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The Roman Public Trust Doctrine--What Was It, And Does It Support An Atmospheric Trust?, J. B. Ruhl, Thomas A.J. Mcginn Nov 2000

The Roman Public Trust Doctrine--What Was It, And Does It Support An Atmospheric Trust?, J. B. Ruhl, Thomas A.J. Mcginn

Vanderbilt Law School Faculty Publications

Through building waves of legal scholarship and litigation, a group of legal academics and practitioners is advancing a theory of the public trust doctrine styled as the "atmospheric trust." The atmospheric trust would require the federal and state governments to regulate public and private actors to reduce greenhouse gas emissions to abate climate change. The traditional common law version of the American public trust doctrine requires that states owning title to lands submerged under navigable waters manage them in trust for the public to use for navigation, fishing, and commerce and that the states not alienate such resources to the …


Corporate Risk Analysis: A Reckless Act?, W. Kip Viscusi Feb 2000

Corporate Risk Analysis: A Reckless Act?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Balancing of risk and cost lies at the heart of standard negligence tests and policy analysis approaches to government regulation. Notwithstanding the desirability of using a benefit-cost approach to assess the merits of safety measures, in many court cases juries appear to penalize corporations for having done a risk analysis in instances in which the company decided not to make a safety improvement after the analysis indicated the improvement was unwarranted Automobile accident cases provide the most prominent examples of such juror sanctions. This paper tests the effect of corporate risk analyses experimentally by using a sample of almost 500 …


On The Nature Of Norms: Biology, Morality, And The Disruption Of Order, Owen D. Jones Jan 2000

On The Nature Of Norms: Biology, Morality, And The Disruption Of Order, Owen D. Jones

Vanderbilt Law School Faculty Publications

This essay discusses the legal implications of bio-behavioral underpinnings to norms, morality, and economic order. It first discusses the recent book "The Great Disruption: Human Nature and the Reconstitution of Social Order," in which Francis Fukuyama explores the importance of evolved human nature to the reconstruction of social order and a thriving economy. It then addresses the extent to which we can usefully view law-relevant norms as products of evolutionary - as well as economic - processes.


Law And The Biology Of Rape: Reflections On Transitions, Owen D. Jones Jan 2000

Law And The Biology Of Rape: Reflections On Transitions, Owen D. Jones

Vanderbilt Law School Faculty Publications

This Article serves is a sequel to a previous Article: Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827 (1999). Part I briefly considers the threshold question: why consider the behavioral biology of sexual aggression at all? Part II proposes that the first step in transitioning to a more accurate and more useful model of rape behavior is to avoid a number of common definitional ambiguities that plague most rape discussions. Because those ambiguities are particularly likely to foster misunderstandings about biobehavioral perspectives, Part II also clarifies the scope of what biobehavioral theories …


Framing Frivolous Litigation: A Psychological Theory, Chris Guthrie Jan 2000

Framing Frivolous Litigation: A Psychological Theory, Chris Guthrie

Vanderbilt Law School Faculty Publications

This Article uses an often-overlooked component of prospect theory to develop a positive theory of frivolous or low-probability litigation. The proposed Frivolous Framing Theory posits that the decision frame in frivolous litigation induces risk-seeking behavior in plaintiffs and risk averse behavior in defendants. Because plaintiffs in frivolous litigation have a greater tolerance for risk than the defendants they have sued, plaintiffs in frivolous litigation have "psychological leverage" in settlement negotiations, which is likely to lead to plaintiff-friendly settlements or bargaining impasse. This in turn, suggests that reformers concerned about frivolous litigation should target reform efforts at plaintiffs' decisionmaking in frivolous …


Doubts About Daubert: Psychiatric Anecdata As A Case Study, Christopher Slobogin Jan 2000

Doubts About Daubert: Psychiatric Anecdata As A Case Study, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In Daubert v. Merrell Dow Pharmaceuticals Inc., the Supreme Court sensibly held that testimony purporting to be scientific is admissible only if it possesses sufficient indicia of scientific validity. In Kumho Tire Co. v. Carmichael, the Court more questionably held that opinion evidence based on "technical" and "specialized" knowledge must meet the same admissibility threshold as scientific testimony. This Article addresses the implications of these two decisions for opinion evidence presented by mental health professionals in criminal trials.


