Law Commons^™

All Or Nothing: Explaining The Size Of Supreme Court Majorities, Paul H. Edelman, Suzanna Sherry

Vanderbilt Law School Faculty Publications

In this Article, Professors Edelman and Sherry use a probabilistic model to explore the process of coalition formation on the United States Supreme Court. They identify coalition formation as a Markov process with absorbing states and examine voting patterns from twelve Court Terms. On the basis of their data, they conclude that Justices are reluctant to remain in small minorities. Surprisingly, however, they also find that a three-Justice minority coalition is less likely to suffer defections than a four-Justice minority coalition. This counterintuitive result suggests that while in general it is minority Justices rather than majority Justices who drive the …

Implied Limits On The Legislative Power: The Intellectual Property Clause As An Absolute Constraint On Congress, Suzanna Sherry, Paul J. Heald

Vanderbilt Law School Faculty Publications

Professors Heald and Sherry argue that the language of Article I, Section 8, Clause 8, the Intellectual Property Clause, absolutely constrains Congress's legislative power under certain circumstances. Their analysis begins by looking at other limits on the legislative power that the Court has found in the Bankruptcy Clause, the Eleventh Amendment, the Tenth Amendment, and Article III. Then by examining the history and structure of the Intellectual Property Clause and relevant precedent, they distill four principles of constitutional weight- the Suspect Grant Principle, the Quid Pro Quo Principle, the Authorship Principle, and the Public Domain Principle. These principles inform the …

Risk Equity, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Risk equity serves as the purported rationale for a wide range of inefficient policy practices, such as the concern that hypothetical individual risks not be too great. This paper proposes an alternative risk equity concept in terms of equitable tradeoffs rather than equity in risk levels. Equalizing the cost per life saved across policy contexts will save additional lives and will give fair treatment to risks arising in a variety of domains. Equitable tradeoffs will also benefit minorities who currently are disadvantaged by politically based inefficient policies.

Apres Apprendi, Nancy J. King, Susan R. Klein

Vanderbilt Law School Faculty Publications

The Court in Apprendi v. New Jersey, ___ U.S. ___ (2000), held as a matter of due process that any fact, other than a prior conviction, that increases the penalty for an offense beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. In a longer forthcoming article, we attempt to answer some of the profound questions raised by the case concerning constitutional oversight of legislative authority to define what is a "crime," questions that will ripen over the years as legislatures look for ways around the rule and litigants test these legislative …

The Law Professor As Schizophrenic, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Neal Devins says that we don't put political science into our casebooks and Gerald Rosenberg levels the same charge at our scholarship. And so it has fallen to me to defend the ranks of law professors from these scurrilous accusations. Unfortunately, I can't do it: Rosenberg, at least, is largely right. Rosenberg's delightful little polemic has accurately diagnosed the problem. Law professors as a group are too arrogant, too disdainful of empirical information in favor of grand abstractions, and appallingly willing to write in disciplines of which they are woefully ignorant. There are many exceptions, of course: with or without …

Working Both (Positivist) Ends Toward A New (Pragmatist) Middle In Environmental Law, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This review of Daniel Farber's recent book Eco-pragmatism, in which he argues on behalf of taking more pragmatic approaches to the development of environmental policy, provides both the background necessary for appreciating Farber's union of ecosystem dynamics science and environmental pragmatism philosophy, and the basis for extending the new "eco-pragmatism" approach into natural resources conservation settings. Eco-pragmatism implies the intersection of two components-the eco, being the rich and developing field of ecosystem science and management, and the pragmatism, being the classical American pragmatist philosophy represented today in environmental settings through the emergence of environmental pragmatism philosophy. Unfortunately, Eco-pragmatism provides little …

An End To Insanity: Recasting The Role Of Mental Disability In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article argues that mental illness should no longer be the basis for a special defense of insanity. Instead, mental disorder should be considered in criminal cases only if relevant to other excuse doctrines, such as lack of mens rea, self-defense and duress, as those defenses have been defined under modern subjectively-oriented codes. With the advent of these subjectively defined doctrines (a development which, ironically, took place during the same period that insanity formulations expanded), the insanity defense has outlived its usefulness, normatively and practically. Modern official formulations of the defense are overbroad because, fairly construed, they exculpate the vast …

