Law Commons^™

Exceptional Engagement: Protocol I And A World United Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

This article challenges the prevailing view that U.S. "exceptionalism" provides the strongest narrative for the U.S. rejection of Additional Protocol I to the 1949 Geneva Conventions. The United States chose not to adopt the Protocol in the face of intensive international criticism because of its policy conclusions that the text contained overly expansive provisions resulting from politicized pressure to accord protection to terrorists who elected to conduct hostile military operations outside the established legal framework. The United States concluded that the commingling of the regime criminalizing terrorist acts with the jus in bello rules of humanitarian law would be untenable …

Emotional Common Sense As Constitutional Law, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In Gonzales v. Carhart the Supreme Court invoked post-abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about the emotions. A species of common sense, it seems obvious and universal to …

The Tangled Web Of Ugc: Making Copyright Sense Of User-Generated Content, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Even as a mere conceptual cloud, the term "user-generated content" is useful to discuss the societal shifts in content creation brought about by the participative web and perhaps best epitomized by the remix phenomenon. This Article considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation-the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work …

Do Differences In Pleading Standards Cause Forum Shopping In Securities Class Actions?: Doctrinal And Empirical Analyses, Randall Thomas, James D. Cox, Lynn Bai

Vanderbilt Law School Faculty Publications

Federal appellate courts have promulgated divergent legal standards for pleading fraud in securities fraud class actions after the Private Securities Litigation Reform Act (PSLRA). Recently, the U.S. Supreme Court issued a decision in Tellabs v. Makor Issues & Rights that could have resolved these differences, but did not do so. This article provides two significant contributions. We first show that Tellabs avoids deciding the hard issues that confront courts and litigants daily in the wake of the PSLRA's heightened pleading standard. As a consequence, the opinion keeps very much alive the circuits' disparate interpretations of the PSLRA's fraud pleading standard. …

Prediction Markets And Law: A Skeptical Account, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

Enthusiasm for "many minds" arguments has infected legal academia. Scholars now champion the virtues of groupthink, something once thought to have only vices. It turns out that groups often outperform individuals in aggregating information, weighing alternatives, and making decisions. And although some of our legal institutions, such as Congress and juries, already harness the power of the crowd, others could be improved by multiplying the number of minds at work. "Multiplying" implies a simple mathematical formula for improving decisionmaking; modern many minds arguments are more sophisticated than that. They use incentive analyses, game theory, and statistics to study how and …

Law, Statistics, And The Reference Class Problem, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Statistical data are powerful, if not crucial, pieces of evidence in the courtroom. Whether one is trying to demonstrate the rarity of a DNA profile, estimate the value of damaged property, or determine the likelihood that a criminal defendant will recidivate, statistics often have an important role to play. Statistics, however, raise a number of serious challenges for the legal system, including concerns that they are difficult to understand, are given too much deference from juries, or are easily manipulated by the parties' experts. In this preview piece, I address one of these challenges, known as the "reference class problem," …

Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false because Congress is unlikely to think about the delegation of interpretive authority at all, or in the way that the Court imagines. They also contend that the fiction is fraudulent because the Court does actually care about whether Congress intends to delegate interpretive authority in any particular instance, but applies a presumption triggered by statutory ambiguity or a particularized analysis involving factors unrelated to congressional delegation. In …

The Regulation Of Sovereign Wealth Funds: The Virtues Of Going Slow, Amanda Rose, Richard A. Epstein

Vanderbilt Law School Faculty Publications

Any symposium on private-equity firms and the going private phenomenon would be incomplete without discussion of Sovereign Wealth Funds (SWFs). These government owned investment vehicles have and will continue to play an important role in the going private phenomenon. SWFs have not only helped fuel that phenomenon through their participation as limited partners in private-equity funds and hedge funds, but their massive capital infusions into ailing financial institutions and private-equity firms in the wake of the subprime mortgage crisis may, in a very real sense, save it. It is not hyperbolic to suggest that the future of private equity - …

Common Challenges Facing Shareholder Suits In Europe And The United States, Randall Thomas, James D. Cox

Vanderbilt Law School Faculty Publications

Episodic and even sometimes systematic misbehavior by businessmen and corporate entities is ubiquitous. While Enron and WorldCom were the battle cries for corporate reform in the U.S. so it was with Ahold and Parmalat across Europe. No country is free of concern that company officers will misbehave thereby injuring investors, consumers and destroying shareholder value. Thus, this symposium issue collects the recent experiences across Europe in strengthening shareholder suits. Most recent legislative efforts in Europe, and hence the comments in the symposium, are focused on the derivative suit. Just as the American experience with class actions, reviewed separately in this …

Mapping The American Shareholder Litigation Experience, Randall Thomas, James D. Cox

Vanderbilt Law School Faculty Publications

In this paper, we provide an overview of the most significant empirical research that has been conducted in recent years on the public and private enforcement of the federal securities laws. The existing studies of the U.S. enforcement system provide a rich tapestry for assessing the value of enforcement, both private and public, as well as market penalties for fraudulent financial reporting practices. The relevance of the U.S. experience is made broader by the introduction through the PSLRA in late 1995 of new procedures for the conduct of private suits and the numerous efforts to evaluate the effects of those …

