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Fifty Years Later And Miranda Still Leaves Us With Questions, Nicole Langston, Bernice B. Donald Oct 2017

Fifty Years Later And Miranda Still Leaves Us With Questions, Nicole Langston, Bernice B. Donald

Vanderbilt Law School Faculty Publications

This affords the suspect safeguards to make an informed choice between speech and silence and prevents involuntary statements. Although Miranda warnings are seemingly standard, the Miranda decision did not come without criticism.' Now, on the fiftieth anniversary of the Supreme Court's decision, the topic still garners intense debate.' Even after all of these years, there are still critics who do not support Miranda warnings, and now they rely on long-term studies about the effectiveness of Miranda warnings to support their positions. Yet, even with these new studies, there still remains some ambiguity about the effectiveness of Miranda rights concerning whether …


Reflection: How Multiracial Lives Matter, Lauren Sudeall Jun 2017

Reflection: How Multiracial Lives Matter, Lauren Sudeall

Vanderbilt Law School Faculty Publications

Race plays an important organizing function in society, and one over which we have little control as individuals; this can be difficult to reconcile with the self-determination many multiracial individuals possess to control their own racial identity and how it is perceived by others. While some are dismissive of that premise, instead favoring a racial solidarity approach that minimizes the relevance of subcategories, I have contended that it is important to allow multiracial individuals to define their own identity. This is a sentiment that has been echoed by Justice Kennedy's language in several recent opinions discussing racial identity (if not …


Proportionality Skepticism In A Red State, Lauren Sudeall May 2017

Proportionality Skepticism In A Red State, Lauren Sudeall

Vanderbilt Law School Faculty Publications

As someone who lives in a red state and has practiced capital defense in Georgia and Alabama, my view for some time has been that the death penalty is not going anywhere any time soon. And while the dominant message from legal experts and commentators in recent years has been that the death penalty is on the decline,' the results of this past election might suggest otherwise. The three referenda regarding capital punishment on the 2016 ballot - in California, Nebraska, and Oklahoma - were all resolved in favor of the death penalty. These votes could be taken to signal …


Manipulation Of Suspects And Unrecorded Questioning, Christopher Slobogin May 2017

Manipulation Of Suspects And Unrecorded Questioning, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Fifty years after Miranda, courts still do not have clear guidance on the types oftechniques police may use during interrogation. While first-generation tactics (a.k.a. the third degree) are banned, second-generation tactics such as those found in the famous Reid Manual continue to be used by interrogators. The Supreme Court has sent only vague signals as to which of these second- generation techniques, if any, are impermissible, and has made no mention of newly developed third-generation tactics that are much less reliant on manipulation. This Article divides second-generation techniques into four categories: impersonation, rationalization, fabrication, and negotiation. After concluding, based on …


Keeping Gideon's Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Lauren Sudeall, Brandon Buskey Apr 2017

Keeping Gideon's Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Lauren Sudeall, Brandon Buskey

Vanderbilt Law School Faculty Publications

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel.

The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court's right to counsel jurisprudence in this area has remained stagnant. Critics of the …


An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall Apr 2017

An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall

Vanderbilt Law School Faculty Publications

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants to prove …


An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt, Lauren Sudeall Apr 2017

An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt, Lauren Sudeall

Vanderbilt Law School Faculty Publications

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants to prove …


Predicting The Knowledge: Recklessness Distinction In The Human Brain, Owen D. Jones, Iris Vilares, Michael J. Wesley, Woo-Young Ahn, Et Al. Mar 2017

Predicting The Knowledge: Recklessness Distinction In The Human Brain, Owen D. Jones, Iris Vilares, Michael J. Wesley, Woo-Young Ahn, Et Al.

Vanderbilt Law School Faculty Publications

Criminal convictions require proof that a prohibited act was performed in a statutorily specified mental state. Different legal consequences, including greater punishments, are mandated for those who act in a state of knowledge, compared with a state of recklessness. Existing research, however, suggests people have trouble classifying defendants as knowing, rather than reckless, even when instructed on the relevant legal criteria.

We used a machine-learning technique on brain imaging data to predict, with high accuracy, which mental state our participants were in. This predictive ability depended on both the magnitude of the risks and the amount of information about those …


How Should Justice Policy Treat Young Offenders?, Owen D. Jones, B. J. Casey, Richard J. Bonnie, Et Al . Feb 2017

How Should Justice Policy Treat Young Offenders?, Owen D. Jones, B. J. Casey, Richard J. Bonnie, Et Al .

Vanderbilt Law School Faculty Publications

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account?

