Law Commons^™

Every English Learner Succeeds: The Need For Uniform Entry And Exit Requirements, Ana A. Núñez Cárdenas

Brooklyn Law Review

While the number of English Learners (ELs) continues to significantly grow in the United States, the focus on their education is still severely lacking. During the No Child Left Behind (NCLB) era, the federal role in education greatly expanded, holding states accountable for their practices and ensuring academic proficiency. Even with the federal government’s expanded role ELs’ academic achievements did not improve and were further frustrated under the NCLB. In 2005, the Every Student Succeeds Act (ESSA) was introduced to ameliorate the harmful stain the NCLB left on education. Under the ESSA, the states regained both their autonomy and flexibility …

Fleeing The Rat’S Nest: Title Vii Jurisprudence After Ortiz V. Werner Enterprises, Inc., Zachary J. Strongin

Brooklyn Law Review

In 2016, the Seventh Circuit issued an opinion that may be a harbinger for an important shift in the federal judiciary’s long-standing employment discrimination jurisprudence. In Ortiz v. Werner Enterprises, Judge Easterbrook reiterated the frustration with the existing “rat’s nest” of tests and standards used in Title VII discrimination and retaliation claims. The note contains two overarching arguments. First, the Supreme Court’s employment discrimination and “rat’s nest” of tests and standards has led to an untenable situation in which federal district courts apply different standards at different stages of litigations. This in turn has caused confusion amongst the various federal …

Constrained Regulatory Exit In Energy Law, Jim Rossi

Vanderbilt Law School Faculty Publications

In recent years, the federal government’s efforts to open up competitive electricity markets have transformed how we think about the regulation of energy. In many respects, the Federal Energy Regulatory Commission’s (FERC) broad “deregulatory” efforts, which commenced in the 1990s, might appear to be a case of paradigmatic regulatory exit as defined by J.B. Ruhl and Jim Salzman. But our case study of FERC’s restructuring of wholesale electricity markets reveals some important institutional features that make exit in federalism contexts, and under federal statutory duties, a rich and difficult problem. In the context of energy, exit from one regulatory sphere …

The Perception Of Community Oriented Policing From A Law Enforcement Organization's Perspective, James Wyatt Roberts

Doctor of Education (Ed.D)

Community-oriented policing surfaced in the 1980s as a new philosophy in policing. Despite the widespread community support for community policing, the perceptions of this philosophy from a law enforcement organization’s perspective remain unclear. This quantitative, non-experimental research study utilized a survey method to address seven research questions. One large law enforcement organization (sworn and civilian members) in Central Florida was invited to complete a survey to assist in better understanding the role of community-oriented policing and its impact on bridging the gap between law enforcement and the community. This study seeks to better understand a law enforcement organization’s perception of …

Contested Visions: The Value Of Systems Theory For Corporate Law, Tamara Belinfanti, Lynn A. Stout

Articles & Chapters

Despite the dominant role corporations play in our economy, culture, and politics, the nature and purpose of corporations remains hotly contested. This conflict was brought to the fore in the recent Supreme Court opinions in Citizens United and Hobby Lobby. Although the prevailing narrative for the past quarter-century has been that corporations “belong” to shareholders and should pursue “shareholder value,” support for this approach, which has been justified as essential for managerial accountability, is eroding. It persists today primarily in the form of the argument that corporations should seek “long-term” shareholder value. Yet, as this Article shows, when shareholder value …

Moral Rights: The Anti-Rebellion Graffiti Heritage Of 5pointz, Richard H. Chused

Articles & Chapters

No abstract provided.

International Human Rights Law: An Unexpected Threat To Peace, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

It is a great honor to deliver this lecture in honor of the late Dean Robert F. Boden. I am grateful to all of you for attending. My topic tonight is international law and peace among nations. It may seem a poor fit for a lecture honoring Dean Boden. I did not know him, but I have read that Dean Boden was passionately dedicated to teaching law students about the actual day-to-day practice of law. He believed that law schools should be focused on that sort of professional training—not on policy questions or preparing students to be “architects of society,” …

Insurance Coverage Policies For Pharmacogenomic And Multi-Gene Testing For Cancer, Ellen Wright Clayton, Christine Y. Lu, Stephanie Loomer, Et Al.

