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.

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Wealth Effects and Earnings Premiums for Job Hazards
(The Review of Economics and Statistics, 1978) Viscusi, W. Kip
DAM Smith (1937) observed that "the whole of the advantages and disadvantages of the different employments of labor and stock must, in the same neighborhood, be either perfectly equal or continually tending to equality." If a job poses health and safety risks that are especially great, a worker will require higher levels of compensation or greater non-pecuniary benefits in order for him to accept the risky job. Despite the fact that the theory of compensating differentials is almost two centuries old, it has been only recently that this theory has been subjected to successful empirical tests. The purposes of this essay are twofold. First, in section II, I will formalize the theory of individual choice among potentially hazardous jobs for the general situation in which worker preferences are contingent on the health state outcome. An important implication of this analysis is that the job risk that a worker selects will be negatively related to his wealth. The second purpose of the investigation is to test the two principal conceptual hypotheses. The characteristics of the principal data source to be used are summarized in section III. The University of Michigan Survey of Working Conditions, which is the data set used in the compensating differentials analysis, provides very extensive information concerning the nature of the worker's particular job and his personal characteristics. Section IV presents the analysis of the earnings differentials generated by job hazards and other job attributes. In section V, I consider the responsiveness of the job risk to a worker's wealth. The empirical findings, which are consistent with the theoretical predictions, are summarized in Section VI.
Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling
(Yale Law Journal, 1978) Clayton, Ellen Wright
Although genetic disorders have been recognized for centuries, recent advances in the study of human genetics often permit accurate determination of the risk that parents will have genetically defective children.' When this information is available either before conception or during pregnancy, prospective parents may choose to prevent the birth of such defective children through contraception or abortion. Recently, courts have been called on to define the circumstances in which either the parents or the children should receive tort damages when parents are denied opportunities to prevent the birth of defective children because of their physicians' negligent failure to detect or disclose risks of genetic disorder. Only eleven years ago, a court was unwilling to impose liability on physicians who had given inaccurate information about the risk of an environmentally induced birth defect. Yet many of the arguments that swayed that court are no longer persuasive to courts now deciding cases involving the birth of genetically defective children. This may be due in part to the growing public awareness of the economic and emotional burden of genetic disease. Moreover, with dramatic constitutional developments expanding the right to choose not to procreate, judicial reluctance to approve abortion undertaken to avoid the birth of defective children no longer seems justified. Thus, in Howard v. Lecher a physician had allegedly been negligent in failing to detect the parents' risk that their child would be fatally afflicted with Tay-Sachs disease. Although the New York Court of Appeals denied the parents' cause of action for emotional distress, the lower court's recognition of their claim for medical and funeral expenses incurred in the child's behalf was not even appealed. In Park v. Chessin, a later case based on allegations that the defendant physicians had given inaccurate genetic risk information, a New York appellate court refused to dismiss a cause of action for "injuries and conscious pain and suffering" brought on behalf of a child born with polycystic kidney disease, a degenerative genetic disorder that inevitably leads to early death. The child's parents were allowed to assert a claim for their medical and support expenses. The new judicial willingness to recognize some physician liability for failure to give accurate genetic risk information has not produced consistent results. In some cases, courts have permitted only the parents to bring suit, while in others both parents and defective children have been allowed to sue." When courts have reached the question of defining the duty of physicians to detect and to disclose genetic risks, the standards promulgated have often limited inappropriately the scope of physicians' liability. Finally, even cases in which liability has been imposed have recognized differing types and measures of damages for similar injuries.' This Note provides a more coherent method for analyzing such cases. Part I discusses the process of identifying and advising prospective parents who risk having genetically defective children so that they may make better informed procreative choices. Part II argues that imposing tort liability on individual physicians can best vindicate the social interest in reducing the incidence of genetic defects; it also contends that only causes of action asserted by parents of children with such disorders should be sustained. Part III proposes a set of requirements, based largely on existing tort doctrines, for upholding such causes of action and sets forth principles for determining the measure of damages for negligent genetic counseling by physicians.
The Changing Meaning of "Gift": An Analysis of the Tax Court's Decision in "Carson v. Commissioner"
(Vanderbilt Law Review, 1979) Schoenblum, Jeffrey A.