Foreword: Is Justice Just Us?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This is a review of JUSTICE, LIABILITY AND BLAME, by Paul Robinson and John Darley. The book is a summary of 18 studies which surveyed lay subjects about their attitudes toward various aspects of criminal law doctrine, including the act requirement for attempt, omission liability, accomplice liability, the felony-murder role, and the intoxication and insanity defenses. In virtually every study, the authors found that the subjects disagreed with the Model Penal Code's position, the common law's position, or both. The authors contend that results of surveys such as theirs should play a significant role in designing criminal doctrine, both because …

Electronic Rights Management And Digital Identifier Systems, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The new world of digital information requires a new way of providing access to that information — while keeping the copyright backbone. It might be technically easier to create a digital infrastructure without copyright: Just throw works up on the Internet, and let anyone get to them for any purposes. But such systems have been suggested and roundly rejected by those who create and own works of value. So we need to build an electronic infrastructure that works with copyright and takes advantage of the digital environment. This paper looks at the attempts to build part of that infrastructure — …

Using Warnings To Extend The Boundaries Of Consumer Sovereignty, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

We make decisions every day for which we may not have full information. Not all such decisions lead to negative consequences, however. For example, scientists still know very little about why aspirin has its beneficial effects. However, the lack of our knowledge does not necessarily imply that our decisions are in error or that our freedom to make these decisions should be constrained. Almost invariably, we must make decisions with uncertain implications when we fail to have complete information, whether it be with respect to today's weather forecast or the chemical composition of the foods we eat, but this does …

A Prevention Model Of Juvenile Justice: The Promise Of Kansas V. Hendricks For Children, Christopher Slobogin, Mark R. Fondacaro, Jennifer L. Woolard

Vanderbilt Law School Faculty Publications

The traditional juvenile court, focused on rehabilitation and "childsaving," was premised primarily on a parens patriae notion of State power. " Because of juveniles' immaturity and greater treatability, this theory posited, the State could forego the substantive and procedural requirements associated with the adult system of criminal punishment. As an historical and conceptual matter, however, the parens patriae power justifies intervention only for the good of the subject, not for society as a whole. " From the outset, then, the image of the juvenile delinquency system as a manifestation of the State acting as "parent" was an implausible one. This …

Why Liberals Should Chuck The Exclusionary Rule, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article makes the case against the exclusionary rule from a "liberal" perspective. Moving beyond the inconclusive empirical data on the efficacy of the rule, it uses behavioral and motivational theory to demonstrate why the rule is structurally unable to deter individual police officers from performing most unconstitutional searches and seizures. It also argues, contrary to liberal dogma, that the rule is poor at promoting Fourth Amendment values at the systemic, departmental level. Finally, the article contends that the rule stultifies liberal interpretation of the Fourth Amendment, in large part because of judicial heuristics that grow out of constant exposure …

Sex, Culture, And The Biology Of Rape: Toward Explanation And Prevention, Owen D. Jones

Vanderbilt Law School Faculty Publications

For all that has been written about rape, its multiple causes remain insufficiently understood for law to deter it effectively. This follows, in part, from inadequately interdisciplinary study of rape causation. This Article argues that integrating life science and social science perspectives on sexual aggression can improve law's model of rape behavior, and further our efforts to reduce its incidence.

The Article first explains biobehavioral theories of sexual aggression, and offers a guide to common but avoidable errors in assessing them. It then compares a number of those theories' predictions with existing data and demonstrates how knowledge of the effects …

Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article applies comparative institutional analysis to separation of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like restrictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these separation of powers contexts. Most state courts, unlike their federal counterparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with …

The American Criminal Jury, Nancy J. King

Vanderbilt Law School Faculty Publications

As juries become both less common and more expensive, some have questioned the wisdom of preserving the criminal jury in its present form. The benefits of the jury are difficult to quantify, but jury verdicts continue to earn widespread acceptance by the public and trial by jury remains a cherished right of most Americans. In any event, many basic features of the criminal jury in the United States cannot be modified without either constitutional amendment or radical reinterpretations of the Bill of Rights. Judges and legislators continue to tinker within constitutional confines, some hoping to improve the jury trial by …

Better Settle Than Sorry: The Regret Aversion Theory Of Litigation Behavior, Chris Guthrie

