Vanderbilt Law School Faculty Works

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Welcome to the Vanderbilt Law School's Faculty Works collection. This open access collection includes published scholarly works.

For more information about the collection contact Deborah Schander, Associate Director for Public Services and Lecturer in Law.

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The 1909 Copyright Act in International Context
(Santa Clara Computer & High Technology Law Journal, 2010) Gervais, Daniel J.
The passage of the 1909 U.S. Copyright Act was embedded in a significant period of evolution for international copyright law. Just a year before, the Berne Convention had been revised for the second time. This Berlin (1908) Act of the Convention in remembered in par-ticular for the introduction of a broad prohibition against formalities concerning the "exercise and enjoyment" of copyright. 1909 was also just one year before a new copyright bill was brought before the Brit-ish Parliament. This Copyright Act, finally adopted in December 1911 and which entered into force in July 1, 1912, greatly influenced laws in many countries, including Australia, Canada, Israel, New Zealand, Nigeria, and South Africa. In this Essay, I situate the Berlin Act within the framework of the evolution of the Berne Convention from 1886 until the current 1971 Act and explore the role played by the United States, not as much as a participant in the Berlin Conference but by the way its actions influ-enced the actions of others. To this end, I discuss sequentially the emergence and evolution of the Berne Convention, and then two areas worthy of deeper analyses when considered against the back-drop of the 1909 Act, namely the prohibition against formalities and the rule imposing retroactive application of the Convention.
The 1996 Revised Florida Administrative Procedure Act: A Survey of Major Provisions Affecting Florida Agencies
(Florida State University Law Review, 1997) Rossi, Jim, 1965-
This Article examines the recent history of APA reform in Florida and surveys several provisions of the 1996 revised Florida APA that are likely to have a major effect on agency governance. Part II of this Article briefly reviews the recent history of regulatory reform in the state of Florida. Part III discusses an interesting innovation in Florida's 1996 APA revisions that governs agency waiver of rules and is designed to make agency decisionmaking more flexible. Part IV addresses three new provisions in Florida's APA meant to make rulemaking more accountable. Despite the many major changes from the status quo in the 1996 APA revisions, Part V concludes, on a skeptical note, that it will only be a short matter of time before Florida revisits the issue of APA reform.
The 200,000 Cards of Dimitri Yurasov: Further Reflections on Scholarship and Truth
(Stanford Law Review, 1994) Sherry, Suzanna; Farber, Daniel A., 1950-
Last April, Professors Daniel Farber and Suzanna Sherry published a critique in these pages of the legal storytelling movement. Their legal position has been the subject of several responses, including an essay by Professor William Eskridge in this issue. In reply, Professors Farber and Sherry challenge their critics' reliance on postmodern views such as social constructionism. Social constructionism, according to Farber and Sherry, embraces forms of community that would be destructive to the scholarly enterprise. It also risks conflating scholarship with politics in ways harmful to both. More generally, Farber and Sherry contend, postmodernism lacks any clear lessons for legal scholarship and possesses at best a contingent connection with progressive change.
4°C
(Minnesota Law Review, 2021) Ruhl, J.B.; Craig, Robin K.
In March 2020, while the world's attention was focused on the coronavirus pandemic, an international team of eighty-nine polar scientists from fifty organizations reported that Greenland and Antarctica are losing ice six times faster than they were in the 1990s. Based on satellite data, the research team concluded that "if the current melting trend continues, the regions will be on track to match the 'worst-case' scenario of the Intergovernmental Panel on Climate Change (IPCC) of an extra 6.7 inches (17 centimeters) of sea-level rise by 2100." One month later, in Siberia, "the small town of Verkhoyansk (67.5°N latitude) reached 100.4 degrees Fahrenheit, 32 degrees above the normal high temperature" and "likely the hottest temperature ever recorded in Siberia and also the hottest temperature ever recorded north of the Artic Circle, which begins at 66.5°N." All around the town, the Arctic tundra was burning. This was not an anomaly, but rather the leading edge of a trend. Throughout the Northern Hemisphere, wildlife danger is expanding northward: before enflaming the Arctic in 2020, wildfire devastated large parts of Norway, Sweden, and Scotland in the summer of 2019.
