Law Commons^™

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

Fordham Law Review

   In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in a …

A Pillar Of Democracy: Reflections On The Role And Work Of The Constitutional Court Of South Africa, Kate O’Regan

Fordham Law Review

No abstract provided.

Shareholder Litigation In Mergers And Acquisitions, Randall S. Thomas, C. N.V. Krishnan, Ronald W. Masulis

Vanderbilt Law School Faculty Publications

Using hand-collected data, we examine the targeting of shareholder class action lawsuits in merger & acquisition (M & A) transactions, and the associations of these lawsuits with offer completion rates and takeover premia. We find that M & A offers subject to shareholder lawsuits are completed at a significantly lower rate than offers not subject to litigation, after controlling for selection bias, different judicial standards, major offer characteristics, M & A financial and legal advisor reputations as well as industry and year fixed effects. M & A offers subject to shareholder lawsuits have significantly higher takeover premia in completed deals, …

Unintended Consequences: The Impact Of The Court's Recent Cases On Structural Ineffective Assistance Of Counsel Claims, Lauren D. Sudeall

Vanderbilt Law School Faculty Publications

Advocates seeking indigent defense reform have often relied on civil litigation to prospectively enforce the Sixth Amendment right to counsel and to attack structural deficiencies of indigent defense systems-such as under- funding-that are likely to lead to system-wide ineffective assistance. Although the United States Supreme Court has addressed myriad aspects of postconviction ineffective assistance of counsel claims made in the criminal context, particularly in the last decade or so,' many of these cases have had little direct bearing on the way in which advocates have attempted to enforce the Sixth Amendment in the civil context. The Supreme Court has never …

What’S To Know? Puzzles In The Literature On The Value Of Statistical Life, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Notwithstanding the general acceptance of the value of statistical life (VSL) estimates for policy assessment purposes, several important unresolved issues remain. First, the results from revealed preference studies are systematically higher than those from stated preference studies, potentially limiting the usefulness of stated preference studies in generalizing the VSL estimates to different populations and kinds of risks. Second, extrapolating the results of meta-analyses to project the VSL for different population groups requires that such generalization be reflective of the underlying economic content of what average VSL estimates reflect. Third, government agencies within and across countries place differing emphasis on types …

Do Vcs Use Inside Rounds To Dilute Founders? Some Evidence From Silicon Valley, Brian Broughman, Jesse Fried

Vanderbilt Law School Faculty Publications

In the bank-borrower setting, a firm's existing lender may exploit its positional advantage to extract rents from the firm in subsequent financings. Analogously, a startup's existing venture capital investors (VCs) may dilute the founder through a follow-on financing from these same VCs (an “inside” round) at an artificially low valuation. Using a hand-collected dataset of Silicon Valley startup firms, we find little evidence that VCs use inside rounds to dilute founders. Instead, our findings suggest that inside rounds are generally used as “backstop financing” for startups that cannot attract new money, and these rounds are conducted at relatively high valuations …

The Incredible Shrinking Confrontation Clause, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

Sharp turns in the Supreme Court's recent Confrontation Clause jurisprudence have left scholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded as the Court's decisions in Davis v. Washington and Bryant v. Michigan revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right.

Recent scholarship strives to reanimate the jurisprudence by expanding the doctrinal definition of "testimonial" statements - the sole form of evidence Associate Professor, William & Mary Law School. I would like …

Interpreting Regulations, Kevin M. Stack

Vanderbilt Law School Faculty Publications

The age of statutes has given way to an era of regulations, but our jurisprudence has fallen behind. Despite the centrality of regulations to law, courts have no intelligible approach to regulatory interpretation. The neglect of regulatory interpretation is not only a shortcoming in interpretive theory but also a practical problem for administrative law. Canonical doctrines of administrative law ” Chevron, Seminole Rock/Auer, and Accardi ” involve interpreting regulations, and yet courts lack a consistent approach. This Article develops a method for interpreting regulations and, more generally, situates regulatory interpretation within debates over legal interpretation. It argues that a purposive …

What Is The Essential Fourth Amendment?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen Schulhofer provides a strong, popularized brief for interpreting the Fourth Amendment as a command that judicial review precede all non-exigent police investigative actions that are more than minimally intrusive. This review points out a few places where Schulhofer may push the envelope too far or not far enough, but concludes that More Essential Than Ever is a welcome reminder for scholars and the public at large that the Fourth Amendment is a fundamental bulwark of constitutional jurisprudence and deserves more respect than the Supreme Court has given …

Can The States Keep Secrets From The Federal Government?, Robert A. Mikos

Vanderbilt Law School Faculty Publications

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer information …

Plea Bargaining And The Right To The Effective Assistance Of Counsel: Where The Rubber Hits The Road In Capital Cases, John H. Blume

Cornell Law Faculty Publications

No abstract provided.

