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Series

2001

Vanderbilt University Law School

Articles 1 - 30 of 37

Full-Text Articles in Law

Proprioception, Non-Law, And Biolegal History, Owen D. Jones Jan 2001

Proprioception, Non-Law, And Biolegal History, Owen D. Jones

Vanderbilt Law School Faculty Publications

This Article explores several advantages of incorporating into law various insights from behavioral biology about how and why the brain works as it does. In particular, the Article explores the ways in which those insights can help illuminate the deep structure of human legal systems. That effort is termed "biolegal history."

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Director Accountability And The Mediating Role Of The Corporate Board, Margaret M. Blair Jan 2001

Director Accountability And The Mediating Role Of The Corporate Board, Margaret M. Blair

Vanderbilt Law School Faculty Publications

One of the most pressing questions facing both corporate scholars and business people today is how corporate directors can be made accountable. Before addressing this issue, however, it seems important to consider two antecedent questions: To whom should directors be accountable? And for what? Contemporary corporate scholarship often starts from a "shareholder primacy" perspective that holds that directors of public corporations ought to be accountable only to the shareholders, and ought to be accountable only for maximizing the value of the shareholders' shares. This perspective rests on the conventional contractarian assumption that the shareholders are the sole residual claimants and …

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The Challenge Of Punitive Damages Mathematics, W. Kip Viscusi Jan 2001

The Challenge Of Punitive Damages Mathematics, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Proposals to provide juries with specific numerical instructions for setting punitive damages should bring greater rationality to punitive damages awards. This approach is tested using evidence from 353 jury-eligible citizens who applied these formulas to a series of legal cases. Few respondents assessed the correct values of punitive damages from the standpoint of deterrence. Anchoring effects of appeals by a plaintiffs lawyer or media coverage of similar awards lead respondents to abandon the punitive damages formula and set punitive damages based on the anchor. Minorities and the less well educated were particularly unwilling or unable to apply the recommended punitive …

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Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng Jan 2001

Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This Note has examined the consequences of a shift in the equal protection context - a move from a traditional particularized harm perspective to a constitutional risk perspective focused on systemic harms. It has also acknowledged the significant remedial difficulties associated with constitutional risk, but by focusing on discretion as the source of most equal protection risks, this Note has proposed a moderate doctrinal change: discretionary safeguards. To be sure, this Note leaves the project substantially incomplete. Constitutional risk's focus on statistical evidence requires careful discussion of the pitfalls judges face in this area and of how they can develop …

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Litigating Challenges To Executive Pay: An Exercise In Futility?, Randall Thomas, Kenneth J. Martin Jan 2001

Litigating Challenges To Executive Pay: An Exercise In Futility?, Randall Thomas, Kenneth J. Martin

Vanderbilt Law School Faculty Publications

This paper is an empirical analysis of plaintiffs' success rates in executive compensation litigation. Using data from publicly available files, this study examines a sample of 124 cases where shareholders have challenged executive compensation levels and practices at public and closely held corporations. This data set shows that shareholders are successful in at least some stage of this litigation in a significant percentage of these cases. Our most robust result is that plaintiffs win a greater percentage of the time in compensation cases against closely held companies than against publicly held companies. This result is consistent for every stage of …

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An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin Jan 2001

An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article takes a comparative and empirical look at two of the most significant methods of police investigation: searches for and seizures of tangible evidence and interrogation of suspects. It first compares American doctrine regulating these investigative tools with the analogous rules predominant in Europe (specifically, England, France and Germany). It then discusses research on the American system that sheds light on the relative advantages and disadvantages of the two regulatory systems. More often than not, the existing data call into question preconceived notions of what "works." In particular, American reverence for search warrants, the exclusionary rule, and "Miranda" warnings …

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Through The Lens Of The Sequence, Ellen Wright Clayton Jan 2001

Through The Lens Of The Sequence, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

The completion of the rough draft of the human genome is a scientific feat worthy of celebration. But the media attention that has been devoted to the Human Genome Project demonstrates that most people are not as interested in what the sequence is as in what it means for individuals and for society, for good or for ill. My purpose in writing this essay is to discuss how the project was conducted here in the United States, and some of the implications of knowing the sequence (or more aptly, a sequence).

