Jurisprudence Commons^™

The Quasi-Class Action Method Of Managing Multi-District Litigations: Problems And A Proposal, Charles Silver, Geoffrey P. Miller

Vanderbilt Law Review

This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys' compensation, (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees, and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily …

A Foothold For Real Democracy In Eastern Europe, Elizabeth R. Sheyn

Vanderbilt Journal of Transnational Law

Ukraine has never had a criminal or civil jury trial despite the fact that the right to a criminal jury trial is guaranteed by Ukraine's Constitution. The lack of jury trials is one of the factors likely contributing to the corruption and deficiencies inherent in Ukraine's judicial system. This Article argues that Ukraine can and should make room for juries in its judicial system and proposes a framework for both criminal and civil jury trials. Although the use of juries will not remedy all of the problems plaguing Ukraine, it could bring the country closer to achieving a truly democratic …

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 …

Remaking The United States Supreme Court In The Courts' Of Appeals Image, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decision making, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decision making capacity but also improve the Court's composition, competence, and functioning.

Emotional Common Sense As Constitutional Law, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In 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 the emotions. A species of common sense, it seems obvious and universal to …

Mr. Sunstein's Neighborhood: Won't You Be Our Co-Author?, Tracey E. George, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In Six Degrees of Cass Sunstein: Collaboration Networks in Legal Scholarship (11 Green Bag 2d 19 (2007)) we began the study of the collaboration network in legal academia. We concluded that the central figure in the network was Professor Cass Sunstein of Harvard Law School and proceeded to catalogue all of his myriad co-authors (so-called Sunstein 1's) and their co-authors (Sunstein 2's). In this small note we update that catalogue as of August 2008 and take the opportunity to reflect on this project and its methodology.

Chevron's Mistake, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

"Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc." asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation-whether intentionalism, purposivism, or textualism-and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as …

"The Threes": Re-Imagining Supreme Court Decisionmaking, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

In this Essay--the first in a series of essays designed to reimagine the Supreme Court--we argue that Congress should authorize the Court to adopt, in whole or part, panel decision making... With respect to the prospect of different Court outcomes, we demonstrate empirically in this Essay that the vast majority of cases decided during the late twentieth and early twenty-first centuries--including "Grutter", "Roe", and "Bush v. Gore" --would have come out the same way if the Court had decided them in panels rather than as a full Court.

Law's Complexity: A Primer, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The legal system. It rolls easily off the tongues of lawyers like a single word - the legal system - as if we all know what it means. But what is the legal system? How does it behave? What are its boundaries? What is its input and output? How will it look in one year? In ten years? How should we use it to make change in some other aspect of social life? Why do answers to these questions make the legal system seem so complex? Would assembling a cogent, descriptively accurate theory of what makes the legal system complex …

Gender Justice Through Public Interest Litigation: Case Studies From India, Avani M. Sood

Vanderbilt Journal of Transnational Law

This Article examines the application of the Supreme Court of India's enterprising Public Interest Litigation (PIL) mechanism to a subject of compelling global concern: violations of women's rights. India is currently receiving much international attention for its dynamism and innovation on various fronts, yet the country also remains steeped in centuries-old norms and conventions. This tension is reflected in the decisions of the Supreme Court, which has assumed an active role in enforcing women's rights through PIL but is sometimes limited in this regard by the complex cultural context in which it operates. Based on an analysis of Indian constitutional …

Chief Judges: The Limits Of Attitudinal Theory And Possible Paradox Of Managerial Judging, Tracey E. George, Albert H. Yoon

Vanderbilt Law School Faculty Publications

Chief judges wield power. Among other things, they control judicial assignments, circulate petitions to their colleagues, and manage internal requests and disputes. When exercising this power, do chiefs seek to serve as impartial court administrators or do they attempt to manufacture case outcomes that reflect their political beliefs? Because chiefs exercise their power almost entirely outside public view, no one knows. No one sees the chief judge change the composition of a panel before it is announced or delay consideration of a petition for en banc review or favor the requests of some colleagues while ignoring those of others. Chiefs …

The Most Dangerous Justice Rides Into The Sunset, Paul H. Edelman, Jim Chen

Vanderbilt Law School Faculty Publications

In this essay, our third and last in a series, we employ our previously developed techniques to measure the power of the Justices in the Rehnquist Court over its full 11 year run. Once again, Justice Kennedy rises to the top of our rankings, as he had done earlier. Our methods identify Justices Souter, Breyer and Ginsburg as being notable either for their influence or lack thereof. In addition, we rejoin the debate on the connection between being the median justice and being the most powerful one. We question whether even the most sophisticated methods of finding the median justice …

Commandeering And Its Alternatives: A Federalism Perspective, Neil S. Siegel

Vanderbilt Law Review

This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control.

