Law Commons^™

Trump V. Tiktok, Anupam Chander

Vanderbilt Journal of Transnational Law

How did a Chinese big tech company beat the president of the United States? When then-President Donald Trump sought to ban TikTok, ostensibly because of its Chinese roots, US courts came to TikTok's rescue. Rather than deferring to the president's claims of a national security emergency justifying the ban, courts held that the president lacked statutory authority to ban TikTok. This Article chronicles the Trump administration's attempt to either ban TikTok or to compel its sale to a "very American" company, preferably one led by a political ally. The TikTok affair thus demonstrates what Harold Koh calls the National Security …

Fortifying American Emergency Power: A Multinational Comparison To Contain Crises, Courtney Devore

Vanderbilt Journal of Transnational Law

Countries will inevitably face emergencies. Historically, governments have exercised immense power in response to emergencies. For responses to be quick and effective, emergency power operates outside of the normal rule of law. While disbanding the normal rule of law may be necessary from time to time to protect national security, the unilateral ability of government to take such action creates perverse incentives to abuse the power. Abuses of emergency power are found across the globe, most notably occurring in the United States recently.

In the wake of the Trump Administration, this Note seeks to identify how and why the US …

International Investment And National Security Review, Ji Ma

Vanderbilt Journal of Transnational Law

National security is a pillar of international law. As long as sovereign states exert power within the international legal regime, national security will be an exception to international law. These security concerns also come to light in the international investment legal regime. The international investment legal regime provides for essential security exceptions, aiming at protecting host states' interests. This practice has been honored by international investment treaties and international investment tribunals. Although such exemption provisions can balance the interests between international investors and host states, they might be abused by host states in virtue of rising protectionism.

Today, with respect …

Hidden By Sovereign Shadows: Improving The Domestic Framework For Deterring State-Sponsored Cybercrime, Eric Blinderman, Myra Din

Vanderbilt Journal of Transnational Law

This Article analyzes the domestic legal framework applicable to state-sponsored cybercrime. The Article describes several instances where state sovereigns perpetrated cybercrimes in the United States. It then outlines the legal framework that the US government utilizes to hold accountable those who perpetrate such crimes. This Article argues that the current legal framework does not have a deterrence effect on sovereign states engaged in such activity and that prosecutors who seek to apply the current framework against state sovereigns or who misattribute the source of such attacks could negatively impact US foreign policy. To remedy these defects, this Article asserts that …

Unaccountable? The United Nations, Emergency Powers, And The Rule Of Law, Simon Chesterman

Vanderbilt Journal of Transnational Law

For a body committed to the rule of law in theory, the applicability of the rule of law to the United Nations in practice remains oddly unclear. This Article will not consider the personal responsibility of UN officials, who generally enjoy personal or functional immunity from legal process in the territories where they work. Rather the focus of this Article is on the quasi-constitutional question of the liability of the organization itself. As the United Nations has assumed more state-like functions-in particular through the coercive activities of its Security Council--the question of what limits exist on the powers thus exercised …

The Headscarf As Threat: A Comparison Of German And U.S. Legal Discourses, Robert A. Kahn

Vanderbilt Journal of Transnational Law

This Article compares how U.S. and German judges conceptualize the harm the headscarf poses to society. The examples are the 2003 Ludin case, in which the German Federal Constitutional Court held that the civil service, in the absence of state regulation, could not reject a woman from a civil service teaching position solely because she would not remove her headscarf while teaching, and State v. Freeman, in which a Florida court held that a woman could not pose for a driver's license photograph wearing a garment (the niqab) that covered all of her face except her eyes. While judges and …

Response Is Local, Relief Is Not: The Pervasive Impact Of Agro Terrorism, Asha M. George

Vanderbilt Journal of Transnational Law

Agro terrorism is a threat facing the public today. National response systems are not yet able to perform efficiently and effectively to address this threat. Any locality can be targeted, and the immediate response will come from local entities, regardless of how adequately prepared they are to respond. Knowing that acts of agro terrorism are both expected and feasible today, we must alter our prevention, deterrence, preparedness, detection, response, attribution, recovery, and mitigation programs and base them on a better understanding of the threat. There are a number of things we can do in advance of agro terrorism, none of …

Shining The Spotlight Of Pitiless Publicity On Foreign Lobbyists?, Charles Lawson