The complexity of detail that characterizes the Internal Revenue Code (Code) has been the subject of intense criticism and only faint praise. Yet, one of the more striking anomalies of the Code is that its often suffocating detail coexists with the sparest definitions of many key terms. The term "gift" is a prime example. Although its meaning plays an instrumental role in income and gift taxation, the Code nowhere defines the term. As a result, the task of fleshing out its meaning has largely fallen on the Treasury, through the issuance of regulations and rulings, and on the courts, which over the years have crafted a unique common law.
From De Facto to Statutory Exemption: An Analysis of the Evolution of Legislative Policy Regarding the Federal Taxation of Campaign Finance
(Virginia Law Review, 1979) Schoenblum, Jeffrey A.
This article first explores the development of the de facto system of tax exemption and identifies the tensions that led to its demise. The analysis then details the substitution of a statutory structure in place of the traditional informal arrangement and examines the potential present in that structure for substantial IRS interference in the political process.
Sex Differences in Worker Quitting
(The Review of Economics and Statistics, 1980) Viscusi, W. Kip
Although women quit more both overall and within major occupational groups than do men, this observation is not particularly informative due to the substantial heterogeneity of worker characteristics and job characteristics. Analysis of a sample of almost 6,000 male and female workers suggests that sex differences in quitting have been overdrawn in many previous discussions. Female quit behavior differs from that of males by more than the addition of a sex-specific intercept term. For example, women are more likely to quit work in hazardous industries due to the likely greater uncertainty regarding their appropriateness to such jobs. Unlike their male counterparts, better educated women are more likely to quit their jobs, perhaps because of the greater uncertainties associated with jobs traditionally held by men. Conventional notions regarding female quitting are reflected by the lower stabilizing effect of age on their quit rates. Certainly the most important single difference is that female employees are more likely to have no more than a year of experience and within this low experience category they display greater quit rates. The source of the TENURE1 difference is not clear since it reflects specific human capital investments, learning about job characteristics that alters the position's attractiveness, as well as periodic labor force attachments other than those reflected through work on a part-time basis (since inclusion of this influence did not substantially affect the results). After the initial year of work, male and female quit rates are roughly identical. Almost the entire predicted male-female quit difference and half of the actual difference can be explained by differences in their jobs and regional economic conditions. If women had the same job characteristics and the same percentage with more than one year of experience at the firm, their predicted quit rate would be below that for men and their mean quit rate for the sample would be equal to that of men after adjusting for these influences. Indeed, women display greater stability than they would if characterized by the coefficients in the male quit equation. Coupled with the almost identical response of each group's quit rates to additional wage payments, these findings suggest that the overall quit rates resulting from somewhat different behavior leads to turnover rates more similar than earlier studies have suggested. As a consequence, sex differences in wages and unemployment should not be so readily attributed to turnover-related differences in the behavior of male and female employees.
The Role of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation
(Virginia Law Review, 1980) Slobogin, Christopher, 1951-; Bonnie, Richard J.
In this article we have attempted to make the case for continued participation by appropriately qualified mental health professionals in the adjudication of reconstructive subjective issues of the criminal law. In Part I, we outlined the reasons why imprecision and speculation is and must be tolerated in doctrines of exculpation and mitigation. In Part II, we developed the case for evidentiary rules which permit "informed speculation" by qualified clinical experts so as to enable defendants to explore and present subjective defenses and assist triers of fact to assess the plausibility and significance of such claims. We recognize that many mental health professionals have no special training or expertise in forensic matters and are not adequately sensitive to the risks of unreliability and imprecision in the evaluation process. We believe, accordingly, that the primary focus of reform should be on improving the quality of clinical participation in the criminal process, an effort which depends primarily on collaboration between the bar and the mental health professions to define the necessary qualifications of expert witnesses and to establish criteria for acceptable evaluation procedures. We sought in Part III to contribute to this collaborative effort by outlining some general guidelines that might facilitate objectivity in forensic evaluation.
An Overview of the Uniform Land Transactions Act and the Uniform Simplification of Land Transfers Act
(Stetson Law Review, 1980) Bruce, Jon W.
The Uniform Land Transactions Act (ULTA) and the Uniform Simplification of Land Transfers Act (USLTA) recently were approved by the National Conference of Commissioners on Uniform State Laws and recommended to the several states for adoption. The symposium which follows this article thoroughly analyzes ULTA and USLTA in light of current Florida law. The purpose of this article is to review the development of these acts and place them in general perspective. Thus, the reader will have a rough framework within which the more specialized and detailed student analysis may be placed.