While it is a context-sensitive empirical question whether specific applications of the …

Celebrities In The Courtroom: Legal Responses, Psychological Theory And Empirical Research, Jared Chamberlain, Monica K. Miller, Alayna Jehle

Vanderbilt Journal of Entertainment & Technology Law

This article sets out to answer a basic question about celebrities in the legal system: does celebrity status influence the outcome of a trial? Part I focuses on the legal aspects surrounding the treatment of celebrities in the courtroom. For example, there is some evidence that celebrities receive preferential treatment in court, while there is other evidence that celebrities are held to higher standards than non-celebrities. Part II examines psychological theories suggesting that status and authority influence jurors' decision-making processes. In Part III, a review of relevant past psychological research provides an empirical basis to make conclusions about celebrity influence …

How "Mead" Has Muddled Judicial Review Of Agency Action, Lisa S. Bressman

Vanderbilt Law Review

When the Supreme Court decided United States v. Mead Corp. four years ago, Justice Scalia predicted that judicial review of agency action would devolve into chaos. This Article puts that prediction to the test by examining the court of appeals decisions applying the decision. Justice Scalia actually understated the effect of Mead. This Article suggests a remedy for the mess.

In Mead, the Court held that an agency is entitled to deference under Chevron, U.S.A., Inc. v. NRDC only if Congress has delegated to that agency the authority to issue interpretations that carry the force of law, and the agency …

Empirical Measures Of Judicial Performance: An Introduction To The Symposium, Jim Rossi, Steven G. Gey

Vanderbilt Law School Faculty Publications

Inspired by the burgeoning empirical literature on the judiciary, the editors of the Florida State University Law Review have solicited some papers from leading scholars and federal courts of appeals judges, asking them to address the topic of empirical measures of judicial performance. The papers in this "Symposium on Empirical Measures of Judicial Performance" address empirical measures of judicial performance from a variety of methodological perspectives, but as this Foreword suggests, they can roughly be organized around three basic themes. First, many of the papers critique the empirical enterprise itself and especially the tournament strategy for evaluating judges, although these …

Damaged Goods: Why, In Light Of The Supreme Court's Recent Punitive Damages Jurisprudence, Congress Must Amend The Federal Rules Of Evidence, Michael S. Vitale

Vanderbilt Law Review

Since the 1980s, a wide range of courts and commentators have expressed concern over large punitive damages awards handed out by civil juries against a wide array of tortfeasors. A late 2001 study revealed that from 1985 to 2001, eight multi-billion dollar punitive damages awards were granted, with four of them being handed down in the years 1999 to 2001 alone.' Not surprisingly, all but one of these verdicts were handed down against large corporations. Among the current members of the U.S. Supreme Court, Justice John Paul Stevens in particular has regularly noted the especially dangerous tendency the current punitive …

Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Ditslear

Vanderbilt Law Review

Federal statutes, like the lawmaking enterprise itself, are seldom models of efficiency. Whether through inevitable laxity or conscious choice, Congress when legislating leaves a fair number of gaps in the meaning of its complex regulatory schemes. In filling those gaps with case-specific interpretive responses, federal courts perform an important policymaking function.

Such policymaking has lately generated increased concerns about the politicization of the judiciary. Scholars using social science techniques have contributed to the image of courts as policymakers, by establishing that judges' political party affiliation and ideological orientation are at times significant predictors of voting behavior. Presidents and senators have …

Improving The Appellate Process Worldwide Through Maximizing Judicial Resources, Honorable J. Clifford Wallace

Vanderbilt Journal of Transnational Law

As the number of cases filed each year has surged, U.S. federal appellate courts have evolved in order to fulfill their core functions of deciding appeals and setting guiding precedent. Many of the challenges created by overwhelming caseloads are also being tackled in foreign judicial systems. In this Article, Judge Wallace offers the approach of the United States Court of Appeals for the Ninth Circuit as a possible model of reform, although he also points out that each judiciary will need to tailor reform efforts to its particular circumstances. In Part II, Judge Wallace details several of the case management …

Felony Jury Sentencing In Practice: A Three-State Study, Nancy J. King, Rosevelt L. Noble

Vanderbilt Law Review

The Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), has prompted renewed interest in sentencing by jury in non-capital cases. Yet jury sentencing in felony cases remains one of the least understood procedures in contemporary American criminal justice. This Article looks beyond idealized visions of jury sentencing to examine for the first time how felony jury sentencing actually operates in three different states-Kentucky, Virginia, and Arkansas. Dozens of interviews with prosecutors, defenders, and judges, as well as an analysis of state sentencing data, reveal that this neglected corner of state criminal justice provides a unique window …

Judicial Independence And The Ambiguity Of Article Iii Protections, Tracey E. George

Vanderbilt Law School Faculty Publications

Is the federal judiciary truly an independent body? A quick glance at the Constitution would suggest the answer is yes. The Constitution provides for life tenure and a difficult removal process for federal judges that together, as the common wisdom goes, shield federal judges from the shifting winds of the more political branches and the public at large. The author of this essay argues, however, that on a closer examination of the protections provided for by the Constitution, judicial independence might be more mirage than truism. Threats to judicial independence arise not only externally through the actions of the other …

Federal Court Authority To Regulate Lawyers: A Practice In Search Of A Theory Of A, Fred C. Zacharias, Bruce A. Green

Vanderbilt Law Review

Federal courts regulate lawyers, including federal prosecutors, by enforcing various constitutional, statutory, and other legal constraints. Federal courts also adopt and enforce their own disciplinary rules pursuant to rule-making authority delegated by Congress. To what extent, however, do federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors? Although lower federal courts have long exercised power both to define and to sanction professional misconduct, the United States Supreme Court has never clarified the source and scope of this authority.