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, …


The New Politics Of New Property And The Takings Clause, Christopher Serkin Jan 2017

The New Politics Of New Property And The Takings Clause, Christopher Serkin

Vanderbilt Law School Faculty Publications

This Essay offers a broad gloss on the traditional politics of property protection and then catalogues a number of ways in which those politics have been changing. In many cases, the account is of fragmentation and fracture as once stable commitments have become much more contingent and fact dependent.' Admittedly, this characterization paints with an extremely broad brush. That is both its contribution and its weakness. This short Essay deliberately simplifies the characterization of preferences across the political spectrum. Much more nuanced definitions would better track the complexity of the underlying issues. Judges and scholars discussed below might also object …


Saving The Political Consensus In Favor Of Free Trade, Timothy Meyer Jan 2017

Saving The Political Consensus In Favor Of Free Trade, Timothy Meyer

Vanderbilt Law School Faculty Publications

2016 is the year that the political consensus in favor of liberalized international trade collapsed. Across the world, voters’ belief that international trade agreements lead to economic inequality threatens to derail ratification of the next generation of trade agreements and undo the substantial gains made under existing arrangements. The United States elected Donald Trump president on a platform of rolling back or renegotiating trade agreements. President Trump has moved to fulfill that promise immediately upon taking office by “unsigning” the Trans-Pacific Partnership (TPP), the most recent major effort to liberalize global trading rules, and initiating efforts to renegotiate the North …


International Law In The Post-Human Rights Era, Ingrid Wuerth Jan 2017

International Law In The Post-Human Rights Era, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

International law is in a period of transition. After World War II, but especially since the 1980s, human rights expanded to almost every corner of international law. In doing so, they changed core features of international law itself, including the definition of sovereignty and the sources of international legal rules. But what might be termed the golden-age of international human rights law is over, at least for now. Whether measured in terms of the increasing number of authoritarian governments, the decline in international human rights enforcement architecture such as the Responsibility to Protect and the Alien Tort Statute, the growing …


The Constitutional Ratchet Effect, Kevin M. Stack Jan 2017

The Constitutional Ratchet Effect, Kevin M. Stack

Vanderbilt Law School Faculty Publications

No abstract provided.


Intersectional Complications Of Healthism, Jennifer B. Shinall Jan 2017

Intersectional Complications Of Healthism, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

For Americans in the labor market with health conditions that fall outside the scope of the ADA, the rehabilitation Act, and GINA, antihealthism legislation, like the kind proposed by Roberts and Leonard, 9would unquestionably serve as a critical first step in increasing their legal protections in the workplace. Moreover, to the extent that such legislation would also operate outside the workplace, it could expand legal protections even for individuals who presently enjoy coverage by disability and genetic discrimination laws solely inside the workplace. Yet, as this article has argued, simple healthism-discriminatory animus based solely on health-may be surprisingly rare. Existing …


Frontiers Of Sex Discrimination Law, Jessica A. Clarke Jan 2017

Frontiers Of Sex Discrimination Law, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

A short time ago, the argument that sex discrimination includes discrimination on the basis of sexual orientation was considered a risky litigation tactic with little hope of success. One reason was the fear that extending sex discrimination law so far would upset all sex classifications, even those on restroom doors. But the landscape has shifted. The EEOC now takes the position that sex discrimination includes all forms of discrimination based on sexual orientation and gender identity. Administrative agencies interpret federal law to require that workers and students be allowed to use restrooms consistent with their gender identities. Some federal courts …


Stranded Costs And Grid Decarbonization, Jim Rossi, Emily Hammond Jan 2017

Stranded Costs And Grid Decarbonization, Jim Rossi, Emily Hammond

Vanderbilt Law School Faculty Publications

Over the past half century, energy law has endured many stranded cost experiments, each helping firms and customers adjust to a new normal. However, these past experiments have contributed to a myopic regulatory approach to past stranded cost recovery by: (1) endorsing a preference for addressing all stranded costs only after energy resource investment decisions have been made; and (2) fixating on the firm’s financial costs and protection of investors, rather than on the broader impacts of each on the energy system.