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The Cashless Corporate Tax, Herwig J. Schlunk Jan 2001

The Cashless Corporate Tax, Herwig J. Schlunk

Vanderbilt Law School Faculty Publications

Proposals for reforming the federal corporate income tax are neverending and ever-multiplying. They range from those that merely tinker around the edges, such as most recent proposals attacking the various perceived abuses that masquerade under the moniker "corporate tax shelter," to various integration approaches that arguably would gut the enterprise of a corporate income tax altogether. Since everything and the kitchen sink is at least theoretically in play, it seems appropriate to add this modest proposal, which I call the "cashless corporate tax" (CCT). As described below, the CCT is a "tax" that would replace the current corporate income tax-defined …

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Realities Of Rape: Of Science And Politics, Causes And Meanings, Owen D. Jones Jan 2001

Realities Of Rape: Of Science And Politics, Causes And Meanings, Owen D. Jones

Vanderbilt Law School Faculty Publications

This review essay discusses the book A Natural History of Rape: Biological Bases of Sexual Coercion, by Randy Thornhill and Craig Palmer (MIT Press, 2000). The essay builds on work previously appearing in Owen D. Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827 (1999) and Owen D. Jones, Law and the Biology of Rape: Reflections on Transitions, 11 Hastings Women's Law Journal 151 (2000).

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Evolutionary Analysis In Law: Some Objections Considered, Owen D. Jones Jan 2001

Evolutionary Analysis In Law: Some Objections Considered, Owen D. Jones

Vanderbilt Law School Faculty Publications

This Article appears in a special issue of the Brooklyn Law Review on DNA: Lessons from the Past - Problems for the Future. It first addresses why law needs insights from behavioral biology, and then identifies and responds to a variety of structural and conceptual barriers to such evolutionary analysis in law.

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Time-Shifted Rationality And The Law Of Law's Leverage: Behavioral Economics Meets Behavioral Biology, Owen D. Jones Jan 2001

Time-Shifted Rationality And The Law Of Law's Leverage: Behavioral Economics Meets Behavioral Biology, Owen D. Jones

Vanderbilt Law School Faculty Publications

A flood of recent scholarship explores legal implications of seemingly irrational behaviors by invoking cognitive psychology and notions of bounded rationality. In this article, I argue that advances in behavioral biology have largely overtaken existing notions of bounded rationality, revealing them to be misleadingly imprecise - and rooted in outdated assumptions that are not only demonstrably wrong, but also wrong in ways that have material implications for subsequent legal conclusions. This can be remedied. Specifically, I argue that behavioral biology offers three things of immediate use. First, behavioral biology can lay a foundation for both revising bounded rationality and fashioning …

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The Evolution Of Irrationality, Owen D. Jones Jan 2001

The Evolution Of Irrationality, Owen D. Jones

Vanderbilt Law School Faculty Publications

The place of the rational actor model in the analysis of individual and social behavior relevant to law remains unresolved. In recent years, scholars have sought frameworks to explain: a) disjunctions between seemingly rational behavior and seemingly irrational behavior; b) the origins of and influences on law-relevant preferences, and c) the nonrandom development of norms. This Article explains two components of an evolutionary framework that, building from accessible insights of behavioral biology, can encompass all three. The components are: "time-shifted rationality" and "the law of law's leverage."

