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Articles 1 - 30 of 107
Full-Text Articles in Law
Jumping The Pond: Transnational Law And The Future Of Chemical Regulation, Noah M. Sachs
Jumping The Pond: Transnational Law And The Future Of Chemical Regulation, Noah M. Sachs
Vanderbilt Law Review
Just as domestic pollution can cause transnational externalities, domestic environmental regulation can create transnational ripple effects in other jurisdictions. In this Article, I show how chemical regulation-long a weak link in the network of U.S. environmental laws-is about to be reshaped and reformed through the extraterritorial ripple effects of new European Union legislation. Contributing to both international law and environmental law scholarship, this Article shows how transnational information flows can be harnessed to end the longstanding drought of data on chemical toxicity in the United States.
Part I of this Article critiques the U.S. chemical regulatory regime, arguing that a …
Does Copyright Law Promote Creativity? An Empirical Analysis Of Copyright's Bounty, Raymond S. Ray, Jiayang Sun, Yiying Fan
Does Copyright Law Promote Creativity? An Empirical Analysis Of Copyright's Bounty, Raymond S. Ray, Jiayang Sun, Yiying Fan
Vanderbilt Law Review
Modern copyright law is based upon a theory: increase copyright protection and you increase the number of creative works available to society. This theory has been the driving force behind an economic vision that has expanded, beyond all recognition, the original law created by the Statute of Anne. And with this expansion, we are told that the costs associated with copyright are worthwhile because of the bounty it produces. What if this theory could be tested? After all, this is not a question of faith or morality, nor is it a statement on how humans should behave; it is a …
The End Of Objector Blackmail?, Brian T. Fitzpatrick
The End Of Objector Blackmail?, Brian T. Fitzpatrick
Vanderbilt Law Review
For many years, courts and commentators have been concerned about a phenomenon in class action litigation referred to as objector "blackmail." The term "blackmail" is used figuratively rather than literally; so-called objector "blackmail" is simply a specific application of the general concern with legal regimes that permit one or more individuals to "hold out" and disrupt collective action. The holdout problem in class action litigation stems from the following series of events: When a class action is settled, class members who do not like the proposed settlement are permitted to file objections with the federal district court that must approve …
A Uniform System For The Enforceability Of Forum Selection Clauses In Federal Courts, Ryan T. Holt
A Uniform System For The Enforceability Of Forum Selection Clauses In Federal Courts, Ryan T. Holt
Vanderbilt Law Review
In the early 1980s, a successful and ambitious Alabama businessman named Walter H. Stewart purchased a failing local copying business. Through the Stewart Organization, a corporation he controlled, Stewart sought to steer this troubled business to the realm of profitability. To do so, he entered into a dealership contract with Ricoh Corporation, a national manufacturer of copy machines that conducted its operations in New York. Unfortunately, their relationship soured. Stewart sued Ricoh in an Alabama federal district court, basing jurisdiction on diversity of citizenship. Ricoh did not want to litigate in Alabama, and the original dealership contract seemed to provide …
Fearing Fear Itself: Photo Identification Laws, Fear Of Fraud, And The Fundamental Right To Vote, Joel A. Heller
Fearing Fear Itself: Photo Identification Laws, Fear Of Fraud, And The Fundamental Right To Vote, Joel A. Heller
Vanderbilt Law Review
In his first inaugural address, President Franklin Roosevelt assured the American people that "the only thing we have to fear is fear itself." President Roosevelt's famous statement begs the question, however, of why we should fear fear itself. What, or whom, does fear harm? When faced with the presence of fear, society must consider what steps it is willing to take and what it is willing to give up in order to address that fear. These considerations become particularly acute when the government uses the existence of fear as a rationale for legislation. The propriety of fear-based lawmaking is questionable, …
The Liberal Tradition Of The Supreme Court Clerkship: Its Rise, Fall, And Reincarnation?, William E. Nelson, Harvey Rishikof, I. Scott Messinger, Michael Jo
The Liberal Tradition Of The Supreme Court Clerkship: Its Rise, Fall, And Reincarnation?, William E. Nelson, Harvey Rishikof, I. Scott Messinger, Michael Jo
Vanderbilt Law Review
This Article presents the first comprehensive empirical study of the post-clerkship employment of law clerks at the Supreme Court from 1882 to the present, and it uses that data to flesh out a historical and institutional interpretation of the clerkship and the recent political polarization of the Court more generally. The liberal tradition of the clerkship arose out of Louis Brandeis's vision of former law clerks serving a progressive legal agenda, a tradition that Felix Frankfurter helped institutionalize while striving to remove ideological bias. With the advent of a conservative bloc on the Court, this tradition has waned, due to …
Auditing The Pcaob: A Test To The Accountability Of The Uniquely Structured Regulator Of Accountants, Michael A. Thomason, Jr.
