Law Commons^™

Should Labor Be Allowed To Submit Shareholder Proposals?, Randall Thomas, Kenneth J. Martin

Vanderbilt Law School Faculty Publications

In this Article, we investigate whether labor unions and related entities should be permitted to continue to make shareholder proposals using Rule 14a-8 of the federal securities laws. We focus on the claim that labor is using the shareholder proposal mechanism to further the interests of workers at the expense of other shareholders. In particular, corporate management groups have suggested that when labor is involved in collective bargaining negotiations with management, it should be barred from submitting shareholder proposals because labor proposals seek to further interests not shared by other security holders of the company. Using data on shareholder proposals …

Textualism And Judgment, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Textualism, like other foundationalist theories such as originalism, purports to be a grand theory of constitutional interpretation, answering all questions with the same single-minded and narrowly constrained technique. The inevitable result is a diminution of what one might call judgment. Judgment is what judges use to decide cases when the answer is not tightly constrained by some interpretive theory. It is an aspect of what others have called prudence, or pragmatism.' But if one has a theory of constitutional interpretation that is supposed to produce clear answers in a relatively mechanical way, there is little room for the exercise of …

Smoke And Mirrors: Understanding The New Scheme For Cigarette Regulation, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Not all the provisions in the proposed legislation favor the states. Others, pertaining primarily to civil liability, are favor able to the financial health of the cigarette industry.

Most important, the legislation would end all present and future actions by state attorneys general. Cigarette companies would escape the potential liability they could face because of an unfavorable ruling about which costs count or because of an unpredictable jury.

The settlement would also preclude all future "addiction" or dependence claims, all class actions, and all claims for punitive damages. Individuals, however, could still sue for past conduct, so that in the …

A Contractarian Defense Of Corporate Philanthropy, Margaret M. Blair

Vanderbilt Law School Faculty Publications

Statutory and case law make it clear that corporate officers and directors have very wide discretion to direct reasonable amounts of corporate resources toward artistic, educational, and humanitarian causes, even if those causes have only a remote connection (or no obvious connection at all) to the business goals and profitability of the firm. This stance of the law has been defended primarily by reference to an "entity" theory of the firm. By contrast, contractarian legal scholars, who view the corporation in terms of a principal-agent model, with shareholders as principles, and officers and directors as their agents, have argued that …

Private Religious Choice In German And American Constitutional Law: Government Funding And Government Religious Speech, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The sharply contested religion cases from Germany in the late 1990s...point to problems with our growing reliance on private religious choice analysis that demand our attention in both government funding and speech cases. To understand the problems of funding religious groups in neutral programs, we must back up and ask the foundational question: what goals may the government pursue with its funding? The broader those goals are defined, the greater the potential distortion of private religious choice, through either inclusion or exclusion from the programs. To fully make sense of government funding and the Establishment Clause, we must consider its …

The Social Costs Of Punitive Damages Against Corporations In Environmental And Safety Torts, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Legal scholars and judges have long expressed concerns over the unpredictability and arbitrariness of punitive damages awards. Proposed remedies, such as restricting punitive damages to narrowly defined circumstances, have not yet met with success. This paper addresses the threshold issue of whether, on balance, punitive damages have benefits in excess of their costs. There is no evidence of a significant deterrent effect based on an original empirical analysis of a wide range of risk measures for the states with and without punitive damages. These measures included accident rates, chemical spills, medical malpractice injuries, insurance performance, and other outcomes that should …

Independent Judges And Independent Justice, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Professor Currie's article [See David P. Currie, "Separating Judicial Power", 61 LAW & CONTEMPORARY PROBLEMS 7 (Summer 1998) ] discusses historical attempts to limit judicial independence. I consider the converse: how judges have exercised their independence. This essay provides a brief historical overview of judges using their independence to implement their own view of justice, often contrary to both popular sentiment and legislative will.

Judicial Independence: Playing Politics With The Constitution, Suzanna Sherry

Vanderbilt Law School Faculty Publications

I begin with a question: why have a conference on judicial independence? To find the answer, one need only read the newspapers. Judicial independence-as well as its political counterpart, judicial impeachment-is a hot topic these days because some in Congress have threatened to impeach judges for delivering unpopular decisions. So I take as my subject in this Essay the question of whether the constitutional provisions safeguarding judicial independence protect judges against impeachment for issuing rulings that Congress considers erroneous or even loathsome. When we talk about judicial independence, we have to separate two questions. The first question is the extent …