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Apples For Oranges, J.B. Ruhl, James Salzman Jan 2001

Apples For Oranges, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

Over the last decade, there has been a sea change in environmental law and policy, marked by growing interest in market-based instruments of environmental protection. In particular, approaches that explicitly commodify environmental impacts by creating markets for their sale are on the rise. These environmental trading markets (ETMs) now operate in a range of regulatory settings where parties exchange credits to emit air pollutants, extract natural resources, and develop habitat. In fact, every major environmental policy review in the last five years has called for even greater use of ETMs. Markets for environmental commodities represent the new wave of environmental …

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Paradoxes Of Fair Division, Paul H. Edelman, Steven J. Brams, Peter C. Fishburn Jan 2001

Paradoxes Of Fair Division, Paul H. Edelman, Steven J. Brams, Peter C. Fishburn

Vanderbilt Law School Faculty Publications

Paradoxes, if they do not define a field, render its problems intriguing and often perplexing, especially insofar as the paradoxes remain unresolved. Voting theory, for example, has been greatly stimulated by the Condorcet paradox, which is the discovery by the Marquis de Condorcet that there may be no alternative that is preferred by a majority to every other alternative, producing so-called cyclical majorities. Its modern extension and generalization is Arrow's theorem, which says, roughly speaking, that a certain set of reasonable conditions for aggregating individuals' preferences into some social choice are inconsistent. In the last fifty years, hundreds of books …

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Integrating Ecosystem Services Into Environmental Law: A Case Study Of Wetlands Mitigation Banking, J.B. Ruhl, Juge R. Gregg Jan 2001

Integrating Ecosystem Services Into Environmental Law: A Case Study Of Wetlands Mitigation Banking, J.B. Ruhl, Juge R. Gregg

Vanderbilt Law School Faculty Publications

This article argues that Section 404 of the Clean Water Act provides ample statutory authority for the Corps of Engineers and EPA to integrate ecosystem service values and impacts into wetlands impact and mitigation decisions.

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Damages To Deter Police Shootings, W. Kip Viscusi, S. Jeffrey Jan 2001

Damages To Deter Police Shootings, W. Kip Viscusi, S. Jeffrey

Vanderbilt Law School Faculty Publications

Many fatal shootings by police are not warranted. These shootings impose losses on the victims and their families and reflect the failure of existing administrative and legal restraints to deter these unwarranted shootings. This Article proposes a revamping of existing incentives to both provide more adequate compensation to the victims' families and to establish levels of deterrence that are sufficient to curtail unjust fatalities. There are legal criteria for what level of force is "reasonable," but determining reasonableness in practice may be difficult. Practical guidance such as the "21-foot rule" for the threat to warrant a shooting is often problematic. …

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Should Shareholders Have A Greater Say Over Executive Pay??, Randall S. Thomas, Brian R. Cheffins Jan 2001

Should Shareholders Have A Greater Say Over Executive Pay??, Randall S. Thomas, Brian R. Cheffins

Vanderbilt Law School Faculty Publications

Executive pay arrangements in Britain's publicly quoted companies have been subjected to much criticism in recent years. Proposals that shareholders should have a greater direct say over managerial remuneration have been a by-product of the concerns expressed. Debate on this point, however, has been largely speculative. This is because there is little evidence available in the United Kingdom indicating how shareholders would exercise any new powers they might be given. This paper addresses the evidentiary gap by drawing upon the experience in the United States, where empirical work indicates that shareholder voting only operates as a potential check when pay …

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Bargaining In The Shadow Of Administrative Procedure: The Public Interest In Rulemaking Settlement, Jim Rossi Jan 2001

Bargaining In The Shadow Of Administrative Procedure: The Public Interest In Rulemaking Settlement, Jim Rossi

Vanderbilt Law School Faculty Publications

This article addresses problems associated with settlement of appeals of legislative rules adopted by administrative agencies. Settlement is a common and important tool for avoiding litigation, but it also raises potential problems for administrative law. In particular, to the extent that an appellate litigation posture poses a principal/agent gap, an agency's incentives to settle may lead it to abandon its public interest goals, otherwise protected by statutory mandates as well as administrative procedures. The problem is most salient when an agency agrees to a substantive policy position in a settlement, committing the agency to later implement a policy course. To …

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Respecting Deference: Conceptualizing Skidmore Within The Architecture Of Chevron, Jim Rossi Jan 2001