Vanderbilt Law School Faculty Publications

Abstract: Insurance coverage policies are a major determinant of patient access to genomic tests. The objective of this study was to examine differences in coverage policies for guideline-recommended pharmacogenomic tests that inform cancer treatment. We analyzed coverage policies from eight Medicare contractors and 10 private payers for 23 biomarkers (e.g., HER2 and EGFR) and multi-gene tests. We extracted policy coverage and criteria, prior authorization requirements, and an evidence basis for coverage. We reviewed professional society guidelines and their recommendations for use of pharmacogenomic tests. Coverage for KRAS, EGFR, and BRAF tests were common across Medicare contractors and private payers, but …

Navigating The Research-Clinical Interface In Genomic Medicine: Analysis From The Cser Consortium, Ellen Wright Clayton, Susan M. Wolf, Laura M. Amendola, Et Al.

Vanderbilt Law School Faculty Publications

Purpose: The Clinical Sequencing Exploratory Research (CSER) Consortium encompasses nine National Institutes of Health– funded U-award projects investigating translation of genomic sequencing into clinical care. Previous literature has distinguished norms and rules governing research versus clinical care. This is the first study to explore how genomics investigators describe and navigate the research–clinical interface. Methods: A CSER working group developed a 22-item survey. All nine U-award projects participated. Descriptive data were tabulated and qualitative analysis of text responses identified themes and characterizations of the research–clinical interface. Results: Survey responses described how studies approached the research–clinical interface, including in consent practices, recording …

Forensics, Chicken Soup, And Meteorites: A Tribute To Michael Risinger, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Michael Risinger's scholarship has had a profound impact on our field. And while his work has run the gamut in evidence law, I think it is clear that Michael's true love has always been expert evidence, and more specifically, forensics. So let me take a moment to revisit "an oldie but a goodie": his 1989 article entitled Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification "Expertise," published in the University of Pennsylvania Law Review, and co-authored with Mark Denbeaux and Michael Saks.' For those of you who have not read the article, you should. …

Buchanan And The Right To Acquire Property, James W. Ely Jr.

Vanderbilt Law School Faculty Publications

This article examines the impact of the Supreme Court decision in Buchanan v. Warley (1917) invalidating residential segregation laws as a deprivation of property rights without due process of law. The decision was premised on a strong affirmation of the right to acquire property. The article explores the historical background and contemporary significance of the right to acquire property. It notes that early state constitutions expressly recognized such a right. It points out that the right to acquire found practical expression in hostility to state-conferred monopoly and in the right to follow common occupations, two doctrines which evolved under the …

Is Groton The Next "Evenwel"?, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In Evenwel v Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of ``one person- one vote'' (OPOV). It was thought that there was little prospect of resolving this question soon as no appropriate instances of such behavior was known. That belief was mistaken. In this note I report on the Town of Groton, Connecticut which uses registered voting data to apportion seats in its Representative Town Meeting, and has done so since its incorporation in 1957. …

The Future Of The Federal Common Law Of Foreign Relations, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficulties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reliance upon presidential or congressional action, or by standard constitutional …

Keynote: Motivating Private Climate Governance: The Role Of The Efficiency Gap, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

In response to the shrinking federal role in environmental protection, many policy advocates have focused on the role of states and cities, but this symposium focuses on another important source of sustainability initiatives: the private sector, including corporations, households, civic and cultural organizations, religious organizations, private hospitals, colleges and universities, and other organizations. States, cities, and local governments are increasingly important, but the limited geographic reach of subnational governments and widespread concerns about the size and intrusiveness of the public sector constrain their ability to address many environmental problems. Private governance initiatives offer an opportunity to bypass concerns about big …