Auditing The Pcaob: A Test To The Accountability Of The Uniquely Structured Regulator Of Accountants, Michael A. Thomason, Jr.
Vanderbilt Law Review
After a slew of highly publicized corporate accounting scandals during the early 2000s at prominent companies-including Enron, WorldCom, Adelphia, and Tyco-public confidence in the integrity of financial reporting by public companies was undoubtedly shaken. Several major financial reporting frauds demonstrated serious weaknesses with the then self-regulated accounting profession, including the failure of auditors to detect those companies that were "cooking their books." The collapse of several prominent companies not only affected top executives, who often were subjected to civil and criminal charges, but also produced harsh consequences for several other constituencies who relied on the integrity of the accounting firms …
On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos
On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos
Vanderbilt Law Review
Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana not only survive careful preemption analysis, they constitute the de facto governing law in thirteen states. This Article argues that these state laws and most related regulations have not been and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress's preemption power by the anti-commandeering rule, properly understood. The Article …
The Hidden Dimension Of Nineteenth-Century Immigration Law, Kerry Abrams
The Hidden Dimension Of Nineteenth-Century Immigration Law, Kerry Abrams
Vanderbilt Law Review
Most histories of immigration law are histories of restriction. This emphasis is hardly surprising: beginning in 1875, Congress passed increasingly draconian acts, mostly targeting Chinese immigrants, which ultimately led to the outright exclusion of nearly all Asian immigrants. Then, in the 1920s, Congress enacted quotas aimed at keeping the U.S. population primarily white, with an emphasis on immigrants from northern and western European stock. And throughout history in general, immigration law has focused not only on excluding but also on deporting those immigrants deemed undesirable.
In addition to focusing on exclusion, immigration law history has also been preoccupied with federal …
The Hidden Second Amendment Framework Within "District Of Columbia V. Heller", Andrew R. Gould
The Hidden Second Amendment Framework Within "District Of Columbia V. Heller", Andrew R. Gould
Vanderbilt Law Review
The Second Amendment has always been shrouded in constitutional mystery. For most of our history, this mystery has centered on whether the Second Amendment protects an individual or collective right to keep and bear arms. The Supreme Court had not addressed the issue in any meaningful fashion, and lower courts continuously struggled with it, leading legal commentators to produce countless books, articles, and symposia on the topic.
The Court resolved this central Second Amendment question in June 2008 when it decided District of Columbia v. Heller. In Heller, the Court squarely confronted the meaning of the Second Amendment and held …
Star Creation: The Incubation Of Mutual Funds, Alan R. Palmiter, Ahmed E. Taha
Star Creation: The Incubation Of Mutual Funds, Alan R. Palmiter, Ahmed E. Taha
Vanderbilt Law Review
Mutual fund incubation is a process by which new funds are initially operated out of public view. The high-performing funds are then marketed to investors, and the low-performing funds are quietly terminated. This selection process is not revealed to investors, thus creating the illusion that the successful funds' returns were the result of skill rather than luck. Also, some fund companies subsidize their incubator funds in ways that do not continue after the funds are sold to the public. As a result, the high returns of successful incubator funds generally do not persist after the funds are marketed to investors. …
The Dragon In The Room: China's Anti-Monopoly Law And International Merger Review, Christopher Hamp-Lyons
The Dragon In The Room: China's Anti-Monopoly Law And International Merger Review, Christopher Hamp-Lyons
Vanderbilt Law Review
In a world where mergers affect every corner of the planet, any government seeking competitive markets has an interest in ensuring that these mergers are not harmful to competition. As China, the world's most populous country, has committed to a market economy, it has now taken the momentous step of enacting its own Anti- Monopoly Law ("AML"). This effects a dramatic change in the antitrust regulation of multinational mergers. In international antitrust, even subtle legal differences between jurisdictions create significant potential for conflict. For this reason, the advent of antitrust merger review by a country with such massive international economic …
The Reviewability Of The President's Statutory Powers, Kevin M. Stack
The Reviewability Of The President's Statutory Powers, Kevin M. Stack
