Law Commons^™

Unclaimed Property And Due Process: Justifying 'Revenue-Raising' Modern Escheat, Teagan J. Gregory

Michigan Law Review

States have long claimed the right to take custody of presumably abandoned property and hold it for the benefit of the true owner under the doctrine of escheat. In the face of increasing fiscal challenges, states have worked to increase their collection of unclaimed property via new escheat legislation that appears to bear little or no relation to protecting the interests of owners. Holders of unclaimed property have raised substantive due process challenges in response to these modern escheat statutes. This Note contends that two categories of these disputed laws-those shortening dormancy periods and those allowing states to estimate a …

Ostrom's Law: Property Rights In The Commons, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

Elinor Ostrom's work has immeasurably enhanced legal scholars' understanding of property. Although the richness of these contributions cannot be distilled into a single thesis, their flavor can be captured in a maxim I call Ostrom's Law: A resource arrangement that works in practice can work in theory. Ostrom's scholarship challenges the conventional wisdom by examining how people interact over resources on the ground – an approach that enables her to identify recurring institutional features associated with long-term success. In this essay, I trace some of the ways that Ostrom's focus on situated examples has advanced interdisciplinary dialogue about property as …

Political Risk And Sovereign Debt Contracts, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati

Coase-Sandor Institute for Law & Economics Research Paper Series

Default on sovereign debt is a form of political risk. Issuers and creditors have responded to this risk both by strengthening the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and by creating terms that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce …

Direct Concern In Regional Policy: The European Court Of Justice And The Southern Question, Daniela Caruso

Faculty Scholarship

For a few years, the European Court of Justice (ECJ) has declared inadmissible, for lack of direct concern, a number of annulment actions initiated by sub-state actors in the context of regional policy. This article compares the ECJ's holdings with the General Court's more generous application of the ‘direct concern’ standard in some of the same disputes, and argues in favour of the General Court's approach. The cases hereby analysed pertain to the implementation of structural funds in Southern Italy. Relating regional policy to the historical unfolding of the ‘Southern Question’, this article examines the unexpected opportunity for civic and …

Catastrophic Oil Spills And The Problem Of Insurance, Kenneth S. Abraham

Vanderbilt Law Review

The BP oil spill of 2010 focused considerable attention on the operating conduct of BP, on the potential liability of BP and other entities associated with the spill, and on the fund that BP established to provide compensation to victims of the spill. Much less attention has been paid, however, to the nature and scope of insurance covering losses caused by catastrophic environmental disasters such as oil spills. BP's establishment of the Gulf Coast Claims Facility, and the compensation that will be paid by that facility, will likely dampen awareness of the mismatches between the resulting losses and the insurance …

Litigating Bp's Contribution Claims In Publicly Subsidized Courts: Should Contracting Parties Pay Their Own Way?, Bruce L. Hay, Christopher Rendall-Jackson, David Rosenberg

Vanderbilt Law Review

In this Article, we focus on an important problem involving mass-accident cases that was highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to shift incurred or expected liability and damages between the business and governmental entities that participated in the activity that gave rise to the mass-accident risk. Participants in such ventures generally have the option to determine by contract beforehand whether to subject themselves to contribution claims and, if so, whether such claims will be resolved by a publicly funded court or by a privately funded process, such as arbitration. Because …

Local Government Law, Andrew R. Mcroberts

University of Richmond Law Review

No abstract provided.

Bulls, Bears, And Pigs: Revisiting The Legal Minefield Of Virginia Fraudulent Transfer Law, Isaac A. Mcbeth, Landon C. Davis Iii

University of Richmond Law Review

No abstract provided.

Wills, Trusts, And Estates, J. William Gray Jr., Katherine E. Ramsey

University of Richmond Law Review

The 2011 session of the Virginia General Assembly enacted wills, trusts, and estates legislation that: (i) eliminated a potential federal transfer tax trap in inter vivos marital trusts, (ii) interpreted transfer tax formula clauses in light of recent changes in federal law, and (iii) adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. Three other legislative enactments and seven opinions of the Supreme Court of Virginia during the twelve months ending June 1, 2011, addressed issues affecting this field. In addition to addressing those developments, this article summarizes a recent federal district court opinion that dealt with a significant …

A Vanishing Virginia Constitution?, Hon. Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

A False Start In The Race Against Doping In Sport: Concerns With Cycling’S Biological Passport, Nicholas Hailey

Duke Law Journal

Professional cycling has suffered from a number of doping scandals. The sport’s governing bodies have responded by implementing an aggressive new antidoping program known as the biological passport. Cycling’s biological passport marks a departure from traditional antidoping efforts, which have focused on directly detecting prohibited substances in a cyclist’s system. Instead, the biological passport tracks biological variables in a cyclist’s blood and urine over time, monitoring for fluctuations that are thought to indirectly reveal the effects of doping. Although this method of indirect detection is promising, it also raises serious legal and scientific concerns. Since its introduction, the cycling community …

Tragic Rights: The Rights Critique In The Age Of Obama, Robin L. West

William & Mary Law Review

No abstract provided.

Regulating Governmental Data Mining In The United States And Germany: Constitutional Courts, The States, And New Technology, Paul M. Schwartz

William & Mary Law Review

No abstract provided.