The current transition to decarbonization is already giving rise to stranded cost claims related to existing energy assets …


Reconstituting The Federalism Battle In Energy Transportation, Jim Rossi, Alexandra B. Klass Jan 2017

Reconstituting The Federalism Battle In Energy Transportation, Jim Rossi, Alexandra B. Klass

Vanderbilt Law School Faculty Publications

This article explores the growing federalism tensions in efforts to expand the nation’s energy transportation infrastructure — the electric transmission lines, natural gas pipelines, natural gas import and export terminals and related infrastructure that power the U.S. electricity and transportation systems. It uses two illustrations — one involving an interstate electric transmission line (subject to state jurisdiction) and one involving and an interstate natural gas pipeline (subject to federal jurisdiction) — to highlight how the clear jurisdictional lines between federal and state authority over these projects created decades ago is no longer adequate for today’s energy needs. We believe that …


Refugee Reception And Perception: Us Detention Camps And German Welcome Centers, Karla M. Mckanders, Valeria Gomez Jan 2017

Refugee Reception And Perception: Us Detention Camps And German Welcome Centers, Karla M. Mckanders, Valeria Gomez

Vanderbilt Law School Faculty Publications

The reception of refugees and asylum seekers has emerged as one of the most critical contemporary global issues. In 2015, the world experienced the most forced migrants since World War II. This essay compares the treatment of asylum seekers at reception in United States and Germany through each countries’ freedom and restriction of movement laws. This comparative analysis is based on Professor Karla McKanders’ December 2015 exploratory trip to Germany to learn more about the processing refugees in the midst of Germany accepting unprecedented numbers of refugees; and attorney Valeria Gomez’s December 2015 volunteer experience in the South Texas Family …


Organizational Law As Commitment Device, Morgan Ricks Jan 2017

Organizational Law As Commitment Device, Morgan Ricks

Vanderbilt Law School Faculty Publications

What is the essential role of the law of enterprise organization? The dominant view among business law scholars today is that organizational law the law of partnerships, corporations, private trusts, and their variants-serves primarily to structure relations between business owners, on the one hand, and business creditors, on the other. Under this "asset partitioning" theory, organizational law's main purpose is to shield business assets from claims of creditors of the business's owners, thereby giving business creditors a structurally senior claim on business assets. By relieving business creditors of the need to inspect the creditworthiness of business owners, the theory goes, …


Penn Central Take Two, Christopher Serkin Jan 2017

Penn Central Take Two, Christopher Serkin

Vanderbilt Law School Faculty Publications

Penn Central v. New York City is the most important regulatory takings case of all time. There, the Supreme Court upheld the historic preservation of Grand Central Terminal in part because the City offset the burden of the landmarking with a valuable new property interest—a transferable development right (TDR)—that could be sold to neighboring property. Extraordinarily, 1.2 million square feet of those very same TDRs, still unused for over forty years, are the subject of newly resolved takings litigation. According to the complaint, the TDRs that saved Grand Central were themselves taken by the government, which allegedly wiped out their …


Ceo Side Payments In Mergers And Acquisitions, Brian Broughman Jan 2017

Ceo Side Payments In Mergers And Acquisitions, Brian Broughman

Vanderbilt Law School Faculty Publications

In addition to golden parachutes, CEOs often negotiate for personal side payments in connection with the sale of their firms. Side payments differ from golden parachutes in that they are negotiated ex post in connection with a specific acquisition proposal, whereas golden parachutes are part of the executive’s employment agreement negotiated when she is hired. While side payments may benefit shareholders by countering managerial resistance to an efficient sale, they can also be used to redistribute merger proceeds to management. This Article highlights an overlooked distinction between pre-merger golden parachutes and merger side payments. Similar to a legislative rider attached …


The Free Exercise Of Religious Identity, Lauren Sudeall Jan 2017

The Free Exercise Of Religious Identity, Lauren Sudeall

Vanderbilt Law School Faculty Publications

In recent years, a particular strain of argument has arisen in response to decisions by courts or the government to extend certain rights to others. Grounded in religious freedom, these arguments suggest that individuals have a right to operate businesses or conduct their professional roles in a manner that conforms to their religious identity. For example, as courts and legislatures have extended the right to marry to same-sex couples, court clerks have refused to issue marriage certificates to such couples, claiming that to do so would violate their religious beliefs. Similarly, corporations have refused, for reasons grounded in religious identity, …


Legal And Institutional Foundations Of Adaptive Environmental Governance, J.B. Ruhl, Daniel A. Decaro, Brian C. Chaffin, Edella Schlager Jan 2017

Legal And Institutional Foundations Of Adaptive Environmental Governance, J.B. Ruhl, Daniel A. Decaro, Brian C. Chaffin, Edella Schlager

Vanderbilt Law School Faculty Publications

Legal and institutional structures fundamentally shape opportunities for adaptive governance of environmental resources at multiple ecological and societal scales. Properties of adaptive governance are widely studied. However, these studies have not resulted in consolidated frameworks for legal and institutional design, limiting our ability to promote adaptation and social-ecological resilience.We develop an overarching framework that describes the current and potential role of law in enabling adaptation. We apply this framework to different social-ecological settings, centers of activity, and scales, illustrating the multidimensional and polycentric nature of water governance. Adaptation typically emerges organically among multiple centers of agency and authority in society …