A Defense Of The Integrationist Test As A Replacement For The Special Defense Of Insanity, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article, written for a symposium on "Criminal Law and the Excuses," defends the "Integrationist" approach to analysis of the exculpatory effect of mental disability that I developed in Chapter Two of my book, Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty. The book argues that the special nature of the insanity defense should be reconsidered now that modern criminal law, in particular the Model Penal Code, has subjectivized affirmative defenses such as self-defense and duress for people who are not mentally ill. More specifically, the claim is that these latter defenses capture the universe …

Serendipity, Sean B. Seymore

Vanderbilt Law School Faculty Publications

Serendipity, the process of finding something of value initially unsought, has played a prominent role in modern science and technology. These "happy accidents" have spawned new fields of science, broken intellectual and technological barriers, and furnished countless products that have altered the course of human history. In the realm of patent law, one curious aspect of accidental discoveries that has received little attention in the academic literature and the courts is how they mesh with the substantive law of invention. This Essay shows that applying conventional doctrines to accidental inventions is theoretically untenable and, in certain circumstances, may result in …

The Chameleon Court: The Changing Face Of The Icc, Michael A. Newton

Vanderbilt Law School Faculty Publications

An International Criminal Court (ICC) that routinely overrides the good faith reasoning of domestic officials would inevitably face a crisis of confidence and cooperation. The practice of complementarity may well be the fulcrum supporting the Court's long-term legitimacy; and this principle is all the more important because it is designed to provide intellectual leverage to move non-States Parties towards treaty accession. The early practice of the ICC, however, indicates that the model of a healthy and cooperative synergy between the Court and domestic states is in danger of being replaced by a model of competition. The plain text of art …

The False Promise Of Adolescent Brain Science In Juvenile Justice, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Recent scientific findings about the developing teen brain have both captured public attention and begun to percolate through legal theory and practice. Indeed, many believe that developmental neuroscience contributed to the U.S. Supreme Court’s elimination of the juvenile death penalty in Roper v. Simmons. Post-Roper, scholars assert that the developmentally normal attributes of the teen brain counsel differential treatment of young offenders, and advocates increasingly make such arguments before the courts. The success of any theory, though, depends in large part on implementation, and challenges that emerge through implementation illuminate problematic aspects of the theory. This Article tests the legal …

Course Correction: My Term At Afghanistan's Graduate School Of War, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Camp Julien is surrounded by reminders of Afghanistan's past. The coalition military base which sits in the hills south of Kabul, just high enough to rise above the thick cloud of smog that perpetually blankets the city, is flanked by two European-style palaces built in the 1920s by the modernizing King Amanullah. Home to Soviet troops and mujahedin during the past decades of war, the now-crumbling palaces are littered with bullet holes and decorated with graffiti in multiple languages. Uphill from Julien is the old Russian officers' club, dating from the Soviet invasion and featuring a recently refilled swimming pool …

Counterinsurgency, The War On Terror, And The Laws Of War, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Since the wars in Afghanistan and Iraq, military strategists, historians, soldiers, and policymakers have made counterinsurgency's principles and paradoxes second nature, and they now expect that counterinsurgency operations will be the likely wars of the future. Yet despite counterinsurgency's ubiquity in military and policy circles, legal scholars have almost completely ignored it. This Article evaluates the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected …

The Use And Abuse Of Foreign Law In Constitutional Interpretation, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

This article provides an exhaustive typology of the uses of foreign law in order to provide insight into whether foreign law can be appropriately used in constitutional interpretation, when it can be used, and what the stakes and parameters are in each case. In doing so, the article addresses two significant problems in the debate on foreign law. First, much of the commentary has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. But the focus on the why of foreign law has obscured the more basic question about the ways …

A Derivatives Market In Legal Academia, Paul H. Edelman

Vanderbilt Law School Faculty Publications

Building on the success of derivatives markets in the financial arena, I show how similar markets can be used to hedge risk in legal academia. Prudent use of these markets will generate cash, mitigate errors in hiring, and increase the academic prestige of law schools. In short, they can do for legal academia what they have already done to the financial world.

Brain Imaging For Legal Thinkers: A Guide For The Perplexed, Owen D. Jones, Joshua W. Buckholtz, Jeffrey D. Schall, Rene Marois

Vanderbilt Law School Faculty Publications

It has become increasingly common for brain images to be proffered as evidence in criminal and civil litigation. This Article - the collaborative product of scholars in law and neuroscience - provides three things.

First, it provides the first introduction, specifically for legal thinkers, to brain imaging. It describes in accessible ways the new techniques and methods that the legal system increasingly encounters.

Second, it provides a tutorial on how to read and understand a brain-imaging study. It does this by providing an annotated walk-through of the recently-published work (by three of the authors - Buckholtz, Jones, and Marois) that …

Unlearning Fear Of Out-Group Others, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In this brief Comment, Maroney offers a perspective based in the scientific study of fear and social-group judgment. She discusses research showing that humans display heightened, persistent fear responses to "outgroup" faces, and suggests ways in which such research might inform our assessment of intergroup conflict resolution. Comment responsive to Douglas H. Yarn & Gregory Todd Jones, A Biological Approach to Understanding Resistance to Apology, Forgiveness, and Reconciliation in Group Conflict, 72 Law & Contemp. Probs. 63 (2009).