Vanderbilt Law Review
From the Supreme Court's earliest days, it has reviewed some, but not all, challenges to the President's claims that a statute authorized his action. Not surprisingly, the Court's decisions granting review of the President's assertions of statutory powers have garnered more attention than its denials of review. Beginning with Marbury v. Madison1 and Little v. Barreme,2 gaining momentum in the twentieth century with the extensive discussion of statutory authority in Youngstown Sheet & Tube Co. v. Sawyer3 and Dames & Moore v. Regan,4 and accelerating in recent years with Hamdi v. Rumsfeld,5 Hamdan v. Rumsfeld,6 and Medellin v. Texas,7 the …
Arrow's Theorem And The Exclusive Shareholder Franchise, Grant Hayden, Matthew Bodie
Arrow's Theorem And The Exclusive Shareholder Franchise, Grant Hayden, Matthew Bodie
Vanderbilt Law Review
The doctrine of shareholder primacy has received substantial attention from its legions of proponents, its indefatigable opponents, and even its disinterested observers. The notion that a corporation should be run in the interests of its shareholders is the theoretical foundation upon which modern corporate law stands. Almost all empirical study in corporate law is premised on a notion of shareholder primacy, and these results would lose much of their meaning if the theory were somehow disproved. Perhaps most importantly, shareholders do in fact have primacy of place within the corporation, as they alone generally have the right to elect the …
Escaping The Takings Maze: Impact Fees And The Limits Of The Takings Clause, Charles T. Switzer
Escaping The Takings Maze: Impact Fees And The Limits Of The Takings Clause, Charles T. Switzer
Vanderbilt Law Review
The cost of a new home in swanky Naples, Florida-home of charming shopping districts, lovely white-sand beaches, and more golf holes per capita than anywhere else in America-recently topped $450,000. Included in this cost is a staggering $33,000 impact fee bill from the county. Even amidst a meltdown in the housing industry and a severe economic slump, local politicians have refused to reconsider the high fees. Impact fees are levied by local governments on new developments to pay a share of the costs of providing public infrastructure for those developments. The money is used to improve sewers, roads, parks, and …
Reawakening "Privileges Or Immunities": An Originalist Blueprint For Invalidating State Felon Disenfranchisement Laws, John B. Schrader
Reawakening "Privileges Or Immunities": An Originalist Blueprint For Invalidating State Felon Disenfranchisement Laws, John B. Schrader
Vanderbilt Law Review
Terrence Johnson, Jim Harris, and Alexander Friedman, all Tennessee residents, have a few things in common. All are convicted felons: Johnson for federal wire fraud, Harris for drug offenses and burglary, and Friedman for assault and aggravated armed robbery.' All had completed their respective terms of imprisonment, parole, and probation for those offenses by February 2008. But all nevertheless were saddled with various unpaid legal obligations: Johnson with $40,000 in restitution in connection with his offense and $1,200 in overdue child support payments; Harris with $2,500 in overdue child support payments; and Friedman with $1,000 in restitution in connection with …
What Employees Say, Or What Employers Do: How Post-Cleveland Decisions Continue To Obscure Discrimination, Lauren Lowe
What Employees Say, Or What Employers Do: How Post-Cleveland Decisions Continue To Obscure Discrimination, Lauren Lowe
Vanderbilt Law Review
The phrase "equal justice" has dubious meaning for persons with disabilities who seek redress of employment discrimination in court. After experiencing job loss and facing relatively slim chances of reemployment, many of these individuals seek judicial recognition that their employers failed to accommodate their disabilities. Yet the vast majority of plaintiffs who bring employment discrimination lawsuits under the Americans with Disabilities Act ("ADA") lose. In 2006, employers prevailed in 212 of the 272 cases that went to trial in federal court. Some commentators point to the high win rates for employers as evidence of judicial frustration with the volume of …
Administering Marriage: Marriage-Based Entitlements, Bureaucracy, And The Legal Construction Of The Family, Kristin A. Collins
Administering Marriage: Marriage-Based Entitlements, Bureaucracy, And The Legal Construction Of The Family, Kristin A. Collins
Vanderbilt Law Review
In 1985, Gertrude Thomas sought Social Security survivors' benefits as Joseph Thomas's widow. Gertrude had been married to Joseph-or thought herself to have been-for forty-seven years. She bore and raised ten children over the course of their marriage. Gertrude knew Joseph had been married briefly before they wed, but she thought that his first marriage had ended in divorce. When the Department of Health and Human Services asked Gertrude for proof of her marriage to Joseph, she could not produce a marriage certificate or any other record of her marriage. She did have a statement signed by Joseph acknowledging their …