Is It Time For A Universal Genetic Forensic Database?, J. W. Hazel, Ellen Wright Clayton, B. A. Malin, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The ethical objections to mandating forensic profiling of newborns and/or compelling every citizen or visitor to submit to a buccal swab or to spit in a cup when they have done nothing wrong are not trivial. But newborns are already subject to compulsory medical screening, and people coming from foreign countries to the United States already submit to fingerprinting. It is also worth noting that concerns about coercion or invasions of privacy did not give pause to legislatures (or, for that matter, even the European Court) when authorizing compelled DNA sampling from arrestees, who should not forfeit genetic privacy interests …

Democracy And Dysfunction: Rural Electric Cooperatives And The Surprising Persistence Of The Separation Of Ownership And Control, Randall S. Thomas, Debra C. Jeter, Harwell Wells

Vanderbilt Law School Faculty Publications

Since the 1930s, corporate law scholarship has focused narrowly on the public corporation and the problem of the separation of ownership and control-a problem many now believe has been mitigated or even solved. With rare exceptions, scholars have paid far less heed to other business forms that still play important roles in the American economy. In this Article, we examine a significant and almost completely overlooked business form, the Rural Electric Cooperative (REC). RECs were founded in a moment of optimism during the New Deal. As with other cooperatives, their organizational rules differed sharply from those of for-profit corporations. They …

A Blueprint For A New American Trade Policy, Timothy Meyer, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In recent years, it has become clear that American trade policy needs to change. For decades, U.S. policy has reflected the implicit assumption that trade liberalization is beneficial for everyone, with few distributional downsides over time. But this assumption hasn’t been borne out. Instead, decades of trade liberalization have led to a backlash that resulted in both 2016 presidential nominees opposing the Obama Administration’s proposed Trans Pacific Partnership (TPP). And since 2017, President Donald Trump has begun a trade war with China; raised tariffs on the grounds of protecting national security; renegotiated NAFTA, though on terms that do not obviously …

Decoding Guilty Minds: How Jurors Attribute Knowledge And Guilt, Owen D. Jones, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie, Morris B. Hoffman, Kenneth W. Simons

Vanderbilt Law School Faculty Publications

A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what a person was thinking months or years earlier at the time of the alleged offense, either about the results of his conduct or about some elemental fact (such as whether the briefcase he is carrying contains drugs). Despite the central importance of this task in the administration of …

The Money Problem: A Rejoinder, Morgan Ricks

Vanderbilt Law School Faculty Publications

Let me begin by thanking Yuri Biondi and Accounting, Economics and Law: A Convivium for hosting this book review symposium. It is a privilege to have my book reviewed by this distinguished roster of experts. Since the book's publication I have had some time to reflect on its strengths and weaknesses. Unsurprisingly, the reviewers in this issue have identified a number of the book's more glaring shortcomings. But it relieves me to say that I don't think the book's key arguments have (yet) sustained any mortal wounds, even if solid blows have been landed.

The basic thesis of The Money …

Algorithmic Risk Assessments And The Double-Edged Sword Of Youth, Christopher Slobogin, Megan T. Stevenson

Vanderbilt Law School Faculty Publications

Risk assessment algorithms—statistical formulas that predict the likelihood a person will commit crime in the future—are used across the country to help make life-altering decisions in the criminal process, including setting bail, determining sentences, selecting probation conditions, and deciding parole. Yet many of these instruments are “black-box” tools. The algorithms they use are secret, both to the sentencing authorities who rely on them and to the offender whose life is affected. The opaque nature of these tools raises numerous legal and ethical concerns. In this paper we argue that risk assessment algorithms obfuscate how certain factors, usually considered mitigating by …

The Silence Penalty, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant's prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence. This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments-including the results of a new 400-person mock juror simulation conducted for this Article-and data from real trials. It concludes that the penalty defendants suffer when they refuse …

How And Why Is The American Punishment System "Exceptional"?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Anyone interested in American criminal justice has to wonder why we have so many more people in prison—in absolute as well as relative terms—than the western half of the European continent, the part of the world most readily comparable to us. This book, consisting of eleven chapters by eminent criminal law scholars, criminologists and political scientists, provides both a detailed look at how U.S. punishment is different and an insightful analysis of why that might be so. While many chapters in the book describe previously declared positions of the authors, there is also much that is new in the book, …

