thought and said-or even provide a few moments levity?

Admittedly, a bulging bookshelf or surfeit of films prompts an existential crisis in …

The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns

Vanderbilt Law Review

The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates federalism and separation of powers, concerns rooted in the earliest part of our constitutional history, the arrival of a new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. An analysis of Commerce Clause doctrine reveals that while the Rehnquist Court successfully imposed substantive limits on the scope of this important source of congressional power for the first time in sixty years, that Court was far less successful in developing a coherent …

First Amendment Protection For The Publication Of Private Information, Jared Lenow

Vanderbilt Law Review

Over one hundred years ago, Samuel Warren and Louis Brandeis wrote, "Of the desirability-indeed of the necessity-of some protection [of the right of privacy], there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and decency." This observation rings even more true today than it did when it was made in 1890. In the past hundred years, members of the media have drastically revised the unwritten rules regarding what topics are fair game. While media outlets uniformly declined to publish photographs of Franklin Delano Roosevelt in a wheelchair while he …

Insurers, Illusions Of Judgment & Litigation, Chris Guthrie, Jeffrey J. Rachlinski

Vanderbilt Law Review

Insurers play a critical role in the civil justice system. By providing liability insurance to parties who would otherwise be untenable as defendants, insurers make litigation possible. Once litigation materializes, insurers provide representation, pay legal fees, and often play a central role in resolving disputes through settlement or adjudication. In this paper, we explore empirically how these key litigation players make important decisions in the litigation process, like evaluating a case, deciding whether to settle, and if so, on what terms. We find that insurers, though not entirely immune to the effects of cognitive illusions that have been shown to …

Ex Ante Choices Of Law And Forum: An Empirical Analysis Of Corporate Merger Agreements, Theodore Eisenberg, Geoffrey Miller

Vanderbilt Law Review

A leading question in American corporate law is why such a large percentage of large firms choose Delaware as their state of incorporation. An early view saw Delaware as leading a "race to the bottom" by providing charter terms that favored corporate managers at the expense of shareholders and the public at large. Later theorists postulated that Delaware might rather be providing terms that benefited all parties to the corporate contract ex ante-the "race to the top" view. Some have suggested that Delaware incorporation may represent neither a race to the top nor to the bottom, but rather a race …

On The Effective Communication Of The Results Of Empirical Studies, Part Ii, Lee Epstein, Andrew D. Martin, Matthew M. Schneider

Vanderbilt Law Review

In an important and certainly timely article published in the N.Y. U. Law Review, Nancy C. Staudt demonstrates that, in taxpayer standing cases, judges are motivated by politics but can be constrained when the law is clear and oversight exists. As part of that demonstration, Professor Staudt offers an empirical analysis of the decision to grant standing to federal taxpayers-the results of which we reproduce in Table 1.2

What are we to make of this rather ominous-looking table? Professor Staudt suggests two key takeaways. First, the analysis, she reports, shows that doctrine helps explain standing decisions even when political factors …

Juror Questions During Trial: A Window Into Juror Thinking, Shari Seidman Diamond, Mary R. Rose, Beth Murphy, Sven Smith

Vanderbilt Law Review

The jury has undergone a dramatic transformation from its earliest incarnation when jurors acted as witnesses, investigators, and tribunal. In the modern American jury trial, the parties determine what jurors learn during the proceedings. Jurors of today, assigned the role of audience members until deliberations begin, typically speak in the courtroom only during jury selection and through their verdict at the end of the trial. In light of their enforced silence throughout the trial, jurors have no opportunity to clarify or check on their interpretation of the evidence and they provide few external indications about their thinking as the trial …

The Commodification Of Insurance Defense Practice, Herbert M. Kritzer

Vanderbilt Law Review

In this paper, I present an analysis of insurance defense practice using the heuristic of a commodity.7 Essentially, I argue that many, perhaps even most, insurance companies have come to view the more routine work of insurance defense as something to be purchased in a marketplace where there are a large number of interchangeable providers.8 Loyalty between buyer and seller, to the extent that it had been an important element of the relationship, has faded. Today, insurance companies frequently shop for the best deal, which may include producing insurance defense services in-house rather than purchasing those services from an outside …

In Texas, Life Is Cheap, Frank Cross, Charles Silver

Vanderbilt Law Review

What is the life of a Texan worth? Some might suggest very little. Payments in thousands of tort cases in which Texans died provide some evidence for this hypothesis. Although Texas has been a focus of much of the national controversy over the costs of tort litigation, payments in death cases have seen relatively little disciplined research. Existing research often misses the primary effect of the system because it focuses on trial outcomes rather than settlement payments. This Article provides some evidence of the actual payments made in Texas in death cases, their determinants, and the implications of those findings …