The Value Of Life In Legal Contexts: Survey And Critique, W. Kip Viscusi Jan 2000

The Value Of Life In Legal Contexts: Survey And Critique, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Value of life issues traditionally pertain to insurance of the losses of accident victims, for which replacement of the economic loss is often an appropriate concept. Deterrence measures of the value of life focus on risk-money tradeoffs involving small changes in risk. Using market data for risky jobs and product risk contexts often yields substantial estimates of the value of life in the range of $3 million to $9 million. These estimates are useful in providing guidance for regulatory policy and assessments of liability. However, use of these values to determine compensation, known as hedonic damages, leads to excessive insurance.


Deciphering Courts Of Appeals Decisions Using The U.S. Courts Of Appeals Data Base, Tracey E. George, Reginald S. Sheehan Jan 2000

Deciphering Courts Of Appeals Decisions Using The U.S. Courts Of Appeals Data Base, Tracey E. George, Reginald S. Sheehan

Vanderbilt Law School Faculty Publications

Is one circuit significantly more conservative or liberal than the others? Do circuit courts consistently avoid deciding the substance of certain appeals by concluding that the plaintiffs lack standing? Have state governments been more successful than other parties when they appeal adverse district court rulings? Do appeals courts act in a majoritarian or countermajoritarian manner with regard to elected institutions and the general public? The United States Courts of Appeals Data Base, an extensive data set of courts of appeals decisions, can address these and other questions about the circuit courts. This article describes the background, scope, and content of …


All Or Nothing: Explaining The Size Of Supreme Court Majorities, Paul H. Edelman, Suzanna Sherry Jan 2000

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 …


The Determinants Of Shareholder Voting On Stock Option Plans, Randall S. Thomas, Kenneth J. Martin Jan 2000

The Determinants Of Shareholder Voting On Stock Option Plans, Randall S. Thomas, Kenneth J. Martin

Vanderbilt Law School Faculty Publications

Over the past decade, executive compensation has become a controversial topic. Increasingly, corporate boards of directors are confronted by angry shareholder groups over the size and composition of executive pay packages. One of the most important focal points for these tensions arises when shareholders are asked by the board to approve the creation of new stock option plans, or the amendment of existing plans. This article seeks to identify the factors that lead shareholders to support or oppose stock option plans. We examine the justifications for the widespread use of stock options and identify several benefits from stock option plans …


Universal Service In Competitive Retail Electric Power Markets: Whither The Duty To Serve?, Jim Rossi Jan 2000

Universal Service In Competitive Retail Electric Power Markets: Whither The Duty To Serve?, Jim Rossi

Vanderbilt Law School Faculty Publications

This article addresses whether traditional service obligations can coexist with retail competition. A rationale often given for universal service obligations in the telecommunications industry is that universal service, by promoting interconnectivity, enhances network system benefits for all customers. While the network economies argument may have worked to sustain universal service in the face of telecommunications deregulation, it is tenuous when applied to the natural gas and electricity industries. Many reformers look askance at the duty to serve in competitive retail utility service markets, often pointing to conflict between retail competition in electricity and the duty to serve. This article argues, …


From Politics To Efficiency In Choice Of Law, Erin O'Connor Jan 2000

From Politics To Efficiency In Choice Of Law, Erin O'Connor

Vanderbilt Law School Faculty Publications

This article proposes a comprehensive system for choice of law that is designed to enhance social wealth by focusing on individual rather than governmental interests. To the extent practicable, parties should be able to choose their governing law. In the absence of an explicit agreement, courts should apply rules that facilitate party choice or that select the law the parties likely would have contracted for - that is, the law of the state with the comparative regulatory advantage. The system relies on clear rules that enable the parties to determine, at low cost and ex ante, what law applies to …


The Wisconsin Diploma Privilege: Try It, You'll Like It, Beverly I. Moran Jan 2000

The Wisconsin Diploma Privilege: Try It, You'll Like It, Beverly I. Moran

Vanderbilt Law School Faculty Publications

The big question that the Wisconsin diploma privilege raises is whether waivers into practice upon graduation can work outside the Dairy State. Is Wisconsin simply so unique that its successful experience cannot be replicated elsewhere? My conclusion is that there are certain characteristics that make Wisconsin a good site for the diploma privilege but that those characteristics are shared by several other states. These characteristics include (1) a small state with a relatively small practicing bar; (2) a close relationship between the bar, the judiciary, the legislature, and the law schools within the state; and (3) great regard between the …