Vanderbilt Law School Faculty Publications

Legal scholars have developed two dominant theories of litigation behavior: the Economic Theory of Suit and Settlement,which is based on expected utility theory, and the Framing Theory of Litigation, which is based on prospect theory. While Professor Guthrie acknowledges the explanatory power of these theories, he argues that they are flawed because they portray litigants solely as calculating creatures. These theories disregard any role emotion might play in litigation decision making. Guthrie proposes a mplementary theory-the Regret Aversion Theory of Litigation Behavior-that views litigants as both calculating and emotional creatures. With roots in economics, cognitive psychology, and social psychology, the …

In Defense Of Author Prominence: A Reply To Crespi And Korobkin, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

We thank Greg Crespil and Russell Korobkin for their provocative responses to our author-prominence ranking of specialized law reviews. Crespi provides a thoughtful critique of the methodology we employ and the results we obtained. Korobkin shares some of Crespi's concerns, but he focuses his critique on the potential implications of our rankings (and rankings more generally). In this reply, we briefly address the more significant criticisms each of them raises.

Treating Kids Right, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The concept of amenability to treatment is, in theory, at the core of juvenile delinquency jurisprudence. From its inception as an entity separate from the adult criminal court, the juvenile court was meant to focus on the rehabilitative potential of children. On this premise, the central inquiry in a juvenile delinquency proceeding should be whether the child found delinquent is amenable to treatment. Disposition should depend upon the rehabilitative potential and needs of the juvenile, and only if no treatment is available in the juvenile system should transfer to adult court be considered. In practice, amenability to treatment may never …

How Do Judges Think About Risk?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

A sample of almost 100 judges exhibited well-known patterns of biases in risk beliefs and reasonable implicit values of life. These biases and personal preferences largely do not affect attitudes toward judicial risk decisions, though there are some exceptions, such as ambiguity aversion, misinterpretation of negligence rules, and retrospective risk assessments in accident cases, which is a form of hindsight bias. Although judges avoided many pitfalls exhibited by jurors and the population at large, they nevertheless exhibited systematic errors, particularly for small probability-large loss events. These findings highlighted the importance of judicial review and the input of expert risk analysts …

A Postmortem On The Cigarette Settlement, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The settlement of the Attorney Generals' suits against the cigarette industry for $206 billion was a landmark outcome. By any standard, the financial stakes were enormous, dwarfing eventhe largest tort liability judgments and punitive damages awards. Moreover, what was especially noteworthy was that the party paying for the costs was the cigarette industry, which to date had been almost unscathed after decades of litigation involving the hazards of smoking... Even more surprising than the enormous amount of the settlement is that any portion is being paid at all to the states. Past research at the national level indicates that cigarettes …

The Co-Evolution Of Sustainable Development And Environmental Justice: Cooperation, Then Competition, Then Conflict, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This article explores sustainable development and environmental justice as potentially conflicting policy goals. Sustainable development includes equity as one of its five dimensions (in addition to environment, economy, time, and space), whereas environmental justice focuses principally on equity. Over time there is likely to be an increasing number of contexts in which sustainability-based policy solutions do not satisfy environmental justice advocates.

Second Generation Law And Economics Of Conflict Of Laws: Baxter's Comparative Impairment And Beyond, Erin O'Connor

Vanderbilt Law School Faculty Publications

In his 1963 article in the Stanford Law Review, "Choice of Law and the Federal System," Professor William F. Baxter criticized the choice-of-law approach of the First Restatement of the Conflict of Laws. According to the Restatement, courts should apply the law of the state where the last act or event deemed necessary to create a cause of action occurred. In contrast, Baxter advocated a comparative-impairment approach, whereby judges were obligated to apply the law of the state whose public policy would suffer the greatest impairment if its law was not applied. The authors contend that although Baxter's approach caries …

An Empirical Evaluation Of Specialized Law Reviews, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

The sudden, rapid, and widespread increase in the number of specialized law reviews has attracted relatively little scholarly attention even though it is the most significant development in legal academic publishing in the second half of the twentieth century. As a consequence, there is a dearth of information about the proliferation, significance, and status of specialized reviews. In this Article, we attempt to fill this information gap by documenting the rise of the specialized review and by providing an empirical ranking of the top 100 specialized reviews.