Capacity to Contest a Search and Seizure: the Passing of Old Rules and Some Suggestions for New Ones
(American Criminal Law Review, 1981) Slobogin, Christopher, 1951-
Professor Slobogin examines recent Supreme Court decisions involving standing to challenge search and seizure violations, and argues that the Court's commitment to a "totality of the circumstances" approach has permitted erosion of fourth amendment protections. After concluding that these decisions provide little guidance to lower courts, Professor Slobogin offers a set of principles which will aid in analyzing the Court's direction.
Health and Safety
(Regulation, 1982) Viscusi, W. Kip
My review of recent risk regulation policies necessarily starts with the new oversight group within the Office of Management and Budget (OMB), because it has been the dominant force for improvement thus far. Unfortunately, OMB's efforts have not been matched by a similar commitment at the agency level.
Frameworks for Analyzing the Effects of Risk and Environmental Regulations on Productivity
(American Economic Association, 1983) Viscusi, W. Kip
The existence of a negative relationship between the regulatory burden and capital investments, and consequently productivity,is not controversial. A conventional model of this type is developed in Section I. If, however, these regulations change over time and firms' investment decisions are irreversible, there will be additional distortions, as shown in Section II. In Section III, I show that uncertainty regarding these regulatory changes exacerbates the adverse productivity effects even for risk-neutral firms.
Alternative Approaches to Valuing the Health Impacts of Accidents: Liability Law and Prospective Evaluations
(Law & Contemporary Problems, 1983) Viscusi, W. Kip
The task of valuing accidental injuries and deaths is intrinsically difficult for two reasons. First, unlike standard consumer commodities, individual health is not traded explicitly on the market. It may be traded implicitly as with wage premiums for risky jobs, but these implicit prices must be estimated statistically. The second problem is that the value one places on any economic commodity depends on the welfare one can derive from it. Since adverse health effects influence the welfare one can obtain from any given level of income, the value of one's health status depends on the context in which such values are calculated. In particular, is one attempting to ascertain the amount a person would pay to prevent the loss of health, the amount he would like to be compensated under an insurance policy if he suffered such a decline in health, or the amount of compensation he would need after an adverse health effect to restore his level of welfare? The answer to each of these questions is quite different. Since the manner in which the health value issue is posed plays a pivotal role in its determination, Section II addresses both the methodological underpinnings of valuing health impacts and the legal principles underlying accident compensation. Sections III and IV analyze the empirical evidence regarding prospective valuations of health risk prevention and ex post compensation for accidents. These health value estimates are quite different. Whether or not the observed disparities are inappropriate is unclear, but both the manner in which compensation issues should be structured and some empirical techniques for assessing the appropriate compensation levels can be reliably indicated.
Phosphates and the Environmental Free Lunch
(Regulation, 1984) Viscusi, W. Kip
The environmental rationale for a detergent phosphate ban is straightforward enough. Phosphates are pollutants because, ironically enough, they are biodegradable. In fact, living things thrive on them. Excessive phosphate levels in lakes and streams promote rapid growth of algae, and so speed up the natural aging process (called eutrophication) of these waterways. The clarity of the water declines, oxygen levels drop, and in extreme cases fish die. The watershed, in short, can become a swamp rich in primitive plant and animal life, but not at all like the pristine waters that humans prefer to swim and fish. What could be more appealing than a legislative ban of phosphates in detergents? The payoff: clearer water at no cost whatsoever to the taxpayer. Indeed, some even suggest that the ban offers a financial advantage to consumers, because some generic nonphosphate detergents cost less than the brand-name phosphate detergents consumers now buy. The free lunch, in other words, is freer than free. No wonder some state legislators are eager to dine. But for those interested in environmental protection, not political pabulum, some irritating seasoning comes along with the meal. First, even if the lunch is free, it is not a substantial repast. Detergent phosphates are only small contributors to the overall phosphate levels. Second, the lunch is not free. A fact apparently overlooked by some state legislatures is that consumers adjust their behavior in response to the phosphate ban. And when all is said and done, washing without phosphates is quantifiably more expensive than washing with them.
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.