Putting A Stop To Sprawl: State Intervention As A Tool For Growth Management, Lesley R. Attkisson
Putting A Stop To Sprawl: State Intervention As A Tool For Growth Management, Lesley R. Attkisson
Vanderbilt Law Review
"Sprawl is America's most lethal disease." Although such a statement appears exaggerated upon first consideration, both the scope of urban sprawl and its attendant consequences support the suggestion that sprawl threatens the vitality of the United States. For example, in California, sprawl has reached such a dangerous level that one of the nation's largest banks publicly warned of the potential devastation: "Sprawl has created enormous costs that California can no longer afford. Ironically, unchecked sprawl has shifted from an engine of California's growth to a force that now threatens to inhibit growth and degrade the quality of our life." The …
The Criminalization Of Mental Illness: How Theoretical Failures Create Real Problems In The Criminal Justice System, Georgia L. Sims
The Criminalization Of Mental Illness: How Theoretical Failures Create Real Problems In The Criminal Justice System, Georgia L. Sims
Vanderbilt Law Review
When Andrea Yates drowned her five children, she believed she was preventing Satan from infiltrating their souls. Rusty Yates blamed both the mental health system and the criminal justice system for his wife's actions and also for her initial conviction. Andrea Yates suffered from post-partum depression and psychosis; had attempted suicide twice; had been hospitalized on several occasions for psychiatric treatment; and was found not guilty by reason of insanity in her 2006 retrial.' Although Yates likely will spend the rest of her life in a mental institution, she will receive mental health treatment throughout her time at the facility. …
Outsourcing And Insourcing Crime: The Political Economy Of Globalized Criminal Activity, Tomer Broude, Doron Teichman
Outsourcing And Insourcing Crime: The Political Economy Of Globalized Criminal Activity, Tomer Broude, Doron Teichman
Vanderbilt Law Review
Globalization is on the rise. The last few decades have been marked by dramatic reductions in transaction costs that have helped bring together local markets. Technological advances such as wireless telecommunications and the Internet have connected buyers and sellers of goods and services across the planet through transactions that were not even feasible, let alone cost-effective, as little as a decade ago. No less importantly, the systematic removal of regulatory barriers to international trade has facilitated economic globalization. At the forefront of international economic liberalization, the creation of the World Trade Organization ("WTO") in 1995 extended multilateral trading rules beyond …
Privacy, Accountability, And The Cooperating Defendant: Towards A New Role For Internet Access To Court Records, Caren M. Morrison
Privacy, Accountability, And The Cooperating Defendant: Towards A New Role For Internet Access To Court Records, Caren M. Morrison
Vanderbilt Law Review
Now that federal court records are available online, anyone can obtain criminal case files instantly over the Internet. But this unfettered flow of information is in fundamental tension with many goals of the criminal justice system, including the integrity of criminal investigations, the accountability of prosecutors, and the security of witnesses. It has also altered the behavior of prosecutors intent on protecting the identity of cooperating defendants who assist them in investigating other targets. As prosecutors and courts collaborate to obscure the process by which cooperators are recruited and rewarded, Internet availability risks degrading the value of the information obtained …
Emotional Common Sense As Constitutional Law, Terry A. Maroney
Emotional Common Sense As Constitutional Law, Terry A. Maroney
Vanderbilt Law Review
n Gonzales v. Carhart the Supreme Court invoked post- abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about emotions. A species of common sense, it seems obvious and universal to …
The Circle Of Assent: How "Agreement" Can Save Mandatory Arbitration In Long-Term Care Contracts, Lauren Gaffney
The Circle Of Assent: How "Agreement" Can Save Mandatory Arbitration In Long-Term Care Contracts, Lauren Gaffney
Vanderbilt Law Review
On September 28, 1997, a resident at the Comanche Trail Nursing Center physically attacked his eighty-one-year-old roommate, Tranquilino Mendoza. As a result of the attack, Mr. Mendoza suffered a concussion and brain damage. His daughter claimed that her father was never the same after the attack and filed a lawsuit against the long-term care facility alleging negligence. In 2006, a jury awarded Mr. Mendoza $160 million.