Is It A Dragon? No, It's A Salamander. The Supreme Court's Effort To Slay The Partisan Gerrymander, Tim Harris

Honors Theses

The Supreme Court sits on the precipice of undertaking major action to limit the strength and scope of partisan gerrymandering. The Court has never struck down a partisan gerrymander. Although the Court appears to possess the authority to invalidate an unconstitutionally discriminatory districting plan, it has never decided on what indicates unconstitutional discrimination in districting. It has never settled on a workable standard to judge whether or not a specific partisan gerrymander is unconstitutional. In November 2016, a lower court in Wisconsin struck down a partisan gerrymander and put forward what it claims is a workable standard to judge the …

Restoring Trade's Social Contract, Timothy Meyer, Frank J. Garcia

Vanderbilt Law School Faculty Publications

As we write, the United States, Canada, and Mexico are renegotiating the North American Free Trade Agreement (NAFTA). These talks—and their possible failure—represent the biggest shift in U.S. economic policy in a generation. Since NAFTA came into force in 1994, it has transformed the North American economy. NAFTA has made possible continent-wide supply chains, in industries like the auto sector, that have reduced costs and allowed American automakers to remain competitive; it has opened markets for American agriculture; it has greatly increased the standard of living in Mexico; and it has reduced consumer prices across the continent. Despite these gains, …

Free Trade, Fair Trade, And Selective Enforcement, Timothy Meyer

Vanderbilt Law School Faculty Publications

The 2016 presidential election was one of the most divisive in recent memory, but it produced a surprising bipartisan consensus. Donald Trump, Hillary Clinton, and Bernie Sanders all agreed that U.S. trade agreements should be, but are not, “fair.” Although only achieving broad consensus recently, the critique that U.S. trade agreements are unfair has been around for decades. Since 1992, much of this fairness critique has focused on ensuring that trade liberalization does not undermine non-commercial values, such as environmental protection and labor conditions. Beginning with the negotiation and ratification of the North American Free Trade Agreement (NAFTA) in the …

Detection And Correction Of Case-Publication Bias, Edward K. Cheng

Vanderbilt Law School Faculty Publications

The article proceeds as follows. Section 2 motivates the study by de scribing the reasons why case publication bias may be especially acute in the evidentiary context. Section 3 discusses methods for detecting and correcting publication bias. It surveys existing approaches, introduces the intuition behind MSE, and then develops a series of detection models. Section 4 turns to applications. To validate the method, I first apply the proposed model to simulated data sets in which I control the level of publication bias present. I then apply the model to a newly compiled data set of evidentiary rulings dealing with false …

The Role Of Skills Instruction In Legal Education, Eduardo M. PeñAlver

Cornell Law Faculty Publications

No abstract provided.

Recent Developments: Johnson V. State, Calvin Riorda

University of Baltimore Law Forum

No abstract provided.

Debtor Malice, Jonathon S. Byington

Faculty Law Review Articles

This Article is about what malice should mean under bankruptcy law. Malice is used in other areas of law as a sorting function—to identify wrongful acts that are especially grievous. For example, criminal law uses malice to separate murder from manslaughter. The Bankruptcy Code uses malice to perform a similar sorting function. Bankruptcy law discharges or forgives certain kinds of debts. It separates debts that society is willing to forgive from debts that are not forgivable. One way it accomplishes this sorting function is through Section 523(a)(6) of the Bankruptcy Code, which excepts from discharge debts for “willful and malicious …

Re-Examining The Law And Economics Of The Business Judgment Rule: Notes For Its Implementation In Non-Us Jurisdictions, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

The business judgment rule, as it has been traditionally understood, seems to be based on three underlying assumptions that make this rule economically desirable. First, directors are subject to a credible threat of being sued for a breach of the duty of care. Second, the primary role of the corporation is to maximise shareholder value. Third, shareholders want the directors to pursue those investment projects with the highest net present value regardless of their volatility. This article challenges these assumptions and argues that the business judgment rule might not be desirable in some jurisdictions outside the United States and even …