The Outer Limits Of Gang Injunctions, Scott E. Atkinson

Vanderbilt Law Review

Almost a decade ago, the California Supreme Court endorsed the use of public nuisance injunctions as a means to control street gangs. Public nuisance injunctions against gangs ("gang injunctions"), which result from civil suits filed by district or city attorneys, prohibit the nuisance conduct within a prescribed geographical area, focusing on the "turf' claimed by the gang. In People ex rel. Gallo v. Acuna, the California Supreme Court upheld an injunction against thirty-eight named members of a San Jose gang in a four square block area where none of the gang members lived. The court described the neighborhood as "an …

Beyond Unconscionability: Class Action Waivers And Mandatory Arbitration Agreements, J. Maria Glover

Vanderbilt Law Review

We live in an age of convenience. From financial transactions to electronic correspondence, we frequently deal with large corporations that provide services in our daily lives. One of the prices we pay for the convenience of these transactions, however, is that our commercial relationships increasingly are based on standard form contracts written by large corporations. While these standard form contracts are necessary to an economically efficient society, the growing use of mandatory arbitration provisions and clauses that prohibit class actions in these contracts raises the spectre of corporate abuse.

This reality of modern commercial life brings into conflict two particular …

Defining Freedom Of The College Press After "Hosty V. Carter", Jessica B. Lyons

Vanderbilt Law Review

The application of the First Amendment to public universities has long been a source of confusion and frustration for both universities and courts. In particular, application of the First Amendment to student publications such as newspapers, magazines, and yearbooks has led to a great deal of litigation and controversy. The protection afforded by the First Amendment to these publications at the university level is extremely unclear and the circuit courts' inconsistent treatment of the college press has further confused the issue.

How should the First Amendment apply to public universities? An instinctive response is that a college student should enjoy …

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia Jr.

Vanderbilt Law Review

In the debate over how federal courts should interpret federal statutes, "faithful agent" theories stand pitted against "dynamic" theories of statutory interpretation. The following questions lie at the heart of the debate: Is the proper role of federal courts to strive to implement the commands of the legislature-in other words, to act as Congress's faithful agents? Or, is the proper role of federal courts to act as partners with Congress in the forward-looking making of federal law-in other words, to interpret statutes dynamically? Proponents of faithful agent theories include both "textualists" and "purposivists." Textualists have argued that federal courts best …

Commandeering And Its Alternatives: A Federalism Perspective, Neil S. Siegel

Vanderbilt Law Review

This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control.

While it is a context-sensitive empirical question whether specific applications of the …

Therapeutic Forgetting: The Legal And Ethical Implications Of Memory Dampening, Adam J. Kolber

Vanderbilt Law Review

Neuroscientists have made significant advances in identifying drugs to dampen the intensity of traumatic memories. Such drugs hold promise for victims of terrorism, military conflict, assault, car accidents, and natural disasters who might otherwise suffer for many years from intense, painful memories. In 2003, the President's Council on Bioethics released a report, entitled Beyond Therapy: Biotechnology and the Pursuit of Happiness, which analyzed memory dampening in some detail. While the Council acknowledged the potential benefits of memory dampening, some Council members were concerned that it may: (1) discourage us from authentically coping with trauma, (2) tamper with personal identity, (3) …

Putting The Caps On Caps: Reconciling The Goal Of Medical Malpractice Reform With The Twin Objectives Of Tort Law, Kyle Miller

Vanderbilt Law Review

Medical malpractice litigation is not a modern invention. Rather, it has been part of the American legal system since before the Revolution,1 and the most recent medical malpractice insurance crisis is not the first this country has known. However, losses to insurers during the earlier medical malpractice insurance crises pale in comparison to the ailments of this most recent crisis.2 Though this most recent medical malpractice insurance crisis seems to be coming to a close,3 by examining the causes of this crisis and enacting changes at present, this country may be able to avoid future crises. Of course, the first …

Realigning The Corporate-Stockholder Relationship: Facilitating Stockholder Communications During Active Proxy Solicitations, Michael Burgoyne