Similarly, on April 26, 2003, a resident of the Heritage House Nursing and Rehabilitation Center allegedly attacked Carolyn Mason, another resident at the same facility. Mrs. Mason suffered a broken hip.6 Like Mr. Mendoza, …
Samuel Chase: In Defense Of The Rule Of Law And Against The Jeffersonians, Stephen B. Presser
Samuel Chase: In Defense Of The Rule Of Law And Against The Jeffersonians, Stephen B. Presser
Vanderbilt Law Review
Samuel Chase is not exactly unknown. Indeed, as the only U.S. Supreme Court Justice to be impeached, he achieved a sort of instant fame, or instant infamy. He is, I think, fairly characterized as a "neglected Justice," however, because, in our exclusive focus on his impeachment, we tend to forget that he did possess considerable intelligence, virtue, legal ability, and energy that make him worth our study. His life is also something of an object lesson in how a judge's self-destructive tendencies can harm his reputation. As Richard Peters, his colleague on the Pennsylvania Circuit Court remarked, Chase had a …
Neglected Justices: Discounting For History, G. Edward White
Neglected Justices: Discounting For History, G. Edward White
Vanderbilt Law Review
The category of "neglected Justices" presupposes meaningful baselines for evaluating judicial reputations. A Justice cannot be deemed "neglected" except against the backdrop of some purported consensus about that Justice's reputation and the reputations of other Justices. Moreover, when the category of "neglected Justices" encompasses the performance of Justices who served in different time periods, it also presupposes that evaluative baselines for Justices can retain their integrity in the face of historical change and historical contingency.
This Article argues that when one discounts for history in the process of evaluating judicial reputations, the effects of history are sufficiently powerful to throw …
There Were Great Men Before Agamemnon, William R. Casto
There Were Great Men Before Agamemnon, William R. Casto
Vanderbilt Law Review
John Marshall is the Agamemnon of Supreme Court history. He is universally considered the Court's greatest Justice, and rightly so. But there were great Justices before Marshall. One of those great Justices was James Iredell. No Justice in the Court's history has provided a more detailed or sophisticated explanation and justification of the doctrine of judicial review. Iredell needs a bard, and this Essay is my ode to his memory.
William Johnson, The Dog That Did Not Bark?, Mark R. Killenbeck
William Johnson, The Dog That Did Not Bark?, Mark R. Killenbeck
Vanderbilt Law Review
The conventional wisdom is that Justice William Johnson, Jr., was the "the first dissenter." This is not literally true. The first published opinion of the Court was Georgia v. Brailsford, in which each member of the Court expressed his views seriatim. Ironically, the first to speak was the first Justice Johnson, Thomas of Maryland, whose reasoning helped create a 4-2 split that produced a number of Supreme Court firsts: the first published set of opinions, the first split decision, and the first dissent.
It was the "other" Justice Johnson, William of South Carolina, who earned the reputation as the first …
Bushrod Washington, Herbert A. Johnson
Bushrod Washington, Herbert A. Johnson
Vanderbilt Law Review
In October 1822, President Thomas Jefferson urged Justice William Johnson to take the lead in reinstituting the Jay-Ellsworth Court's practice of issuing seriatim opinions. He extolled the English preference for documenting each judge's reasoning on the issues before the Court and deplored its recent abandonment under the influence of Lord Mansfield. Justifying his own silent acquiescence in opinions of the Marshall Court, Johnson pointed to the situation when he joined the U.S. Supreme Court in 1804. He recalled that "Cushing was incompetent. Chase could not be got to think or write-Patterson [sic] was a slow man and willingly declined the …
Jacksonian Jurisprudence And The Obscurity Of Justice John Catron, Austin Allen
Jacksonian Jurisprudence And The Obscurity Of Justice John Catron, Austin Allen
Vanderbilt Law Review
This Article argues that Justice Catron's acceptance of the general premises of the Court's Jacksonian jurisprudence accounts for his obscurity. Part One demonstrates that Catron articulated a similar framework while serving on the Tennessee Supreme Court. Part Two illustrates his continued support for that framework after he moved to the U.S. Supreme Court. Part Three, however, demonstrates that, although he embraced much of the Taney Court's jurisprudence, Catron did not move in lockstep with his colleagues. Indeed, the elements he emphasized within that framework-namely, support for state sovereignty and equality as well as an aversion to judicial policymaking-led him to …