Respecting Deference: Conceptualizing Skidmore Within The Architecture Of Chevron, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article addresses critically the implications of the U.S. Supreme Court's recent decision in Christensen v. Harris County, 120 S.Ct. 1655 (2000), for standards of judicial review of agency interpretations of law. Christensen is a notable case in the administrative law area because it purports to clarify application of the deference doctrine first articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944). By reviving this doctrine, the case narrows application of the predominant approach to deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), thus reducing the level of deference in …

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Brain Plasticity And Spanish Moss In Biolegal Analysis, Erin O'Connor Jan 2001

Brain Plasticity And Spanish Moss In Biolegal Analysis, Erin O'Connor

Vanderbilt Law School Faculty Publications

The field of law and biology is growing rapidly, and the good scholarship typically has much to do with Owen Jones... The general message that Professor Jones disseminates in his articles is important. Law cannot reach peak effectiveness unless it is built on a sound behavioral model, and no model of human nature is ultimately sound unless it is consistent with the insights from behavioral biology. And the beauty of behavioral biology, for one who uses behavioral models, is that it tells us something about human tastes, preferences, and cognitive biases and limitations.

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The Most Dangerous Justice Rides Again: Revisiting The Power Pageant Of The Justices, Paul H. Edelman, Jim Chen Jan 2001

The Most Dangerous Justice Rides Again: Revisiting The Power Pageant Of The Justices, Paul H. Edelman, Jim Chen

Vanderbilt Law School Faculty Publications

Who is the most powerful Supreme Court Justice? In 1996 we measured voting power on the Court according to each Justice's ability to form five-member coalitions. From the set of all coalitions formed by the Court during its 1994 and 1995 Terms, we developed a generalized Banzhaf index of the Justices' relative strength. Generally speaking, participating in a greater number of unique coalitions translates into greater judicial voting power. To supplement the small number of decisions then available, we derived hypothetical five-Justice coalitions from the intersections of actually observed coalitions involving more than five members. Professor Lynn Baker contested our …

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Supreme Court Monitoring Of The United States Courts Of Appeals En Banc, Tracey E. George, Michael E. Solimine Jan 2001

Supreme Court Monitoring Of The United States Courts Of Appeals En Banc, Tracey E. George, Michael E. Solimine

Vanderbilt Law School Faculty Publications

This article considers systematically whether the Supreme Court is more likely to review an en banc court of appeals decision than a panel decision. First, we consider Supreme Court review of en banc cases during the Rehnquist Court. Then, in a multivariate empirical analysis of a three-circuit subset of those cases, we control for other variables found to influence the Court's certiorari decision, such as Solicitor General or amicus curiae support for the certiorari petition, a dissent from the court of appeal's opinion, an outcome contrary to the Court's ideological composition, and an intercircuit conflict. The discussion is situated in …

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"Apprendi" And Plea Bargaining, Nancy J. King, Susan Riva Klein Jan 2001

"Apprendi" And Plea Bargaining, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

Before "Apprendi", prosecutors using recidivism as a club could, and did, regularly insist that defendants admit aggravating facts as part of the plea or face additional time. When the prosecutor's threats of added time were not persuasive and the proof of aggravating facts weak, the defendant prior to "Apprendi" could refuse to admit to the aggravating fact, and plead guilty only to the offense without the aggravating fact. Nothing about "Apprendi" gives additional leverage to the prosecutor in this situation. A defendant who, prior to "Apprendi", decided to risk trial rather than face the aggravated sentence will make the same …

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Cigarette Smokers As Job Risk Takers, Joni Hersch, W. Kip Viscusi Jan 2001

Cigarette Smokers As Job Risk Takers, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Using a large data set, the authors find that smokers select riskier jobs, but receive lower total wage compensation for risk than do nonsmokers. This finding is inconsistent with conventional models of compensating differentials. The authors develop a model in which worker risk preferences and job safety performance lead to smokers facing a flatter market offer curve than nonsmokers. The empirical results support the theoretical model. Smokers are injured more often controlling for their job's objective risk and are paid less for these risks of injury. Smokers and nonsmokers, in effect, are segmented labor market groups with different preferences and …