Dangerousness and Expertise
(University of Pennsylvania Law Review, 1984) Slobogin, Christopher, 1951-
The defendant-first approach advocated in this Article is more difficult to implement than either the current policy admitting any proffered expert testimony or the exclusionary reform advanced by many commentators. It requires some mechanism for apprising the state when the defense intends to use clinical prediction testimony. When no such intent is registered, it demands that any other clinical testimony, whether offered by the state or the defense, be carefully monitored to insure that the dangerousness issue is not raised; it may require revamping other procedures as well.2 " But the defendant-first approach also presents the factfinder with the most reliable, most relevant, and least prejudicial information on the dangerousness issue: hard actuarial data and proof of prior bad acts. At the same time, it does not foreclose the defense from presenting clinically obtained and combined information on the dangerousness issue. Moreover, since the defense may frequently elect not to use clinical prediction testimony, it should force the state to generate alternative sources of information on dangerousness;in particular, it should improve the art of prediction by providing an incentive to develop hard actuarial data. Finally, the defendant-first approach conforms more closely than either wholesale admission or exclusion with due process notions of fairness and fifth amendment selfincrimination jurisprudence. Most significantly, the aforementioned need to have the defense's expert testify first so as to permit the judge to gauge the appropriate scope of the prosecution's rebuttal may necessitate changes in typical practice. See supra note 201.
The Lulling Effect: The Impact of Child-Resistant Packaging on Aspirin and Analgesic Ingestions
(AEA Papers and Proceedings, 1984) Viscusi, W. Kip
In 1972 the Food and Drug Administration imposed a protective bottlecap requirement on aspirin and other selected drugs. This regulation epitomizes the technological approach to social regulation. The strategy for reducing children's poisoning risks was to design caps that would make opening containers of hazardous substances more difficult. This engineering approach will be effective provided that children's exposure to hazardous products does not increase. If, however, parents leave protective caps off bottles because they are difficult to open, or increase children's access to these bottles because they are supposedly "child proof," the regulation may not have a beneficial effect. Indeed, in this case there was no significant impact of the regulation on aspirin poisoning rates, but there has been an alarming, upward shift in the trend of analgesic ingestion rates since 1972. The source of this pattern appears to be attributable to a general reduction in parental caution with respect to such medicines, which has had an adverses pillovere ffect on unregulatedp roducts. The economic mechanisms involved can be best understood by considering the nature of individuals' response to regulatory protection.
Selective Judicial Activism in the Equal Protection Context: Democracy, Distrust, and Deconstruction
(Georgetown Law Journal, 1984) Sherry, Suzanna
The equal protection clause, ambiguous in its language and its history,' has over the last three decades been transformed from the "last resort of constitutional arguments' into a significant force in shaping the American response to the continuing challenge of a pluralistic society. This transformation, achieved primarily by the Warren Court, has been effected through development of a multi-tiered theory of equal protection. Beginning with Koremalsu v. United States, the Court has applied heightened scrutiny to those legislative schemes involving suspect classifications or fundamental rights.6 If the legislation involves neither a suspect classification nor a fundamental right, the Court applies minimal scrutiny, asking only whether the legislative scheme bears a rational relationship to a permissible state interest. If one of the factors triggering heightened scrutiny is present, however, the Court demands that the government show both a more significant governmental interest and a tighter fit between the means and the end. The Court thus has adopted a practice of selective judicial activism, identifying suspect classifications and fundamental rights as contexts that trigger a more activist stance. The Court has never clearly articulated the purposes of heightened scrutiny nor sufficiently explained the nexus between the factors that make a classification suspect and the need for both a stronger governmental interest and a tighter fit. One major problem with the current doctrine of selective judicial activism in the equal protection area is a lack of congruence between the justifications offered for context-specific judicial activism and the identification of specific contexts that trigger that activism. This problem takes two forms. Either the justification is persuasive, but the contextual limits are too narrowly circumscribed, or the contextual limits are broad but are not justified in constitutional terms. This Article is an attempt to explain and defend selective judicial activism while showing that the only persuasive justification for such selectivity necessitates changing the current lines of selection.' I will argue that: (1) the purpose of heightened scrutiny in equal protection cases is to identify those instances in which class-based prejudice or indifference has likely influenced the legislative outcome; (2) the "suspect classifications" doctrine often used by the Court in the contexts of race and gender is fundamentally inconsistent with this purpose and should be replaced by a "disfavored class" doctrine; and (3) extension of a "disfavored class" doctrine to race and gender would change results in two significant areas by validating most affirmative action programs and subjecting neutral statutes with a disparate impact to heightened scrutiny.