Scalia In The Casebooks, Brian T. Fitzpatrick, Paulson K. Varghese Jan 2017

Scalia In The Casebooks, Brian T. Fitzpatrick, Paulson K. Varghese

Vanderbilt Law School Faculty Publications

In the time since Justice Antonin Scalia’s untimely death, much has been written about what his influence has been and what his influence will be. In this Essay, we try to quantify Scalia’s influence in law school constitutional-law curricula by studying how often his ideas are explored in constitutional-law casebooks. In particular, relative to other justices, we look at how often Scalia’s opinions (for the Court, or his separate opinions) are excerpted in the principal cases and how often he is referred to by name in the notes preceding and following the principal cases. We find that Scalia is at …


Risky Business? The Trump Administration And The State-Licensed Marijuana Industry, Robert A. Mikos Jan 2017

Risky Business? The Trump Administration And The State-Licensed Marijuana Industry, Robert A. Mikos

Vanderbilt Law School Faculty Publications

While it is clear that the new attorney general opposes state marijuana reforms, it is less clear what he will or even could do to block those reforms or to curb the industry that has flourished under them. The popularity of reforms, limits on federal resources, and legal doctrines like the anticommandeering rule all limit the DOJ’s ability to shut down the state-licensed marijuana industry. While Jeff Sessions may never embrace reforms, he may choose to pursue other tactics, like anti-marijuana media campaigns, to curb the use of marijuana and the harms caused thereby. Only time will tell, of course, …


Making Preemption Less Palatable: State Poison Pill Legislation, Robert A. Mikos Jan 2017

Making Preemption Less Palatable: State Poison Pill Legislation, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Congressional preemption constitutes perhaps the single greatest threat to state power and to the values served thereby. Given the structural incentives now in place, there is little to deter Congress from preempting state law, even when the state interests Congress displaces far exceed its own. The threat of preemption has raised alarms across the political spectrum, but no one has yet devised a satisfactory way to balance state and federal interests in preemption disputes. This Article devises a novel solution: state poison pill legislation. Borrowing a page from corporate law, poison pill legislation would enable the states to make preemption …


Protected Class Gatekeeping, Jessica A. Clarke Jan 2017

Protected Class Gatekeeping, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Courts routinely begin their analyses of discrimination claims with the question of whether the plaintiff has proven he or she is a “member of the protected class.” Although this refrain may sometimes be an empty formality, it has taken on real bite in a significant number of cases. For example, one court dismissed a claim by a man who was harassed with anti-Mexican slurs because he was of African American rather than Mexican ancestry. Other courts have dismissed sex discrimination claims by LGBT plaintiffs on the ground that LGBT status is not a protected class. Yet other courts have dismissed …


Shareholder Voting In Proxy Contests For Corporate Control, Uncontested Director Elections And Management Proposals, Randall Thomas, Patrick C. Tricker Jan 2017

Shareholder Voting In Proxy Contests For Corporate Control, Uncontested Director Elections And Management Proposals, Randall Thomas, Patrick C. Tricker

Vanderbilt Law School Faculty Publications

This paper surveys the empirical literature on shareholder voting, specifically on votes related to contested and uncontested director elections and on management proposals. While much of current theory depicts shareholder votes as an ineffective control on the boards decision making, the empirical literature paints a more nuanced picture. When a proxy contest breaks out, shareholders wield immense influence. These contests tend to have significant benefits for the corporation, including facilitating a change in management, reducing unnecessary liquidity, and prompting the payout of dividends. Even in uncontested director elections, shareholders decisions to vote for or withhold their vote reflect the company's …


Judicial Politics And Decisionmaking: A New Approach, Chris Guthrie, Andrew J. Wistrich, Jeffrey J. Rachlinski Jan 2017

Judicial Politics And Decisionmaking: A New Approach, Chris Guthrie, Andrew J. Wistrich, Jeffrey J. Rachlinski

Vanderbilt Law School Faculty Publications

In twenty-five different experiments conducted on over 2,200 judges, we assessed whether judges' political ideology influences their resolution of hypothetical cases. Generally, we found that the political ideology of the judge matters, but only very little. Across a range of bankruptcy, criminal, and civil cases, we found that the aggregate effect of political ideology is either nonexistent or amounts to roughly onequarter of a standard deviation. Overall, the results of our experiments suggest that judges are not "politicians in robes."


State Criminal Appeals Revealed, Nancy J. King, Michael Heise, Nicole A. Heise Jan 2017

State Criminal Appeals Revealed, Nancy J. King, Michael Heise, Nicole A. Heise

Vanderbilt Law School Faculty Publications

Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments. We focus on two subpools of state …