Justice O'Connor's Dilemma: The Baseline Question, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Many commentators view City of Boerne v. Flores,' in which a divided Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), as a major defeat in the battle for religious freedom in the United States.' Be that as it may, Flores is also an opportunity to begin a discussion on another issue entirely: the appropriate relationship between dissenting Justices and majority opinions. Should a Justice who disagrees with a majority of the Court nevertheless accept the majority's holding as defining the law for purposes of establishing a baseline for subsequent questions? In order to understand the question …

Taming The Suburban Amoeba In The Ecosystem Age: Some Do's And Don'ts, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Urban central cities present a host of environmental problems including, but not limited to, industrial pollution, brownfields, smog, and environmental injustice. Rural and agricultural areas also experience environmental degradations such as pesticide runoff, wetlands conversion, and overgrazing. Between these different bands of lifestyle and land use lie the suburbs, which present their own set of environmental policy issues. This Article focuses on one of those problems: the growth of suburban land area and what it means for emerging notions of ecosystem management and sustainable development at the local land use scale. Part I of the Article provides the demographic and …

The Irony Of Deregulatory Takings, Jim Rossi

Vanderbilt Law School Faculty Publications

This is a critical review essay, exploring the thesis advanced by Gregory Sidak and Daniel Spulber in their book Deregulatory Takings and the Regulatory Contract (Cambridge University Press 1997). Sidak and Spulber argue that deregulation of the electric utility and local telephony industries can constitute an unconstitutional taking to the extent the state does not provide compensation for the investment-backed expectations of firms in the industry. In addition, they argue that economic efficiency requires this result. This review takes Sidak and Spulber to task for their reading of the case law. In addition, the review criticizes their argument for giving …

Redistribution Through Discriminatory Taxes: A Contractarian Explanation Of The Role Of The Courts, Erin O'Connor

Vanderbilt Law School Faculty Publications

What role should courts serve regarding wealth redistribution through tax provisions? Perhaps they should base decisions on efficiency grounds, protecting society from the transactions costs and other wealth reductions associated with rent seeking. Perhaps they should protect those chosen to bear the burden of discriminatory treatment regardless of social costs, out of fairness concerns for equal treatment. At a minimum, however, the courts should prohibit taxes that would be unanimously condemned ex ante. In this Article, we show, primarily with cases treating progressive taxation, discriminatory property taxes, and taxes on businesses, that the courts have chosen only this third minimalist …

Compensating Differentials For Gender-Specific Job Injury Risks, Joni Hersch

Vanderbilt Law School Faculty Publications

Women have largely been excluded from analyses of compensating differentials for job risk since they are predominantly employed in safer, white-collar occupations. New data reveal that their injury experience is considerable. One-third of the total injury and illness cases with days away from work accrue to female workers. Adjusted for employment, women are 71 percent as likely as men to experience an injury or illness. As one would predict on theoretical grounds, these risks generate compensating differentials. Based on gender-specific injury incidence rates for both industry and occupation, I find strong evidence of compensating wage differentials for the job risk …

"Batson" For The Bench? Regulating The Peremptory Challenge Of Judges, Nancy J. King

Vanderbilt Law School Faculty Publications

The choice of whether to adopt or preserve judicial peremptories should not turn on the resolution of one issue. The risk that such challenges will be used to discriminate between judges on the basis of race must be considered along with the other disadvantages of the challenge and weighed against its potential benefits. Nevertheless, if there is one lesson to be learned from the last few decades of scrutiny of the criminal justice system, it is that discretion can and will be used to discriminate. This difficulty weighs heavily against injecting into our justice system additional discretionary opportunities for litigants …

Exploring The Mysteries: Can We Ever Know Anything About Race And Tax?, Beverly I. Moran

Vanderbilt Law School Faculty Publications

The politics behind tax legislation are explored in order to demonstrate that, rather than being surprising or unexpected, it is easily predictable that federal tax laws would favor whites over blacks.

Uptown Act: A History Of The Uniform Commercial Code: 1940-49, Allen R. Kamp

SMU Law Review

No abstract provided.

The Manipulation Of Legal Remedies To Deter Suits By Survivors Of Childhood Sexual Abuse, Cynthia Grant Bowman

Cornell Law Faculty Publications

No abstract provided.