Timing Matters: Promoting Forum Shopping By Insolvent Corporations, Randall Thomas, Robert K. Rasmussen Jan 2000

Timing Matters: Promoting Forum Shopping By Insolvent Corporations, Randall Thomas, Robert K. Rasmussen

Vanderbilt Law School Faculty Publications

Most commentators decry forum shopping. This general hostility extends to forum shopping by firms filing for bankruptcy. Indeed, Congress is considering legislation designed to reduce forum shopping by companies filing for bankruptcy. This article makes two contributions to this debate. First, we show that the current debate is driven almost exclusively by attorneys trying to protect fees rather than by any principled objection to forum shopping. Second, on the merits, we argue that the hostility to forum shopping is misplaced. The near universal condemnation of forum shopping rests on the premise that, at the time the plaintiff selects a forum, …


Against Diversity, Suzanna Sherry Jan 2000

Against Diversity, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Congress should repeal 28 U.S.C. § 1332 in its entirety, abolishing diversity jurisdiction altogether.


Schechter Poultry At The Millennium: A Delegation Doctrine For The Administrative State, Lisa Schultz Bressman Jan 2000

Schechter Poultry At The Millennium: A Delegation Doctrine For The Administrative State, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The new delegation doctrine might seem perplexing to both sides of the current delegation debate. Either it is too intrusive on administrative prerogatives or it is not nearly intrusive enough. The new delegation doctrine is difficult to comprehend only because it evinces a different focus. While the debate concentrates primarily on the legitimacy of lawmaking by administrative agencies, the new doctrine speaks more to the goal of promoting the legitimacy of law made by administrative agencies. It might even be fair to say that, in this regard, the new doctrine moves beyond the academic debate. Moreover, the new doctrine neither …


The Criminal Defense Lawyer's Fiduciary Duty To Clients With Mental Disability, Christopher Slobogin, Amy Mashburn Jan 2000

The Criminal Defense Lawyer's Fiduciary Duty To Clients With Mental Disability, Christopher Slobogin, Amy Mashburn

Vanderbilt Law School Faculty Publications

This Article has argued that the defense attorney has a multifaceted fiduciary duty toward the client with mental disability. That duty requires, first and foremost, respect for the autonomy of the client. The lawyer shows that respect not only by heeding the wishes of the competent client but by refusing to heed the wishes of the incompetent client. A coherent approach to the competency construct is therefore important. Following the lead of Professor Bonnie, this Article has broken competency into two components: assistance competency and decisional competency. It has defined the former concept in traditional terms, as an understanding of …


The Zen Of Corporate Capital Structure Neutrality, Herwig J. Schlunk Jan 2000

The Zen Of Corporate Capital Structure Neutrality, Herwig J. Schlunk

Vanderbilt Law School Faculty Publications

Given the current tax rate structure - where the marginal tax rate of some persons exceeds the corporate tax rate and the marginal tax rate of others is exceeded by it - corporations are generally well advised to employ both debt and equity in their capital structures. The former will be held by low tax rate taxpayers and will serve to lower the effective aggregate tax rate6 on the corporation's taxable income. The latter will be held by high tax rate taxpayers and will serve to keep low the effective aggregate tax rate on the corporation's unrecognized economic income (such …


Farms, Their Environmental Harms, And Environmental Laws, J.B. Ruhl Jan 2000

Farms, Their Environmental Harms, And Environmental Laws, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Farms are one of the last uncharted frontiers of environmental regulation in the United States. Despite the substantial environmental harms they cause-habitat loss and degradation, soil erosion and sedimentation, water resources depletion, soil and water salinization, agrochemical releases, animal wastes, nonpoint source water pollution, and air pollution-environmental law has given them a virtual license to do so. When combined, the active and passive safe harbors farms enjoy in most environmental laws amount to an anti-law that finds no rational basis given the magnitude of harms farms cause. This paper comprehensively documents the environmental harms farms cause and the safe harbors …


Household Specialization And The Male Marriage Wage Premium, Joni Hersch, Leslie S. Stratton Jan 2000