Vanderbilt Journal of Transnational Law

This note discusses the changes made to the Foreign Agents Registration Act (FARA) by the Lobbying Disclosure Act of 1995 (LDA) and evaluates the impact of those changes. FARA's regulatory regime has long been criticized for its loopholes. FARA's historical focus on foreign propagandists has also been condemned as out of step with the modern political environment in the United States, where foreign" lobbyists" are seen as a serious threat to government integrity. In response to such criticisms, the LDA endeavored to reform FARA so as to increase compliance levels among foreign lobbyists seeking to influence the U.S. political process. …

European Community Competition Law And National Competition Laws, Joachim Zekoll

Vanderbilt Journal of Transnational Law

This Article examines conflicts between the European Community (EC or Community) competition rules and the corresponding laws of the Federal Republic of Germany in three case categories. Professor Zekoll first discusses situations in which corporate practices or agreements violate EC law, but are considered legal under German law. He then analyzes frictions that may arise when both EC and German laws are violated. In both of these case categories, Community law prevails over conflicting solutions under German law. However, considerable doubt exists about the primacy of Community law with respect to the third category involving practices that violate German law, …

Foreign Relations And National Security Law, Stuart S. Malawer

Vanderbilt Journal of Transnational Law

"Foreign relations law" as it relates to foreign policy and national security is an area of specialization that has recently witnessed publication of two significant works. A third major publication has already appeared in final draft and is about to be printed. These publications evidence the growth of foreign relations law and validate it as a separate field of study. This distinct area of the law draws subjects from other areas, which are all too often given minimal attention, into a coherent course with a specific focus.

Foreign relations law should be the introductory course in international studies in law …

Review Essay: The Future Of National Security Export Controls, Donald H. Caldwell, Jr.

Vanderbilt Journal of Transnational Law

In calling for more narrowly focused controls, this study echoes the Bucy Report of 1976, one that called for restrictions on revolutionary rather than evolutionary technology.56 Yet more than a decade after that report was issued, United States export control lists are still weighted toward restricting all exports containing useful technology whether or not the export of an item would advance the capabilities of American adversaries to any degree.17 Unless industry leaders seize the opportunity to reduce the scope of national security export controls as Congress prepares to reauthorize the Export Administration Act, this report, like the Bucy Report before …

The Constitutionality Of The Foreign Intelligence Surveillance Act Of 1978, Judith B. Anderson

Vanderbilt Journal of Transnational Law

Within its more limited scope, the Belfield decision provides a helpful approach to FISA cases by articulating both a solid rationale for FISA's in camera, ex parte provision and a workable balancing approach for determining whether open proceedings may be necessary. The Falvey decision, although broader in scope, does not provide a satisfactory rationale for FISA's deviation from the traditional fourth amendment warrant requirement, nor does it articulate a workable approach to evaluating a FISA-warranted surveillance. The Falvey court, by predicating its upholding of FISA on an acceptance of the national security exception, may perpetuate a debate that the statute …

Recent Development--Panama Canal Treaties, David M. Himmelreich

Vanderbilt Journal of Transnational Law

Given its strategic interest in the Canal, it might well be asked why the United States would sign a Treaty which does not give an unambiguous right of intervention. Under the Treaty, the United States has at best only a weak legal justification for intervention, which will be useful in domestic politics should the popular opposition to "giving the Canal away" become critical, but which will be much less convincing elsewhere. World opinion is suspicious of the reliance of any great power on intervention, regardless of the legal rationale. The justification will be least persuasive in Latin America where there …

Espionage In Transnational Law, Leslie S. Edmondson

Vanderbilt Journal of Transnational Law

Traditionally, spies have been defined as "secret agents of a State sent abroad for the purpose of obtaining clandestinely information in regard to military or political secrets." Older authorities have stated emphatically that the gravamen of espionage is the employment of disguise or false pretense. Such deception has been the justification for visiting the severest of penalties upon the captured spy. Curiously, however, the employment of spies has not been considered reprehensible conduct. The refusal to officially acknowledge the commissioning of a spy operated to relieve the government of any responsibility either to the offended state or to the secret …

The Amending Of Articles 23 And 27 Of The United Nations Charter: A Mathematical Analysis, Robert S. Junn

Vanderbilt Journal of Transnational Law

From the time of the San Francisco Conference, the composition of the Security Council and its voting procedure was most severely criticized. The basic criticism had been the veto power of the five permanent members on substantive resolutions. This resulted in a long and vigorous political struggle on the part of the non-veto members of the Organization to amend the Charter in order to increase their voting strength in the Security Council. When the changes on membership and voting procedure came into force on August 31, 1965, a great victory was claimed. This case of the United Nations is intriguing …