Vanderbilt Law Review 

About: Vanderbilt Law Review is an academic journal. The journal publishes majorly in the area(s): Supreme court & Statute. It has an ISSN identifier of 0042-2533. Over the lifetime, 1404 publications have been published receiving 10432 citations.

On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession

Abstract: Introduction It took courage for Professor Patrick Schiltz to write the article that opens this symposium issue of the Vanderbilt Law Review. At the Notre Dame Law School, where Professor Schiltz teaches, as at the Vanderbilt University Law School and all elite schools, most graduates go to work in private practice, most often at large law firms. Professor Schiltz's portrayal of lawyers at such firms-as rich, overworked, unhappy, and often unethical-ought to be provocative and profoundly troubling to alumni at Vanderbilt and elsewhere. It will also be troubling to Deans, who struggle mightily each year to convince alumni to give money to their schools and to persuade aspiring students that the expense of a legal education is justified by the opportunities and quality of life a legal career affords. To take on alumni and deans at one blow-and in a readable law review article that will actually be read-takes courage, even for a tenured professor. Professor Schiltz's article carries on an honored tradition of professorial critique of the practice of law. The transition from practice at a law firm to an academic career is a difficult one, and it often affords the law teacher much greater opportunity to reflect on law firm life than those who have remained in practice. For some, that reflection is bittersweet. The daily struggle that Professor Schiltz describes, of hard work and at times tedious assignments that are nevertheless regularly punctuated by ethical dilemmas, can be truly enervating, and can be missed. Oliver Wendell Holmes, Jr., when he himself left the practice, wrote: But after all the place for a man who is complete in all his powers is in the fight. The professor, the man of letters, gives up one-half of life that his protected talent may grow and flower in peace. But to make up your mind at your peril upon a living question, for the purposes of action, calls upon your whole nature.l No doubt many lawyers who have left the crucible of large firm practice (and many former managing partners) share the worries that Professor Schiltz articulates so well in the article that follows. And they struggle with them. The better lawyers and associates at large firms will read and react to Professor Schiltz's article, and to the thoughtful comments that follow it. But it would be hubris for any of us to believe that the dilemma Professor Schiltz confronts is one he, or any of us, escapes by pursuing a different legal career, in academia or in another line of practice. It is an unfortunate truth that, if you are to bring your whole nature to bear on an important living question, you end up working extraordinarily hard, often on tedious details, and you face ethical decisions every step of the way. The balance of family and career is one we all face, whether we are representing capital defendants or revising a law school curriculum, and the more passionately we take our work the tougher the tradeoffs become. Professor Schiltz's article therefore has more general applicability than may be immediately apparent. Indeed, one could argue that large law firms are at the cutting edge of changes in the legal profession that will soon reach into every niche and specialty-changes in how fees are earned, how business is obtained, how lawyers are managed, and how work is done. Solutions to the problems Professor Schiltz identifies may be particularly vital as wider segments of the profession confront the economic forces that have made large law firms the way they are today. Law firms and the legal profession, for all the turbulence, remain today remarkably unchanged compared to most other businesses and professions, including (to name a few) medicine, banking, accounting, and engineering. Higher education (including law schools) may be one of the few areas that has changed less. If this symposium helps us to figure out how to enable lawyers, in a dynamic economy, to lead happy, balanced, and ethical lives, the answers will be useful not only where Professor Schiltz once worked, but where he works now. …