Household Specialization And The Male Marriage Wage Premium, Joni Hersch, Leslie S. Stratton

Vanderbilt Law School Faculty Publications

Empirical research has consistently shown that married men have substantially higher wages, on average, than otherwise similar unmarried men. One commonly cited hypothesis to explain this pattern is that marriage allows one spouse to specialize in market production and the other to specialize in home production, enabling the former - usually the husband - to acquire more market-specific human capital and, ultimately, earn higher wages. The authors test this hypothesis using panel data from the National Survey of Families and Households. The data reveal that married men spent virtually the same amount of time on home production as did single …


Implied Limits On The Legislative Power: The Intellectual Property Clause As An Absolute Constraint On Congress, Suzanna Sherry, Paul J. Heald Jan 2000

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 …


Apres Apprendi, Nancy J. King, Susan R. Klein Jan 2000

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 …


Working Both (Positivist) Ends Toward A New (Pragmatist) Middle In Environmental Law, J.B. Ruhl Jan 2000

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 …


Risk Equity, W. Kip Viscusi Jan 2000

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.


Trust, Trustworthiness, And The Behavioral Foundations Of Corporate Law, Margaret M. Blair, Lynn A. Stout Jan 2000

Trust, Trustworthiness, And The Behavioral Foundations Of Corporate Law, Margaret M. Blair, Lynn A. Stout

Vanderbilt Law School Faculty Publications

Conventional legal and economic analysis assumes that opportunistic behavior is discouraged and cooperation encouraged within firms primarily through the use of legal and market incentives. This presumption is embodied in the modern view that the corporation is best described as a "nexus of contracts," a collection of explicit and implicit agreements voluntarily negotiated among the selfishly rational parties who join in the corporate enterprise. In this article we take a different approach. We start from the observation that, in many circumstances, legal and market sanctions provide at best imperfect means of regulating behavior within the firm. We consider an alternate …


Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim Rossi Jan 2000

Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim Rossi

Vanderbilt Law School Faculty Publications

Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …


The False Promise Of The "New" Nondelegation Doctrine, Jim Rossi, Mark Seidenfeld Jan 2000

The False Promise Of The "New" Nondelegation Doctrine, Jim Rossi, Mark Seidenfeld

Vanderbilt Law School Faculty Publications

This essay responds to claims that the "new" nondelegation doctrine, applied by D.C. Circuit Judge Stephen Williams in American Trucking Association, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), advances the rule of law. The Supreme Court has generally favored ex post over ex ante mechanisms for control of administrative action. Currently, for instance, courts apply arbitrary and capricious review, as a way to control agency decision making ex post. But the rule of law benefits of the "new" nondelegation doctrine are no greater than those delivered by the current means of ex post controls. The rule of law …


Measuring Securities Market Efficiency In The Regulatory Setting, Randall Thomas, James F. Cotter Jan 2000

Measuring Securities Market Efficiency In The Regulatory Setting, Randall Thomas, James F. Cotter

Vanderbilt Law School Faculty Publications

In the "Aircraft Carrier," the Securities and Exchange Commission (SEC) proposed changes in federal securities disclosure requirements in an attempt to enhance and facilitate the process of issuing new securities. Under the proposed regulatory regime, the registration process would be simplified so that many larger, more experienced issuers would be able to use a new, shorter registration statement called Form B (as opposed to the more extensive Form A) whenever they sell securities to the public. To qualify to use Form B, a company with at least twelve months reporting history under the Exchange Act must either have a public …


Disentangling Deregulatory Takings, Jim Rossi, Susan Rose-Ackerman Jan 2000

Disentangling Deregulatory Takings, Jim Rossi, Susan Rose-Ackerman

Vanderbilt Law School Faculty Publications

Constitutional takings protections, such as those in the Fifth Amendment of the United States Constitution, create a potential for state liability for changes in regulatory policy by governments. This Article critiques takings jurisprudence in the context of two infrastructure investment issues: the stranded cost problem facing United States utility industries, which has given rise to claims of compensation for deregulatory takings; and the development of standards to protect direct foreign investment in developing countries. In both contexts, traditional legal doctrines do not adequately provide for the type of remedy sought so courts are in need of standards to assist them …


An End To Insanity: Recasting The Role Of Mental Disability In Criminal Cases, Christopher Slobogin Jan 2000

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 …