Vanderbilt Law Review

The bankruptcy of the Enron Corporation in December of 2001 "sent shock waves throughout the country" that forced both Wall Street and the average investor to rethink our system of corporate governance. WorldCom, the second-largest long distance carrier in the United States, topped Enron by filing an even larger bankruptcy in 2002 with pre-petition assets estimated at a staggering $103,914,000,000. Although these were two of the largest bankruptcy filings in United States history, Enron and WorldCom were merely the tip of the iceberg. Similar scandals at Adelphia Communications, Arthur Andersen, Global Crossing, HealthSouth, Qwest, Rite Aid, Tyco, and Xerox represent …

Medical Malpractice Standard-Setting: Developing Malpractice "Safe Harbors" As A New Role For Qios?, James F. Blumstein

Vanderbilt Law Review

Concern about medical malpractice issues has reemerged, again stemming from escalating costs in some geographic regions and sectors of medical practice. The Bush Administration has (so far unsuccessfully) supported a cap on noneconomic loss as a strategy for coping with the cost aspects of those medical malpractice concerns, the model being the California approach.

Although the overall initiative for reform has considerable merit, the damage-cap has its opponents and its drawbacks. The damage-cap approach is remedy-centric, focusing on the scope of remedy as a vehicle for containing costs in the area of medical malpractice. By concentrating on remedies, the reform …

Dishonest Medical Mistakes, Maxwell J. Mehlman

Vanderbilt Law Review

In the medical liability wars, physicians like to think that they are the ones in the trenches. Yet the true soldiers, of course, are the patients. As patients seek to avoid the barrage of malpractice reforms and the spoliation of managed care, one of their key refuges-the fiduciary duty of health care professionals-is being assailed from a number of directions. This Article describes these attacks and suggests how best to thwart them.

Imagine that you are seriously ill and go to a doctor. If you are like most patients these days, you are enrolled in some form of managed care. …

"Judicial Hellholes:" Medical Malpractice Claims, Verdicts And The "Doctor Exodus" In Illinois, Neil Vidmar, Russell M. Robinson Ii, Kara Mackillop

Vanderbilt Law Review

Beginning about the year 2000, physicians around the nation experienced an explosive jump in their professional medical liability insurance premiums. The state of Illinois has been identified as one of the "crisis" states by the American Medical Association ("AMA") insofar as cost and availability of liability insurance is concerned. Madison and St. Clair counties, just across the Mississippi River from St. Louis, have garnered particular attention, acquiring the label "judicial hellhole" for medical malpractice claims. The notoriety is so great that President Bush visited Madison County in January 2005 as part of his campaign for a nationwide $250,000 cap on …

What Are We Reforming? Tort Theory's Place In Debates Over Malpractice Reform, John C.P. Goldberg

Vanderbilt Law Review

Those who are reforming medical malpractice law, or studying its reform, ought to attend to tort theory. This is not because theory will settle difficult policy debates. But it does enable reformers and scholars to be more aware of how under-appreciated and possibly dubious assumptions or inferences might be skewing their analyses. In this Essay, I aim to make this point with two examples.

My first example concerns under-litigation-the apparent fact that a substantial percentage of persons with injuries plausibly traceable to malpractice never sue their doctors.' Assume this is a real phenomenon. What are we to make of it? …

Medical Malpractice Litigation And Tort Reform: It's The Incentives, Stupid, David A. Hyman, Charles Silver

Vanderbilt Law Review

Health care providers and tort reformers invariably claim that the medical malpractice litigation system is rife with behaviors that are irrational, unpredictable, and counter-productive. They attack civil juries, asserting that verdicts are skyrocketing without reason, are highly variable, and bear little or no relation to the merits of plaintiffs' claims. They complain about patients, arguing that the few with valid claims sue rarely, while the many who receive non- negligent treatment sue all the time. They attack greedy lawyers, alleging that they rake in obscene profits by routinely filing frivolous complaints. They complain that compensation flows almost randomly, winding up …

Rethinking Peer Review: Detecting And Addressing Medical Malpractice Claims Risk, Ilene N. Moore, James W. Pichert, Gerald B. Hickson, Charles Federspiel, Jennifer U. Blackford

Vanderbilt Law Review

A medical center department chair has just been notified that a physician in his department, "Dr. G," is being sued for the fifth time in seven years. The CEO of co-defendant hospital wants the chair to solve Dr. G's "claims problems." At the chair's request, the hospital peer review committee evaluates Dr. G's malpractice cases. While committee members note some minor concerns in the cases, they conclude that in each circumstance he has met the standard of care. They cannot identify any specific technical or educational need, nor can they supply justification for a disciplinary action. The chair is in …