Accommodation and Equal Liberty
(William and Mary Law Review, 2001) Bressman, Lisa Schultz
How should legislatures respond to requests from religious individuals or institutions for exemptions to generally applicable laws? In Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause does not require legislatures (federal or state) to honor such requests. The question remains whether they should do so on a voluntary basis. This is the problem of permissive accommodation-that is, accommodation of religious liberty as a matter of political discretion rather than constitutional compulsion. Put in the terms of this Symposium, it is the problem of accommodation in the public square. It is not immediately apparent why permissive accommodation presents any problem at all. Because permissive accommodation is not mandatory, it does not raise the knotty issue of determining when legislatures must grant exemptions requests. Legislatures always may deny requests for permissive accommodation, but when they do grant such requests, they further a fundamental constitutional commitment to religious liberty by minimizing governmental interference with religious exercise. Why not simply encourage legislatures to grant requests for permissive accommodation to the greatest extent possible? The problem occurs when legislatures protect religious liberty in a manner that compromises another fundamental constitutional commitment-equality. If left to their own devices, legislatures might well grant exemptions for religious claimants while denying comparable treatment to nonreligious claimants. They might even grant an exemption to one religious sect while denying comparable treatment to other sects. In either case, the legislatures implicate themselves in the unconstitutional establishment of religion.
Adaptive Management in the Courts
(Minnesota Law Review, 2010) Ruhl, J. B.; Fischman, Robert, 1962-
Adaptive management has become the tonic of natural resources policy. With its core idea of "learning while doing," adaptive management has infused the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, it is no exaggeration to suggest that these days adaptive management is natural resources policy. But is it working? Does appending "adaptive" in front of "management" somehow make natural resources policy, which has always been about balancing competing claims to nature’s bounty, something more and better? Many legal and policy scholars have asked that question, with mixed reviews. Their evaluations, however, have rested on theory, program-specific surveys, and isolated case studies. This article provides the first comprehensive review of adaptive management from the perspective that likely matters most to the natural resource agencies practicing adaptive management - how is it faring in the courts? Part I of the Article examines the theory, policy, and practice of adaptive management, focusing on the experience of the federal resource management agencies. The end product in practice is something we call "a m-lite," a watered down version of the theory that resembles ad hoc contingency planning more than it does planned "learning while doing." This gap between theory and practice leads to profound disparities between how agencies justify decisions and how adaptive management in practice arrives at the courthouse doorsteps. In Part II we review how these disparities have played out in courts considering claims that agency practice of adaptive management has not lived up to its theoretical promise or to the legal demands of substantive and procedural environmental law. We extract three key themes from the body of case law in this respect. Part III extends from the existing case law to draw lessons for agencies and Congress about the future practice of adaptive management. Our ultimate message to agencies is that a m-lite can be an effective decision method - and one that survives judicial scrutiny - but agencies must be more disciplined about its design and implementation. This includes resisting the temptation to employ adaptive management to dodge burdensome procedural requirements, substantive management criteria, and contentious stakeholder participation. If faithfully followed and enforced, this model, despite its flaws, could serve as an important component of natural resources policy to confront problems of the future as daunting as climate change.
Adaptive Responses to Chemical Labeling: Are Workers Bayesian Decision Makers?
(American Economic Review, 1984) Viscusi, W. Kip; O'Connor, Charles J.
A fundamental issue in the economics of uncertainty is how individuals process information and make choices under uncertainty. In a recent analysis of the findings on risk perception, Kenneth Arrow (1982) concluded that the evidence regarding individual rationality was, at best, quite mixed. A prominent example of apparent irrationality of actual consumer behavior is that consumers, who presumably are risk averse, have failed to purchase heavily subsidized federal flood insurance. In the case of the market for hazardous jobs, which is the focus of this study, Viscusi (1979) found that workers' risk perceptions were positively correlated with the industry risk and that workers who perceived job risks received compensating wage differentials. Nevertheless, workers in high risk jobs displayed behavior consistent with an adaptive response in which workers accept jobs whose risks are not fully understood, learn about these risks based on their on-the-job experiences, and then quit if these experiences are sufficiently unfavorable given the wage for the job.
Adjusting the Value of a Statistical Life for Age and Cohort Effects
(The Review of Economics and Statistics, 2008) Viscusi, W. Kip; Aldy, Joseph E.
To resolve the theoretical ambiguity in the effect of age on the value of statistical life (VSL), this article uses a novel, age-dependent fatal risk measure to estimate age-specific hedonic wage regressions. VSL exhibits an inverted-U shaped relationship with age. In the year 2000 cross-section, workers' VSL rises from $3.7 million (ages 18-24), to $9.7 million (35-44), and declines to $3.4 million (55-62). Controlling for birth-year cohort effects in a minimum distance estimator yields a peak VSL of $7.8 million at age 46, and flattens the VSL-age relationship. The value of statistical life-year also follows an inverted-U shape with age.