The Individualization Fallacy in Forensic Science Evidence

Abstract: Forensic scientists across a broad array of sub-specialties have long maintained that they can link an unknown mark (e.g., a partial fingerprint or tireprint) to a unique source. Yet no scientific basis exists for this assertion, which is sustained largely by a faulty probabilistic intuition equating infrequency with uniqueness. This Essay traces the origins of the individualization claim and explicates the various failed lines of evidence and argument offered in its support. We conclude with suggestions for improving the scientific bases of the forensic identification sciences. I. FOREWORD: THE TWO STEPS IN FORENSIC IDENTIFICATION Forensic identification science involves two fundamental steps. The first step is to compare a questioned item of evidence to an exemplar from a known source and judge whether they appear so alike that they can be said to match. The second step is to assess the meaning of that reported match: What is the probability that the questioned and the known originated from the same source?1 Different risks of error are present at each step. The risk of error in the first step is that a reported match between a questioned and a known sample might not really match. Even if the method used to compare questioned and known samples were flawless, an error could occur if, for example, one of the samples had been mislabeled or mixed up with a different sample. The risk of error associated with the second step is that, while accurate, the reported match may have arisen through coincidence and not because the samples share a common source. The risks of error at both steps affect the ultimate inferences that can be drawn about the identification evidence in a case.2 Both risks are subjects of far too little research. As to the first step, existing standards and procedures do not provide sufficient protection from erroneous conclusions that two marks are indistinguishably alike-that is, that they "match" when in fact they differ. Few, if any, criminalistics subfields have objective standards for deciding whether two patterns match. That determination is left to the judgment of each examiner. For example, consider David Stoney's discussion of fingerprint examination standards: How much correspondence between two fingerprints is sufficient to conclude that they [are the same pattern] ... ? An adequate answer ... is not currently available. The best answer at present... is that this is up to the individual expert fingerprint examiner to determine, based on that examiner's training, skill, and experience. Thus, we have an ill-defined, flexible, and explicitly subjective criterion for establishing fingerprint identification .... Any unbiased, intelligent assessment of fingerprint identification practices today reveals that there are, in reality, no standards.3 The lack of objective standards helps explain the disturbing findings from the small body of research that has been conducted on pattern matching by forensic scientists. In some tests, examiners disagreed with one another about whether various images matched.4 In others, examiners who agreed that two patterns matched disagreed (sometimes dramatically) on what constituted the match.5 Examiners differ not only in their ability to perceive pattern similarity, but also in their thresholds for declaring matches.6 Other research suggests that the match judgments of experienced criminalists are influenced by extraneous information. A study by Itel Dror et al. found that four of five fingerprint experts who previously had identified two prints as a match reached different conclusions on a later examination, after they learned that the prints were from different persons.7 In a follow-up study, six other fingerprint experts were provided with eight pairs of prints that they previously had judged.8 The study found that introduction of contextual information induced four of the six experts to change at least one of their previous match judgments. …

Intellectual Property Rights in Data

Abstract: The Authors trace the evolution of hybrid intellectual property rights protecting the contents of noncopyrightable databases from early European Commission proposals sounding in unfair competition law to the strong and potentially perpetual exclusive property right embodied in the final E.C. Directive on Databases adopted in March 1996. Also examined are parallel legislative proposals pending before Congress and the draft international treaty on the legal protection of databases to be considered at a Diplomatic Conference hosted by the World Intellectual Property Organization in December 1996. The Authors endorse the need to provide some ancillary legal relief for investors in the generation and distribution of digitized data over telecommunications networks, lest free-riders appropriate the fruits of these investments. They deplore, however, the creation of strong legal barriers to entry in a field of endeavor already characterized by a pronounced lack of competition and by the preponderance of sole-source database providers. They show that, under both the existing and proposed sui generis regimes, most commercially valuable compilations of data will never enter the public domain, despite the "Limited Times" Clause of the U.S. Constitution; that the dependence of the scientific and educational commnunities on plentiful and affordable supplies of data has been virtually ignored, despite the constitutional mandate to promote the progress of science and [the) useful arts;"and that the very existence of value-adding use industries in this sector would be jeopardized, notwithstanding the Supreme Court's procompetitive mandate in Feist and Bonito Boats. For these and other reasons, the proposed regimes to protect investments in databases-though requiring no creative achievement as a precondition of eligibility-have paradoxically applied one of the strongest and most anti-competitive intellectual property rights ever conceived to the elementary particles and building blocks of knowledge. The Authors re-examine the economic and legal justifications for providing investors in information goods with a measure of artificial lead time that would enable them to recuperate their investments and turn a profit in a digitized environment. They conclude that a weak intellectual property right-consistent with first amendment values and with other constitutional constraints-could overcome the risk of market failure without creating legal barriers to entry. To this end, they propose two alternative models, one based on simple unfair competition principles, and the other on a more refined set of default liability principles. Either model could increase the level of investment in the production and distribution of databases, while stimulating, rather than discouraging, the formation of more competitive market segments. The Article ends with a detailed analysis of the exceptions and other measures favoring science and education that will become indispensable under any sui generis regime protecting the contents of databases if the United States is not to jeopardize it pre-eminent role in basic science and the downstream technological innovation to which it gives rise. J.H. Reichman* Pamela Samuelson** I. INTRODUCTION The international intellectual property system founded on the Paris and Berne Conventions in the late nineteenth century' has been dominated by the patent and copyright paradigms, which articulate the legal protection of technological inventions and of literary and artistic works, respectively. Although this patent-copyright dichotomy was never as strictly observed abroad as in the United States,2 it nonetheless charted a relatively clear theoretical line of demarcation between legal incentives to create and the public interest in free competition.3 Any publicly disclosed technologies or information products that failed to meet the eligibility requirements of the domestic patent and copyright laws became public domain matter that anyone could freely appropriate. …