Adoption In The Progressive Era: Preserving, Creating, And Re-Creating Families, Chris Guthrie, Joanna L. Grossman

Vanderbilt Law School Faculty Publications

The history of adoption law and practice has received scant attention from legal scholars and historians. Most of what little scholarship there is focuses on the history of adoption to the mid-nineteenth century, when the first adoption statutes emerged in the United States. Although the enactment of these statutes has been hailed as "an historic moment in the history of Anglo-American family and society" and "the most far-reaching innovation of nineteenth-century custody law," few scholars have made an effort to document the actual operation of adoption law following the enactment of these landmark statutes. This article does just that. Drawing …

An Empirical Evaluation Of Specialized Law Reviews, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

The sudden, rapid, and widespread increase in the number of specialized law reviews has attracted relatively little scholarly attention even though it is the most significant development in legal academic publishing in the second half of the twentieth century. As a consequence, there is a dearth of information about the proliferation, significance, and status of specialized reviews. In this Article, we attempt to fill this information gap by documenting the rise of the specialized review and by providing an empirical ranking of the top 100 specialized reviews.

Priceless Process: Nonnegotiable Features Of Criminal Litigation, Nancy J. King

Vanderbilt Law School Faculty Publications

In this Article, Professor Nancy King develops an approach for determining when judges should block the efforts of criminal litigants to bypass constitutional and statutory requirements other than those already traded freely in traditional plea bargains. Devices for classifying nonnegotiable requirements, including the concept of "jurisdictional error," have lost their utility. Clearer rules about which deals are enforceable and which are not would increase certainty in bargaining and reduce disparate treatment of similarly situated defendants. King argues that the interests of third parties or the public may justify restrictions on bargains in criminal procedure, and she traces the stubborn persistence …

The Governmental Composition Of The Insurance Costs Of Smoking, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The estimated health risks from smoking have significant external financial consequences for society. Studies at the national level indicate that cigarettes are selffinancing since external costs such as those due to illnesses are offset by cost savings associated with premature death, chiefly pension costs. This paper extends this analysis to all 50 states and considers the costs considered in the state attorneys general suits against the cigarette industry. Cigarettes are always self-financing from the standpoint of costs to each state. The extent of the cost savings is less than at the federal level. However, smokers' higher medical costs are outweighed …

Smoking Status And Public Responses To Ambiguous Scientific Risk Evidence, W. Kip Viscusi, Wesley A. Magat, Joel Hubert

Vanderbilt Law School Faculty Publications

Situations in which individuals receive information seldom involve scientific consensus over the level of the risk. When scientific experts disagree, people may process the information in an unpredictable manner. The original data presented here for environmental risk judgments indicate a tendency to place disproportionate weight on the high risk assessment, irrespective of its source, particularly when the experts disagree. Cigarette smokers differ in their risk information processing from nonsmokers in that they place less weight on the high risk judgment when there is a divergence in expert opinion. Consequently, they are more likely to simply average competing risk assessments.

Judicial Federalism In The Trenches: The Rooker-Feldman Doctrine In Action, Suzanna Sherry

Vanderbilt Law School Faculty Publications

One little-noticed side effect of the litigation explosion in this country is the exponential growth of federal doctrines designed to simplify complex litigation. Many of these doctrines have been created and applied largely by the lower federal courts-those on the front lines of this kind of litigation-with little guidance from the Supreme Court. Indeed, when the Supreme Court does get around to noticing a problem, it often limits the lower courts' practical solutions without offering any alternatives. One little-noticed side effect of the litigation explosion in this country is the exponential growth of federal doctrines designed to simplify complex litigation. …

Team Production In Business Organizations: An Introduction, Margaret M. Blair, Lynn A. Stout

Vanderbilt Law School Faculty Publications

For the past two decades, legal and economic scholarship has tended to assume that the central economic problem addressed by corporation law is getting managers and directors to act as faithful agents for shareholders. There are other important economic problems faced by business firms, however. This article introduces a Symposium that explores one of those alternate economic problems: the problem of "team production". Team production problems can arise whenever three conditions are met: (1) economic production requires the combined inputs of two or more individuals; (2) at least some of these inputs are "team-specific," meaning they have a significantly higher …