Juvenile Justice: The Fourth Option, Christopher Slobogin, Mark R. Fondacaro

Vanderbilt Law School Faculty Publications

The current eclectic mix of solutions to the juvenile-crime problem is insufficiently conceptualized and too beholden to myths about youth, the crimes they commit, and effective means of responding to their problems. The dominant punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies current knowledge about the causes of juvenile crime and the means of reducing it. But the rehabilitative vision that motivated the progenitors of the juvenile court errs in the other direction, by allowing the state to assert its police power even over those who are innocent of crime. The most …

Keeping The Endangered Species Act Relevant, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The Endangered Species Act (ESA) has long been the workhorse of species protection in contexts for which a species-specific approach can effectively be employed to address discrete human-induced threats that have straightforward causal connections to the decline of a species, such as clearing of occupied habitat for development or damming of a river. Its resounding success there, however, has led to the misperception that it can duplicate that record anywhere and for any reason a species is at risk. Yet, is the statute adaptable to the sprawling, sometimes global, phenomena that are wearing down our environmental fabric on landscape scales …

Soft Law As Delegation, Timothy Meyer

Vanderbilt Law School Faculty Publications

This article examines one of the most important trends in international legal governance since the end of the Second World War: the rise of "soft law," or legally non-binding instruments. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as credible as possible, to ensure optimal incentives to perform. It is therefore odd that …

Ten Fingers, Ten Toes: Newborn Screening For Untreatable Disorders, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

This movie makes two important points despite its admitted unreality. The first, which the screen writer probably did not fully appreciate at the time, is that genetic testing cannot now and probably will never be able to predict with complete certainty the occurrence and course of complex diseases. It is not true that "Genes-R-Us." Rather, we are the products of complex interactions of our genes, the genomes of other organisms (many of which we live in relation with), and the environment, broadly understood to include the air we breathe, the water we drink, the food we eat, the drugs we …

Justice Ginsburg's Gradualism In Criminal Procedure, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article, written for a symposium analyzing Justice Ginsburg’s jurisprudence on the 15th anniversary of her tenure on the Supreme Court, is the first sustained look at her views on criminal procedure issues (search and seizure, interrogation, the right to counsel, trial rights, sentencing procedures, and the criminal appeals and collateral review processes). Not surprisingly, given her ACLU background, she tends to vote in favor of criminal defendants’ positions more often than most other justices, and she is the most likely to do so since Chief Justice Roberts joined the Court. At the same time, the gradualist tendencies that she …

The End Of Objector Blackmail?, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Courts and commentators have long been concerned with holdout problems in the law. This Article focuses on a holdout problem in class action litigation known as objector “blackmail.” Objector blackmail occurs when individual class members delay the final resolution of class action settlements by filing meritless appeals in the hope of inducing class counsel to pay them a side settlement to drop their appeals. It is thought that class counsel pay these side settlements because they cannot receive their fee awards until all appeals from the settlement are resolved. Although several solutions to the blackmail problem have been proposed, both …

Chevron's Mistake, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

"Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc." asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation-whether intentionalism, purposivism, or textualism-and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as …

Does Private Equity Create Wealth? The Effects Of Private Equity And Derivatives On Corporate Governance, Randall Thomas, Ronald W. Masulis

Vanderbilt Law School Faculty Publications

Private equity has reaped large rewards in recent years. We claim that one major reason for this success is due to the corporate governance advantages of private equity over the public corporation. We argue that the development of substantial derivative contracts and trading has significantly weakened the governance of public corporations and has created a need for financially sophisticated directors and much closer supervision of management. The private equity model delivers these benefits and allows corporations to be better governed, creating wealth gains for investors.

Transnationalizing Public Law, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

I am tasked today with talking about transnationalization, in particular the question of whether public law in the United States is undergoing some process of transnationalization today. My response, based on the work of the U.S. Supreme Court is yes, although probably only in a thin sense. The starting point for discussing this issue is generally the Supreme Court's citation to the laws of other countries in Printz v. United States, Roper v. Simmons, and Lawrence v. Texas. But these examples of comparative public law are controversial, substantively weak in the case of Printz, and relatively case (or issue) specific. …

Micro-Offsets And Macro-Transformation: An Inconvenient View Of Climate Change Justice, Michael P. Vandenbergh, Brooke A. Ackerly, Fred E. Forster

Vanderbilt Law School Faculty Publications

We have been asked to examine climate change justice by discussing the methods of allocating the costs of addressing climate change among nations. Our analysis suggests that climate and justice goals cannot be achieved by better allocating the emissions reduction burdens of current carbon mitigation proposals — there may be no allocation of burdens using current approaches that achieves both climate and justice goals. Instead, achieving just the climate goal without exacerbating justice concerns, much less improving global justice, will require focusing on increasing well-being and inducing fundamental changes in development patterns to generate greater levels of well-being with reduced …