Economic Contests: Comparative Reward Schemes
(Journal of Labor Economics, 1984) Viscusi, W. Kip; O'Keeffe, Mary; Zeckhauser, Richard
Contests are situations in which an individual's reward depends on his performance relative to others. Students are graded on a curve; the candidate with the most votes gets the political office; the un- derling who performs best is promoted to the executive position. Contests are useful in dealing with indivisible rewards, reducing monitoring costs, and minimizing risks from common uncertainties. They are employed to sort potential participants and, once they have entered, to induce appropriate effort from them. With monitoring precision and prize spreads as potential choice variables, optimal contest structures are derived for fair and unfair contests among equal and unequal participants. The converse problems of climbing-low- ability individuals enter the contest designed for high-ability can- didates-and slumming are shown to be manageable
The Guilty But Mentally Ill Verdict
(George Washington Law Review, 1985) Slobogin, Christopher
The occasionally controversial consequences of the insanity defense, epitomized by John Hinckley's acquittal, have recently spawned a rash of legislative attempts to prevent similar outcomes in future cases. Three states have abolished the insanity defense entirely, permitting evidence of mental abnormality only when relevant to the state of mind required for the offense. Several other states have opted for less dramatic steps: tinkering with the insanity test; shifting the burden of proof to the defendant; or both. By far the most popular "solution" to the "insanity defense problem," however, is what has become known as the guilty but mentally ill verdict. Although there are as many variations of the guilty but mentally ill verdict as there are statutes endorsing it, all such legislation is designed to provide the factfinder with an additional option to the three traditional verdicts of guilty, not guilty, and not guilty by reason of insanity. Under the typical formulation, if the jury finds a defendant who asserts the insanity defense guilty and not insane, it may alternatively find him guilty but mentally ill at the time of the offense. If the defendant is found guilty but mentally ill the court may impose any sentence appropriate for the offense, but the defendant is eligible for treatment in prison or a mental hospital while incarcerated. Proponents of guilty but mentally ill legislation hope to reduce insanity acquittals and provide greater protection to the public by offering judges and juries a compromise verdict that purportedly ensures both prolonged incarceration and treatment for the mentally ill offender.
Consumer Behavior and the Safety Effects of Product Safety Regulation
(Journal of Law and Economics, 1985) Viscusi, W. Kip
A recurring issue in the economic analysis of risk regulation agencies is whether these efforts have had any significant favorable effect on safety. Although the existence of such an effect would not necessarily imply that these efforts were worthwhile, without an enhancement in safety there is no potential rationale for these regulations.... Neither the aggregative data nor the CPSC's NEISS data on particular products provide any clearcut evidence of a significant beneficial effect on product safety from CPSC actions. If there is a beneficial effect of these regulations, then it is too small to estimate reliably. Since the CPSC's regulatory efforts address a small portion of the product safety problem and in some cases bear only a tangential relationship to product safety, this type of result accords with what one might expect. A much more surprising result was the pattern displayed by poisoning rates after the advent of safety caps. For those products covered by safety caps, there was no downward shift in poisoning rates. This ineffectiveness appears to be attributable in part to increased parental irresponsibility, such as leaving the caps off bottles. This lulling effect in turn led to a higher level of poisonings for related products not protected by the caps. The more general ramification of these results is that technological solutions to safety problems may induce a lulling effect on consumer behavior. The safety benefits will be muted and perhaps more than offset by the effect of the decreased efficacy of safety precautions, misperceptions regarding the risk-reducing impact of the regulation, and spillover effects of reduced precautions with other products. Although the precise contribution of the regulation cannot be distinguished from other shifts in behavior that may have occurred in the 1970s, it is clear that individual actions are an important component of the accident-generating process. Failure to take such behavior into account will result in regulations that may not have the intended effect.
Perspectives: Law in the Grand Manner
(Constitutional Commentary, 1985) Sherry, Suzanna
Being a Supreme Court justice must have been more fun in the eighteenth century than it is today. The caseload was lighter, and the Court was a social as well as a political center., The justices also apparently felt considerably less constrained by formal or informal rules of governance. In a single case in 1796, the Court violated virtually every rule of procedure and canon of construction. Hylton v. United States2 is an obscure taxation case cited occasionally as an unilluminating pre-Marbury example of judicial review.3 It is a charming illustration of the nonchalance with which the early Court approached its constitutional duties.

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