Freeing Prisoners' Labor, Stephen P. Garvey

Cornell Law Faculty Publications

Although labor was central to the internal life of the early penitentiary, it has virtually vanished from today's prison. In this article, Professor Garvey proposes making labor once again a key part of the prison regime. During the decades surrounding the turn of the century, organized labor and business successfully lobbied for protectionist state and federal legislation that prohibited private firms from contracting for prison labor and selling prison-made goods on the open market. This legislation abolished the old "contract" system of prison labor and replaced it with the "state-use" system. Under the state-use system, inmates work only for the …

Property As Propriety, Gregory S. Alexander

Cornell Law Faculty Publications

Equal Educational Opportunity, Hollow Victories, And The Demise Of School Finance Equity Theory: An Empirical Perspective And Alternative Explanation, Michael Heise

Cornell Law Faculty Publications

Professor Heise reports findings from his on-going empirical study of judicial impact in the school finance context. The study employs interrupted time series analyses to explore the independent effect of successful school finance equity court decisions on two key outcome variables, centralization and total educational spending levels. The results cast some doubt about long-held assumptions regarding the efficacy of court decisions. The author argues that the results also uncover important clues that help explain the recent fundamental shift in school finance litigation theory from equity to adequacy.

"Lit. Theory" Put To The Test: A Comparative Literary Analysis Of American Judicial Tests And French Judicial Discourse, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

The formalism/policy dichotomy has structured American jurisprudential analyses of judicial decisionmaking for most of the twentieth century. In this Article, Professor Lasser analyzes and compares American multi-part judicial tests and French civil judicial discourse to demonstrate that the dichotomy reflects and informs the ways in which judicial decisions are written. Drawing on the works of Roman Jakobson, Roland Barthes, and Paul de Man, he constructs a literary methodology to analyze American and French judicial discourse. Professor Lasser contends that the formalism/policy dichotomy is part of a larger process by which the American and French judicial systems justify how they produce …

Review Essay / Criminal Procedure As Constitutional Law, Gerard V. Bradley

Journal Articles

Book review and essay of The Constitution and Criminal Procedure: First Principles by Akhil Reed Amar.

Fair Use And Privatization In Copyright, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

This Article argues for a broad conception of copyright's fair use doctrine. Economic reliance on property rules has led some to argue that fair use should be limited to cases where market failures do not permit licensing transactions. Otherwise, allocation of rights should be left to the market. This article takes the position that differences between real property and intellectual property undercut the application of the tragedy of the commons to the fair use setting. While real property is a limited resource, intellectual property is not. The same parcel of land may not support an unlimited number of grazing sheep. …

Recommendations For An Environmentally Sound Federal Policy On Western Water, Reed D. Benson

Faculty Scholarship

The organizations and individuals who have produced this report have worked for years to promote environmentally sound federal policy and action with respect to water in the American West. The Western Water Policy Review Advisory Commission's (the "Commission") evaluation of these issues presents an excellent opportunity to address long-standing concerns. We believe the Commission can help advance federal policy to promote sustainable use, management and protection of western waters. We begin with a brief look at current water problems in the West from our perspective. We then identify four general priorities for the federal government: taking steps toward restoring more …

Strengthening What Remains, Christine Zuni Cruz

Faculty Scholarship

This paper is intended to encourage discussion and stimulate action and thought as well as to support the ongoing work in tribal courts in this area. We are involved in an ongoing process of developing an indigenous body of law and system of justice. We must pay particular attention to how we are going about the development of our court systems and look closely at what is developing. Incorporating customary law, whether wholly or partially, into our developing legal systems makes them truly unique to our individual tribes and reflective of the concepts we, as Indian people, have of law …

The Legal Profession And Its Future: Recapturing The Ideal Of The Statesman-Lawyer, Timothy J. Sullivan

Faculty Publications

No abstract provided.

The Use Of Criminal Statutes To Regulate Financial Markets In The United States, Paul Marcus

Faculty Publications

No abstract provided.

Judicial Exclusivity And Political Instability, Neal Devins, Louis Fisher

Faculty Publications

No abstract provided.

Toward A Practical Estate-Tax Exclusion For Family-Run Businesses: Analysis Of Section 2033a And Proposal For Reform, Eric D. Chason, Robert T. Danforth

Faculty Publications

In a previous work appearing in this Journal, the authors proposed an approach to estate and gift taxation that encourages productive behavior by the recipients of wealth. In this Article, the authors analyze, in the context of their earlier work, the new estate-tax exclusion for closely held businesses (section 2033A) created by the Taxpayer Relief Act of 1997. The authors describe the features of a practical family-run business exclusion and conclude that section 2033A, in its present form, fails as a practical exclusion. The authors catalogue those elements of section 2033A that should be retained and propose reforms of those …

A Review Of Federal Sentencing Treatises And Periodicals, Michael M. O'Hear

Faculty Publications

No abstract provided.