Grand Theft Auto Loans: Repossession And Demographic Realities In Title Lending, Nathalie Martin

Faculty Scholarship

This Article analyzes empirical data on one of America's fastest growing credit products, the title loan. A title loan is a high-interest, deeply oversecured, consumer loan, in which the consumer uses an unencumbered automobile as collateral for a non-purchase money loan. Title loans are made based solely on equity in a car. If a customer has insufficient income to pay the payments under the loan, typically interest-only payments at 300% per annum or more, the lender repossesses the vehicle, many of which have GPS trackers installed for this purpose. Not surprisingly, the repossession rates for title loans are higher than …

Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews

BYU Law Review

No abstract provided.

Repudiating The Narrow Rule In Capital Sentencing, Scott W. Howe

BYU Law Review

This Article proposes a modest reform of Eighth Amendment law governing capital sentencing to spur major reform in the understanding of the function of the doctrine. The Article urges the Supreme Court to renounce a largely empty mandate known as the “narrowing” rule and the rhetoric of equality that has accompanied it. By doing so, the Court could speak more truthfully about the important but more limited function that its capital-sentencing doctrine actually pursues, which is to ensure that no person receives the death penalty who does not deserve it. The Court could also speak more candidly than it has …

Why The National Popular Vote Compact Is Unconstitutional, Norman R. Williams

BYU Law Review

Unable to secure passage of a federal constitutional amendment abolishing the Electoral College, several opponents of the Electoral College have sought to establish the direct, popular election of the President via an interstate compact according to which individual signatory states agree to appoint their presidential electors in accordance with the nationwide popular vote. Ostensibly designed to prevent elections, such as the one in 2000, in which the Electoral College “misfired” and chose the candidate who received fewer popular votes, the National Popular Vote Compact has been adopted by several states, including California. In this Article, I argue that the National …

The Dual-Faceted Federalism Framework And The Derivative Constitutional Status Of Local Governments, Michael W. Cannon

BYU Law Review

No abstract provided.

Taxing And Tuition: A Legislative Solution To Growing Endowments And The Rising Costs Of A College Degree, Matt Willie

BYU Law Review

No abstract provided.

Frontmatter

BYU Law Review

No abstract provided.

Reverse-Commandeering, Margaret Hu

Faculty Publications

Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anticommandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration …

The Age Of Marital Capacity: Reconsidering Civil Recognition Of Adolescent Marriage, Vivian E. Hamilton

Faculty Publications

Age at marriage has for decades been the strongest and most unequivocal predictor of marital failure. The likelihood of divorce nears eighty percent for those who marry in mid-adolescence, then drops steadily. Delaying marriage until the mid-twenties reduces one’s likelihood of divorce to thirty percent. Women who marry at age twenty-one or younger, moreover – and one in ten U.S. women do – experience worse mental and physical health, attain less education, and earn lower wages than those who marry later. Post-divorce, they and their children tend to endure even greater economic deprivation and instability than do never-married mothers, who …

The Cultural Analysis Paradigm: Women And Synagogue Ritual As A Case Study, Roberta Rosenthal Kwall

Cardozo Law Review

This Article develops an original cultural analysis paradigm with significant implications for understanding the relationship between law and culture. It also illustrates how this relationship should inform the normative application of areas of law in which tensions exist between modern sensibilities and traditional practices steeped in cultural perspectives from other times. Indeed, the negotiation between preservation and change confronts all ancient cultural traditions in modernity. The specific application invoked in this Article concerns the issue of women being called to read publicly from the Torah, a subject of serious academic debate among observant Jews. The analysis demonstrates that the virtually …

Introduction: Noncitizen Participation In The American Polity, Angela M. Banks

William & Mary Bill of Rights Journal

No abstract provided.