Disparate Impact Realism, Amy L. Wax

William & Mary Law Review

No abstract provided.

Partisan Conflicts Over Presidential Authority, Jide Nzelibe

William & Mary Law Review

No abstract provided.

Is Legality Political?, Frederick Schauer

William & Mary Law Review

No abstract provided.

Federalism Under Obama, Gillian E. Metzger

William & Mary Law Review

No abstract provided.

Technologies Of Control And The Future Of The First Amendment, Christopher S. Yoo

William & Mary Law Review

No abstract provided.

Book Review Of 'A Great And Noble Occupation!': The History Of The Society Of Legal Scholars, By Fiona Cownie And Raymond Cocks, Kim Economides

Journal of Legal Education

No abstract provided.

Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois

Vanderbilt Law School Faculty Publications

Because punishable guilt requires that bad thoughts accompany bad acts, the Model Penal Code (MPC) typically requires that jurors infer the past mental state of a criminal defendant. More specifically, jurors must sort that mental state into one of four specific categories - purposeful, knowing, reckless, or negligent - which in turn defines the nature of the crime and the extent of the punishment. The MPC therefore assumes that ordinary people naturally sort mental states into these four categories with a high degree of accuracy, or at least can reliably do so when properly instructed. It also assumes that ordinary …

Sorting Guilty Minds, Francis X. Shen, Morris B. Hoffman, Owen D. Jones, Joshua D. Greene, Rene Marois

Vanderbilt Law School Faculty Publications

Notes: This document contains the four online Appendix Tables for the article Sorting Guilty Minds.

The Article is available in full at: http://ssrn.com/abstract=1746107.

Full text of the scenarios used in the experiments is available online at: http://law.vanderbilt.edu/download.aspx?id=6421

Crime-Severity Distinctions And The Fourth Amendment: Reassessing Reasonableness In A Changing World, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine-crime severity. The Supreme Court emphasizes that "reasonableness" is the "touchstone" of Fourth Amendment analysis. Yet, in evaluating contested searches and seizures, current Fourth Amendment doctrine ignores a key determinant of reasonableness, the crime under investigation. As a result, an invasive search of a suspected murderer …

Deterring And Compensating Oil-Spill Catastrophes: The Need For Strict And Two-Tier Liability, W. Kip Viscusi, Richard J. Zeckhauser

Vanderbilt Law School Faculty Publications

The BP Deepwater Horizon oil spill highlighted the glaring weaknesses in the current liability and regulatory regime for oil spills and for environmental catastrophes more broadly. This Article proposes a new liability structure for deep-sea oil drilling and for catastrophic risks generally. It delineates a two-tier system of liability. The first tier would impose strict liability up to the firm's financial resources, including insurance coverage. The second tier would be an annual tax equal to the expected costs in the coming year beyond this damages amount. Before beginning a risky operation, the proposed liability scheme would identify a single firm-the …

The One Percent Problem, Kevin M. Stack, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Parties frequently seek exemption from regulation on the ground that they contribute only a very small share to a problem. These one percent arguments are not inherently questionable; it can be efficient to exclude relatively small contributors. These arguments for exemption garner broad acceptance in part because they appeal to behavioral biases that induce individuals to discount or ignore small values. But when a regulatory problem can be solved only by regulating small contributors, accepting one percent arguments creates what we call the one percent problem. This Article shows that this general problem for regulation has particularly damaging effects on …

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Among modern-day legal academics determinate sentencing and limiting retributivism tend to be preferred over indeterminate sentencing, at least in part because the latter option is viewed as immoral. This Article contends to the contrary that, properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so. More specifically, the position defended in this Article is that, once a person is convicted of such an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within very broad ranges set by the …

A Critical Appraisal Of The Department Of Justice's New Approach To Medical Marijuana, Robert A. Mikos

Vanderbilt Law School Faculty Publications

The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hard-ball tactics favored by earlier Administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DOJ) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the DOJ’s new Non Enforcement Policy (NEP). In a nutshell, it suggests that early enthusiasm for the …

Emotional Regulation And Judicial Behavior, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Judges are human and experience emotion when hearing cases, though the standard account of judging long has denied that fact. In the post-Realist era it is possible to acknowledge that judges have emotional reactions to their work, yet our legal culture continues to insist that a good judge firmly puts those reactions aside. Thus, we expect judges to regulate their emotions, either by preventing emotion’s emergence or by walling off its influence. But judges are given precisely no direction as to how to engage in emotional regulation.
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/="/">This Article proposes a model for judicial emotion regulation that goes …

Can A Password Stop Police From Searching Your Cell Phone Incident To Arrest?, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Contracting For Procedure, Kevin E. Davis, Helen Hershkoff

William & Mary Law Review

Judicial decisions of public courts increasingly are based on “contract procedure,” private rules of procedure that the parties draft and assent to before a dispute even has arisen. These rules govern such matters as the forum in which the proceeding will be conducted, whether a jury will be involved in adjudicating the dispute, the scope of rights of discovery, and rules of evidence. The practice deserves greater attention and should raise more profound concerns than the academic literature currently suggests. We argue that contract procedure operates as a form of privatization that effectively outsources government functions to private contracting parties. …

Laws For Learning In An Age Of Acceleration, John O. Mcginnis

William & Mary Law Review

No abstract provided.