An Administrative Jurisprudence: The Rule of Law in the Administrative State
(Columbia Law Review, 2015) Stack, Kevin M.
This Essay offers a specification of the rule of law’s demands of administrative law and government inspired by Professor Peter L. Strauss’s scholarship. It identifies five principles—authorization, notice, justification, coherence, and procedural fairness—which provide a framework for an account of the rule of law’s demands of administrative governance. Together these principles have intriguing results for the evaluation of administrative law. On the one hand, they reveal rule-of-law foundations for some contested positions, such as a restrictive view of the President’s power to direct subordinate officials and giving weight to an agency’s determination of the scope of its own authority. On the other hand, these rule-of-law principles expose some long-established practices as having troublesome foundations, such as the settled doctrine that agencies need not justify their choice of policymaking form. Consideration of these principles in the context of administrative law and government ultimately shows—like so much of Professor Strauss’s work—the many ways in which government under law ultimately depends on officials taking the rule of law as their highest-order commitment.
Adolescent Brain Science After Graham v. Florida
(Notre Dame Law Review, 2011) Maroney, Terry A.
In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without possibility of parole for a non-homicide crime committed when the offender was under the age of eighteen. In an earlier Article, The False Promise of Adolescent Brain Science in Juvenile Justice, this author noted the pendency of Graham and its companion case, in which petitioners and their amici offered neuroscientific arguments closely paralleling those made by the defendant in Roper v. Simmons. Kennedy’s opinion in Graham clarified what his opinion in Roper had left ambiguous: the Court believes neuroscience relevant to general propositions as to the normal developmental course of adolescence. As the cases’ potential impact was set to one side in False Promise, the Essay both supplements that Article and reflects on its conclusions. I predict that Graham’s most dramatic effects will have little to do with developmental neuroscience. Its most significant downstream effects likely will manifest in evaluation of term-of-years sentencing and opportunities for parole. As to adolescent brain science, I argue that the Graham Court gave it the maximum weight it presently can bear. The decision therefore provides welcome support for legal policy-makers - whether in courts or legislatures - who seek to draw modestly on such science in reinforcing commitments to the special legal status of youth. But the predictable post-Graham temptation to place even greater weight on developmental neuroscience should - for the many reasons articulated in False Promise, which remain unaltered - be resisted.
Adoption in the Progressive Era: Preserving, Creating, and Re-Creating Families
(The American Journal of Legal History, 1999) Guthrie, Chris; Grossman, Joanna L.
The history of adoption law and practice has received scant attention from legal scholars and historians. Most of what little scholarship there is focuses on the history of adoption to the mid-nineteenth century, when the first adoption statutes emerged in the United States. Although the enactment of these statutes has been hailed as "an historic moment in the history of Anglo-American family and society" and "the most far-reaching innovation of nineteenth-century custody law," few scholars have made an effort to document the actual operation of adoption law following the enactment of these landmark statutes. This article does just that. Drawing from actual trial court records, orphanage reports, appellate court decisions, and other sources, we describe the law and practice of adoption in the late nineteenth and early twentieth centuries in Alameda County, California, and argue that the adoption statutes (at least the California statutes) made three distinct types of adoption possible: Family preservation adoption, which reflected a tie to past, informal "adoption" practices, enabled adopters to keep already-established families and family money together. Family creation adoption, which emerged as the dominant type of adoption in the late nineteenth and early twentieth centuries, gave childless couples a way to approximate the biological parent-child relationship. And family re-creation adoption, a precursor to the modal practice of adoption in the mid-to-late twentieth century, enabled stepfathers to remake families previously disrupted by divorce or death.
Adversarial Economics in Antitrust Litigation: Losing Academic Consensus in The Battle of The Experts
(Northwestern University Law Review, 2012) Allensworth, Rebecca Haw
The adversarial presentation of expert scientific evidence tends to obscure academic consensus. In the context of litigation, small, marginal disagreements can be made to seem important and settled issues can be made to appear hopelessly deadlocked. This Article explores this dynamic's effect on antitrust litigation. Modem antitrust law is steeped in microeconomics, and suits rely heavily on economic expert witnesses. Indeed, expert testimony is often the "whole game" in an antitrust dispute because experts testify about dispositive issues such as the competitive effect of a business practice or the relevant boundaries of a market. And the Supreme Court has encouraged-even engineered-this delegation to economic authority. But when antitrust judges are faced with the appearance of deadlock among economic experts, they are forced to either decide the substance of the economics themselves or ask the jury to resolve it as a matter of fact. Both practices void much of the benefit of courtroom expertise. This Article examines several reforms that would make expert testimony less adversarial and evaluates their ability to better reveal the true distribution of expert opinion on an economic question. It then presents two reforms that, while preserving the adversarial structure of expert evidence, would increase the likelihood that consensus economic views prevail at trial.