Traditional Knowledge, Cultural Expression, And The Siren’S Call Of Property, Justin Hughes

San Diego Law Review

Discussions on international legal norms for the protection of TK/TCE have, in their contemporary form, been ongoing since the late 1990s. In that time, our understanding of key issues for a workable system—subject matter, beneficiaries, rights, or protections—have advanced little, if at all. Indeed, as Michael Brown has observed, “vexing questions of origins and boundaries . . . are commonly swept under the rug in public discussions.” Yet even if all those questions were settled, we also need a clear justification or justifications for a new form of intellectual property on the world stage.

Judicial Innovation And Sexual Harassment Doctrine In The U.S. Court Of Appeals., Laura P. Moyer, Holley Takersley

Faculty and Staff Scholarship

The determination that sexual harassment constituted “discrimination based on sex” under Title VII was first made by the lower federal courts, not Congress. Drawing from the literature on policy diffusion, this article examines the adoption of hostile work environment standards across the U.S. Courts of Appeals in the absence of controlling Supreme Court precedent. The results bolster recent findings about the influence of female judges on their male colleagues and suggest that in addition to siding with female plaintiffs, female judges also helped to shape legal rules that promoted gender equality in the workplace.

The Duke Project On Custom And Law , Curtis A. Bradley, Mitu Gulati

Duke Law Journal

No abstract provided.

Norms And Law: Putting The Horse Before The Cart, Barak D. Richman

Duke Law Journal

Law and society scholars have long been fascinated with the interplay of formal legal and informal extralegal procedures. Unfortunately, the fascination has been accompanied by imprecision, and scholars have conceptually conflated two very different mechanisms that extralegally resolve disputes. One set of mechanisms might be described as the "shadow of the law," made famous by seminal works by Professors Stewart Macaulay and Marc Galanter, in which social coercion and custom have force because formal legal rights are credible and reasonably defined. The other set of mechanisms, recently explored by economic historians and legal institutionalists, might be described as "order without …

Custom And The Rule Of Law In The Administration Of The Income Tax, Lawrence Zelenak

Duke Law Journal

From the early years of the federal income tax to the present, the Internal Revenue Service (IRS) has engaged in what might be termed "customary deviations" from the dictates of the Internal Revenue Code, always in a taxpayer-favorable direction. A prominent current example is the IRS's "don't ask, don't tell" policy with respect to employee-retained frequent flier miles; in a 2002 announcement (which, as of 2012, is still in force), the IRS indicated that such miles were technically within the scope of the statutory definition of gross income, but that the IRS had no intention of enforcing the law. This …

Artful Good Faith: An Essay On Law, Custom, And Intermediaries In Art Markets, Deborah A. Demott

Duke Law Journal

This Essay explores relationships between custom and law in the United States in the context of markets for art objects. The Essay argues that these relationships are dynamic, not static, and that law can prompt evolution in customary practice well beyond the law's formal requirements. Understanding these relationships in the context of art markets requires due attention to two components distinctive to art markets: the role of dealers and auction houses as transactional intermediaries as well as the role of museums as end-collectors. In the last decade, the business practices of major transactional intermediaries reflected a significant shift in customary …

Custom, Contract, And Kidney Exchange , Kieran Healy, Kimberly D. Krawiec

Duke Law Journal

In this Essay, we examine a case in which the organizational and logistical demands of a novel form of organ exchange (the nonsimultaneous, extended, altruistic donor (NEAD) chain) do not map cleanly onto standard cultural schemas for either market or gift exchange, resulting in sociological ambiguity and legal uncertainty. In some ways, a NEAD chain resembles a form of generalized exchange, an ancient and widespread instance of the norm of reciprocity that can be thought of simply as the obligation to "pay it forward" rather than the obligation to reciprocate directly with the original giver. At the same time, a …

Tradition As Past And Present In Substantive Due Process Analysis, Katharine T. Bartlett

Duke Law Journal

Tradition is often understood as an inheritance from the past that has no connection to the present. Justices of the U.S. Supreme Court on both ends of the ideological spectrum work from this understanding, particularly in analyzing cases under the substantive due process clause. Some conservative Justices say that substantive due process protects only rights that were firmly established when the Constitution was ratified. In contrast, some liberal Justices dismiss tradition as being too stagnant and oppressive to serve as a limit on substantive due process rights, relying instead on contemporary norms and reason. Both of these approaches share an …