This issue is important for two reasons. First, most federal …

A Jurisprudence Of Dangerousness, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article addresses the state's police power authority to deprive people of liberty based on predictions of antisocial behavior. Most conspicuously exercised against so-called "sexual predators," this authority purportedly justifies a wide array of other state interventions as well, ranging from police stops to executions. Yet there still is no general theory of preventive detention. This article is a preliminary effort in that regard. The article first surveys the various objections to preventive detention: the unreliability objection; the punishment-in-disguise objection; the legality objection; and the dehumanization objection. None of these objections justifies a complete prohibition on the state's power to …

Maintaining The Adversarial System: The Practice Of Allowing Jurors To Question Witnesses During Trial, Kristen Debarba

Vanderbilt Law Review

A defendant sits in the witness stand undergoing examination by his attorney. He is accused of armed robbery, among other criminal acts. During the course of the defendant's testimony, a juror blurts out that he has a question. The judge tells the juror to write his question down and advises the juror that he will be able to ask his question upon completion of the attorneys' examinations. When the juror's question is finally asked, the judge indicates to the defendant's attorney that the attorney should address the matter raised by the juror on reexamination. During the reexamination, the attorney turns …

On Legal Interpretations Of The Condorcet Jury Theorem, Paul H. Edelman

Vanderbilt Law School Faculty Publications

There has been a spate of interest in the application of the Condorcet Jury Theorem to issues in the law. This theorem holds that a majority vote among a suitably large body of voters, all of whom are more likely than not to vote correctly, will almost surely result in the correct outcome. Its uses have ranged from estimating the correct size of juries to justifying the voting of creditors in Chapter 11 reorganizations. While the mathematics is unassailable, the legal interpretation of the conclusion is dependent on the model of probability one uses when invoking the assumption that the …

The Law And Large Numbers, Paul H. Edelman

Vanderbilt Law School Faculty Publications

Can mathematics be used to inform legal analysis? This is not a ridiculous question. Law has certain superficial resem­blances to mathematics. One might view the Constitution and various statutes as providing "axioms" for a deductive legal sys­tem. From these axioms judges deduce "theorems" consisting of interpretation of these axioms in certain situations. Often these theorems are built on previously "proven" theorems, i.e. earlier decisions of the court. Of course some of the axioms might change, and occasionally a theorem that was once true becomes false; the former is a common feature of mathematics, the latter, though theoretically not possible in …

Reciprocity, Utility, And The Law Of Aggression, Anita Bernstein

Vanderbilt Law Review

The themes of incursion and boundary-crossing unite disparate legal domains. Wherever human beings cross paths and share space, law or law-like traditions develop to regulate this terrain by distinguishing permitted from proscribed intrusion.' Crimes and torts, regulation and liability, claims and defenses to claims, private law and public law all use a variety of measures--punishments, administrative rules, equitable remedies, professional discipline, and informal or extralegal sanctions-to condemn undue aggression. Concern about aggression may be found in the law of every jurisdiction in the United States.

Within American law, an extra increment of aggression can amount to the only difference between …

The Most Dangerous Justice Rides Again: Revisiting The Power Pageant Of The Justices, Paul H. Edelman, Jim Chen

Vanderbilt Law School Faculty Publications

Who is the most powerful Supreme Court Justice? In 1996 we measured voting power on the Court according to each Justice's ability to form five-member coalitions. From the set of all coalitions formed by the Court during its 1994 and 1995 Terms, we developed a generalized Banzhaf index of the Justices' relative strength. Generally speaking, participating in a greater number of unique coalitions translates into greater judicial voting power. To supplement the small number of decisions then available, we derived hypothetical five-Justice coalitions from the intersections of actually observed coalitions involving more than five members. Professor Lynn Baker contested our …

Disentangling Deregulatory Takings, Jim Rossi, Susan G. Rose-Ackerman

Vanderbilt Law School Faculty Publications

Constitutional takings protections, such as those in the Fifth Amendment of the United States Constitution, create a potential for state liability for changes in regulatory policy by governments. This Article critiques takings jurisprudence in the context of two infrastructure investment issues: the stranded cost problem facing United States utility industries, which has given rise to claims of compensation for deregulatory takings; and the development of standards to protect direct foreign investment in developing countries. In both contexts, traditional legal doctrines do not adequately provide for the type of remedy sought so courts are in need of standards to assist them …

Foreword: Is Justice Just Us?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This is a review of JUSTICE, LIABILITY AND BLAME, by Paul Robinson and John Darley. The book is a summary of 18 studies which surveyed lay subjects about their attitudes toward various aspects of criminal law doctrine, including the act requirement for attempt, omission liability, accomplice liability, the felony-murder role, and the intoxication and insanity defenses. In virtually every study, the authors found that the subjects disagreed with the Model Penal Code's position, the common law's position, or both. The authors contend that results of surveys such as theirs should play a significant role in designing criminal doctrine, both because …