Adverse Possession of Identity: Radical Theory, Conventional Practice
(Oregon Law Review, 2005) Clarke, Jessica A.
This Article examines the conditions under which acting as if one has a particular legal status is sufficient to secure that status in the eyes of the law. Legal determinations of common-law marriage, functional parenthood, and racial identity share striking similarities to adverse possession law – these doctrines confer legal status on those who are merely acting as if they have that legal status. In each case, the elements of a legal claim are strikingly similar: physical proximity, notoriety and publicity, a claim of right, consistent and continuous behavior, and public acquiescence. The reason public performance is critical is that these doctrines do not necessarily protect the immediate parties involved; rather, they aim to preserve third-party interests and the stability of the legal system against the threats of extra-legal forms of social ordering. This Article also examines what is at stake when legal doctrines acquiesce to public performances, a phenomenon I refer to as “performance reification.” By recognizing mere performance, these doctrines suggest that there is no underlying, extralegal, stable essence to property, marriage, parenthood, and race, potentially opening space for contesting the social meanings of these institutions. However, this Article concludes that performance reification is more likely to preserve traditional social meanings. For example, a woman is not recognized as a common-law wife unless she meets traditional expectations for wifely behavior. By only counting certain performances as worthy of reification, courts condition the grant of rights on conformity to particular social norms. Additionally, by imposing legal forms onto ambiguous social phenomena, performance reification solidifies the dominance of such forms. The law makes a person either a stranger or a parent to a child; there are no other legally recognized relationships. I conclude that law should only recognize performance when the third-party interests at stake outweigh the loss of potential variability caused by imposing a standardized form. For instance, the interests of children may weigh in favor of recognizing a standard set of parental duties, while community interests may not be strong enough to justify marriage as the only form of intimate alliance between adults.
Affirmative Constitutional Commitments: The State's Obligations to Property Owners
(Brigham-Kanner Property Rights Conference Journal, 2013) Serkin, Christopher
This Essay, prepared for the 2012 Brigham-Kanner Property Rights Conference, argues that social obligation theories in property generate previously unrecognized obligations on the State. Leading property scholars, like Hanoch Dagan, Greg Alexander, and Eduardo Peñalver, have argued that the institution of property contains affirmative duties to the community as well as negative rights. This Essay argues that those affirmative duties are two-way streets, and that moral bases for social obligations also generate reciprocal obligations on the State to protect property owners. The social obligation theories rely upon a dynamic not static vision of property rights. The community’s needs change, the conditions of ownership change, and the appropriate allocation of benefits and burdens within a society changes over time. Therefore, a legal obligation that is justified and permissible at the time it is enacted because it is consistent with moral obligations may become impermissible over time, even if the content of the legal obligation does not change. At the extreme, the State’s failure to respond to certain kinds of changes in the world can lead to a regulatory taking.
Afterword: Voices and Violence-- A Dialogue
(Vanderbilt Law Review, 1990) Clayton, Ellen Wright; Clayton, Jay, 1951-
When organizing this Symposium on the topic of "Law, Literature, and Social Change," we asked whether current trends in literature and in literary, social, and legal theory actually could play a role in bringing about social change. The authors gathered at this Symposium responded to this question in very different ways. As we read their articles and comments, however, and as we talked about their various approaches, some common themes began to emerge. Narrative seemed important. The way people split public life off from private experience came up frequently. But violence seemed to be on everyone's mind.
Against Diversity
(Constitutional Commentary, 2000) Sherry, Suzanna
Congress should repeal 28 U.S.C. § 1332 in its entirety, abolishing diversity jurisdiction altogether.
Against Immutability
(Yale Law Journal, 2015) Clarke, Jessica A.
Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but also those considered too important for anyone to be asked to change. Sexual orientation and religion are paradigmatic examples. This Article critically examines this new concept of immutability, asking whether it is fundamentally different from the old one and how it might apply to characteristics on the borders of employment discrimination law’s protection, such as obesity, pregnancy, and criminal records. It argues that the new immutability does not avoid the old version’s troublesome judgments about which traits are morally blameworthy and introduces new difficulties by requiring problematic judgments about which traits are important. Ultimately, immutability considerations of both the old and new varieties distract from the aim of employment discrimination law: targeting unreasonable and systemic forms of bias.