Behavioral Law and Economics: Behavioral Economic Analysis of Redistributive Legal Rules

Abstract: I. INTRODUCTION "Behavioral law and economics"-the general topic of this Symposium-seeks to bring together "behavior" and "law and economics." Law and economics (without the modifier) is of course already about behavior. But it is typically about behavior of a particular sort: highly "rational" (in a particular sense of that term), optimizing behavior. Sometimes it is reasonable to assume that people behave in this manner; other times it is not.l The "behavioral" in "behavioral law and economics" is about infusing law and economics with insights into actual (rather than hypothesized) human behavior when such insights are needed to insure sound predictions or prescriptions about law. Behavioral law and economics is not a critique of law and economics. It shares with that approach to the law the view that human behavior is organized by predictable patterns, which enable the analyst to generate models (often formal ones) and testable hypotheses about the effects of legal rules. And it shares the view that such analysis is an important and valuable pursuit, one most worthy of legal scholars' attention. Where it disagrees with conventional law and economics is about the shape of the predictable patterns of human behavior. Its goal is to offer better predictions and prescriptions about law based on improved accounts of how people actually behave. This Essay offers a behavioral economic analysis of redistributive legal rules. Redistributive legal rules are rules chosen for their effects in shifting wealth from high-income to low-income individuals (progressive redistribution). The desirability of such rules has been the subject of intense debate within the legal community. Many law and economics scholars have urged that legal rules be chosen solely with an eye towards Kaldor-Hicks efficiency (which I will call simply "efficiency" for the remainder of this Essay); these scholars often urge that distributional considerations be addressed (if they are to be addressed at all) exclusively through the tax and welfare systems.2 On this view, distributive goals do not provide a basis for choosing an inefficient legal rule-although they might, it seems, provide a basis for choosing between two efficient rules.3 Other legal scholars have argued that the selection of legal rules should be informed by distributional considerations even at the expense of efficiency.4 I will call a rule "redistributive" if it makes such a trade-off between distributive objectives and efficiency. A recurring theme in the debate over redistributive legal rules has been the relative cost of redistributing wealth through legal rules (defined to mean rules other than those that directly relate to the tax and welfare systems) and redistributing wealth through the tax and welfare systems (which I will call simply "the tax system" or "taxes" for the remainder of this Essay). Under the assumptions of neoclassical economics, any desired level of redistribution can be achieved at lower cost through the tax system than through legal rules.5 This is not because the tax system can redistribute wealth costlessly; the animating feature of both lawyers' and economists' analyses of tax schemes is their potential to distort people's work incentives. Higher taxes on the wealthy will tend to discourage people from earning high incomes. But from the perspective of neoclassical economics, precisely the same is true of redistributive legal rules: "[U]sing legal rules to redistribute income distorts work incentives fully as much as the income tax system-because the distortion is caused by the redistribution itself...'6 Thus, for example, a thirty percent marginal tax rate, together with an inefficient legal rule that redistributes an average of one percent of high earners' income to the poor, creates the same distortion in work incentives as a thirty-one percent marginal tax rate coupled with an efficient, non-redistributive legal rule.7 However, the former regime also entails costs due to the inefficient legal rule. …