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The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie Jan 2001

The Lawyer's Philosophical Map And The Disputant's Perceptual Map: Impediments To Facilitative Mediation And Lawyering, Chris Guthrie

Vanderbilt Law School Faculty Publications

Riskin's categorization of mediation has engendered much debate among academics and practitioners. Although most in the mediation community accept Riskin's positive assertion that mediation as currently practiced includes both facilitation and evaluation, a vocal group of purist critics rejects Riskin's pluralist view of mediation on normative grounds. These purist critics -- including such prominent mediator-scholars as Professors Kim Kovach, Lela Love," and Josh Stulberg -- argue that mediation is in fact, and should be, solely a facilitative process "designed to capture the parties' insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes." For …

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Homogenized Law: Can The United States Learn From African Mistakes?, Beverly I. Moran Jan 2001

Homogenized Law: Can The United States Learn From African Mistakes?, Beverly I. Moran

Vanderbilt Law School Faculty Publications

For the last fifty years we have seen an outflow of United States laws to developing countries. This legal outflow has caused problems of enforcement in societies that do not share the values, needs or concerns of the law producing state. Using law reform in Eritrea as a case study, the article asks what will happen in the United States when we become the recipient, rather than the exporter, of maladapted laws that serve the purpose of others instead of serving the unique needs of the United States and its economy.

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Essential Elements, Nancy J. King, Susan Riva Klein Jan 2001

Essential Elements, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

The Court has struggled for well over a century with the issue of who has final authority to define what is a "crime" for purposes of applying procedural protections guaranteed by the Constitution in criminal cases. Just as labeling an action "civil" may allow the government to circumvent constitutional criminal procedure entirely, so labeling a fact an "affirmative defense" or a "sentencing factor" instead of an element of the offense may allow the government to escape constitutional criminal procedure selectively, bypassing the burden of proof, pleading, and jury requirements that would otherwise apply to an offense element. In its decision …

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Inside The Judicial Mind, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich Jan 2001

Inside The Judicial Mind, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

The quality of the judicial system depends upon the quality of decisions that judges make. Even the most talented and dedicated judges surely make occasional mistakes, but the public understandably expects judges to avoid systematic errors. This expectation, however, might be unrealistic. Psychologists who study human judgment and choice have learned that people frequently fall prey to cognitive illusions that produce systematic errors in judgment. Even though judges are experienced, well-trained, and highly motivated decision makers, they might be vulnerable to cognitive illusions. We report the results of an empirical study designed to determine whether five common cognitive illusions (anchoring, …

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Court Fixing, Tracey E. George Jan 2001

Court Fixing, Tracey E. George

Vanderbilt Law School Faculty Publications

This Article critically examines the existing social science evidence on the relative importance of various individual factors on judicial behavior and adds to that evidence by considering the influence of prior academic experience on judges. Researchers have not focused much attention on the importance of a judge's background as a full-time law professor and legal scholar, although more than thirteen percent of courts of appeals appointees were former law professors. Franklin Roosevelt and Ronald Reagan both viewed the federal judiciary (particularly the Supreme Court and the Courts of Appeals) as integral to their policy agendas, and both further believed that …

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Accommodation And Equal Liberty, Lisa Schultz Bressman Jan 2001

Accommodation And Equal Liberty, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

How should legislatures respond to requests from religious individuals or institutions for exemptions to generally applicable laws? In Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause does not require legislatures (federal or state) to honor such requests. The question remains whether they should do so on a voluntary basis. This is the problem of permissive accommodation-that is, accommodation of religious liberty as a matter of political discretion rather than constitutional compulsion. Put in the terms of this Symposium, it is the problem of accommodation in the public square. It is not immediately apparent why permissive …

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