Age Variations in Risk Perceptions and Smoking Decisions
(The Review of Economics and Statistics, 1991) Viscusi, W. Kip
Abstract-The results of a national survey of smoking risks and smoking behavior are analyzed. Smoking risk perceptions follow the expected patterns given age differences in risk information acquired and differences in information associated with smoking status. Risk perceptions are greater as one moves to younger age cohorts, where overall lung cancer risks are substantially overestimated. These risk perceptions in turn have a negative effect on smoking decisions, where younger individuals behave no differently in terms of the manner in which they incorporate risk perceptions into their smoking decisions.
Agencies Running from Agency Discretion
(William & Mary Law Review, 2016) Ruhl, J.B.; Robisch, Kyle
Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming pre-decision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such pre-decision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations of the nature and scope of agency discretion available in modern administrative law, but agency discretion aversion and the concerns it raises have gone largely unaddressed in legal scholarship. And yet the discretion aversion syndrome is primed only to expand as climate change implicates a broadening span of agency programs as having environmental impacts. This Article is the first to comprehensively describe and assess the ESA/NEPA discretion aversion trend to extract what it has to say not only about agencies, courts, and statutes, but also about agency discretion in general. Part I describes the origins and features of the ESA and NEPA assessment programs leading to agency discretion aversion. Part II identifies the strategies agencies use to escape the ESA and NEPA assessment programs by disclaiming discretion. Part III probes institutional concerns for agencies, courts, and the statutes that arise from the discretion aversion syndrome, including agency gaming behavior, judicial conflicts regarding when nondiscretion exists, and compromised statutory purposes. Before turning to solutions, Part IV steps back to assess what questions the ESA and NEPA nondiscretion case law raises for the conceptualization of agency discretion writ large, identifying discretion’s “negative space” as the source of tension between agencies and courts. Part V then circles back to reexamine the ESA and NEPA nondiscretion doctrines, evaluating alternative measures to deflate agencies’ discretion aversion impulse while promoting the statutes’ purposes. We conclude that the most effective reform will be to eliminate discretion as the litmus test for the ESA and NEPA, replacing it with criteria more responsive to the statutes’ twin purposes of improving agency decisions and providing information to other political institutions and the public.
Agency Coordination in Shared Regulatory Space
(Harvard Law Review, 2012) Rossi, Jim, 1965-; Freeman, Jody
This Article argues that inter-agency coordination is one of the great challenges of modern governance. It explains why lawmakers frequently assign overlapping and fragmented delegations that require agencies to "share regulatory space," why these delegations are so pervasive and stubborn, and why consolidating or eliminating agency functions will not solve the problems they create. The Article describes a variety of tools that Congress, the President and the agencies can use to manage coordination challenges effectively, including agency interaction requirements, formal inter-agency agreements, and joint policymaking. The Article assesses the relative costs and benefits of these coordination tools, using the normative criteria of efficiency, effectiveness and accountability, and concludes that the benefits of coordination will frequently justify its costs. To varying extents, these instruments can reduce regulatory costs for both government and the private sector, improve expertise, and ameliorate the risk of bureaucratic drift without compromising transparency. Coordination can also help to preserve the functional aspects of shared or overlapping authority, which include promoting inter-agency competition and accountability, while minimizing its dysfunctions in terms of discordant policy. While burdensome, shared regulatory space should also provide an important opportunity for the President to extend his reach. The Article argues that the President is uniquely positioned and motivated to manage the problems of shared regulatory space, and that coordination tools afford him the chance to put his stamp on policy. The Article recommends a comprehensive executive branch effort to promote stronger inter-agency coordination and improve coordination instruments. Of course, any presidential exercise of centralized supervision must operate within legal bounds, and often will be politically contentious. On balance, however, presidential leadership will be crucial to managing the serious coordination challenges presented by modern governance, and existing political and legal checks on potential overreach are sufficient to manage any conflicts with Congress. The Article concludes by exploring the implications of enhanced inter-agency coordination for judicial review. Courts might adjust standards of review to promote coordination, but even under existing standards of review policy decisions arrived at through strong inter-agency coordination likely will attract greater deference. The Article shows that greater coordination is relatively unlikely to impact the outcome of the Chevron inquiry for reviewing agency legal interpretations. Yet it also suggests some minor doctrinal adjustments that could lead to greater deference where agencies use certain coordination instruments to adopt shared legal interpretations. The larger conceptual purpose of the Article is to draw attention to the phenomenon of shared regulatory space and highlight the pressing need for inter-agency coordination as a response. It invites scholars and practitioners to focus on inter-agency dynamics, which requires a departure from the single-agency focus that has traditionally been so central to administrative law.

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