Law Commons^™

Risk-Seeking Governance, Brian J. Broughman -- Professor Of Law, Matthew T. Wansley -- Assoc. Professor Of Law

Vanderbilt Law Review

Venture capitalists (“VCs”) are increasingly abandoning their traditional role as monitors of their portfolio companies. They are giving startup founders more equity and control and promising not to replace them with outside executives. At the same time, startups are taking unprecedented risks—defying regulators, scaling in unsustainable ways, and racking up billion-dollar losses. These trends raise doubts about the dominant model of VC behavior, which claims that VCs actively monitor startups to reduce the risk of moral hazard and adverse selection. We propose a new theory in which VCs use their role in corporate governance to persuade risk-averse founders to pursue …

Globalize Me: Regulating Distributed Ledger Technology, Roee Sarel, Hadar Y. Jabotinsky, Israel Klein

Vanderbilt Journal of Transnational Law

Distributed Ledger Technology (DLT)—the technology underlying cryptocurrencies—has been identified by many as a game-changer for data storage. Although DLT can solve acute problems of trust and coor- dination whenever entities (e.g., firms, traders, or even countries) rely on a shared database, it has mostly failed to reach mass adoption out- side the context of cryptocurrencies.

A prime reason for this failure is the extreme state of regulation, which was largely absent for many years but is now pouring down via uncoordinated regulatory initiatives by different countries. Both of these extremes—under-regulation and over-regulation—are consistent with traditional concepts from law and economics. …

Globalize Me: Regulating Distributed Ledger Technology, Roee Sarel, Hadar Y. Jabotinsky, Israel Klein

Vanderbilt Journal of Transnational Law

Distributed Ledger Technology (DLT)—the technology underlying cryptocurrencies—has been identified by many as a game-changer for data storage. Although DLT can solve acute problems of trust and coor- dination whenever entities (e.g., firms, traders, or even countries) rely on a shared database, it has mostly failed to reach mass adoption outside the context of cryptocurrencies.

A prime reason for this failure is the extreme state of regulation, which was largely absent for many years but is now pouring down via uncoordinated regulatory initiatives by different countries. Both of these extremes-—under-regulation and over-regulation—-are consistent with traditional concepts from law and economics. Specifically, …

To Spac Or Not To Spac: Liberalizing The Regulation Of Capital Markets, Allison N. Swecker

Vanderbilt Journal of Transnational Law

The merger and acquisition world has experienced an uptick in deal flow since 2016, reaching unprecedented levels in 2020 due to enhanced private equity funding and market volatility. While the market volatility spurred by COVID-19 halted traditional initial public offerings (IPOs), the special purpose acquisition company (SPAC) market exploded. The flurry of SPAC activity in the United States triggered the development of SPAC markets worldwide. Unfortunately, SPACs’ great rise to fame in the past few years has come at a cost-—fraud. As such, the US Securities and Exchange Commission (SEC) is left grappling with how to best regulate the market …

Efficiency And Equity In Regulation, Caroline Cecot

Vanderbilt Law Review

The Biden Administration has signaled an interest in ensuring that regulations appropriately benefit vulnerable and disadvantaged communities. Prior presidential administrations since at least the Reagan Administration have focused on ensuring that regulations are efficient, maximizing the net benefits to society as a whole, without considering who benefits or who loses from these policies. Critics of this process of regulatory review have celebrated President Biden’s initiative, hoping that distributional analysis and the pursuit of equity will displace traditional tools and interests such as cost-benefit analysis and the pursuit of efficiency. Meanwhile, supporters of the current process are concerned that pursuing equity …

Sovereignty 2.0, Anupam Chander, Haochen Sun

Vanderbilt Journal of Transnational Law

Digital sovereignty-the exercise of control over the internet-is the ambition of the world's leaders, from Australia to Zimbabwe, seen as a bulwark against both foreign states and foreign corporations. Governments have resoundingly answered first-generation internet law questions of who, if anyone, should regulate the internet. The answer: they all will. Governments now confront second-generation questions--not whether, but how to regulate the internet. This Article argues that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy's dreaded antagonist. As international law scholar Louis Henkin taught, sovereignty can insulate a government's worst ills from foreign intrusion. Assertions of digital …

Regulating Data Breaches: A Data Superfund Statute, Kyle Mckibbin

Vanderbilt Journal of Entertainment & Technology Law

Collecting and processing large amounts of personal data has become a fundamental feature of the modern economy. Personal data, combined with good data analytics, are valuable to businesses as they can provide highly detailed information about individual preferences and behaviors. This data collection can also be valuable to the consumer as it generates innovative products and digital platforms. The era of big data promises great rewards, but it is not without its costs. Data breaches, or the release of personal data into unwanted hands, are pervasive and increasingly massive in scale. Despite the personal privacy harm caused by data breaches, …

Regulating Social Media In The Global South, Zahra Takhshid

Vanderbilt Journal of Entertainment & Technology Law

In recent years, the disinformation crisis has made regulating social media platforms a necessity. The consequences of disinformation campaigns are not only limited to election interferences or political debates, but have also included fatal consequences. In response, scholars have generally focused on regulating social media companies in the United States without paying much attention to these companies’ global impact, particularly in the Global South. Lost in the quest to fight disinformation is addressing the social media companies’ neglect of consumer rights in the Global South.

Countries in the Global North, such as the United States, have the power to regulate …

Zombie Energy Laws, Joshua C. Macey

Vanderbilt Law Review

This Article traces the development of three legal rules—cost recovery for vertically integrated utilities, the requirement that regulators assess the financial viability of energy projects before issuing a certificate of public convenience and necessity, and the filed rate doctrine—that emerged out of the view that electric power companies should be shielded from market forces. It argues that important elements of these legal rules have become “zombie energy laws.” Zombie energy laws are statutes, regulations, and judicial precedents that continue to apply after their underlying economic and legal bases dissipate. Zombie energy laws were originally designed to protect consumers by, among …

The Waiting Game: How States Can Solve The Organ-Donation Crisis, Meredith M. Havekost

Vanderbilt Law Review

Thousands of patients in the United States live in limbo every day waiting for a lifesaving organ transplant, and the gap between the number of people who need a transplant and the number of available organs widens every year. Every state currently allows individuals to unilaterally indicate their intent to donate their organs upon death, but in practice, family members are frequently allowed to override the express intentions of decedents. In addition, the current U.S. "opt-in" system fails to reach its full potential because many eligible decedents never express their desires to become or not to become organ donors, and …

Corporate Cybersecurity: The International Threat To Private Networks And How Regulations Can Mitigate It, Eric J. Hyla

Vanderbilt Journal of Entertainment & Technology Law

Cyberattacks are occurring at an accelerating pace. Foreign nations are increasingly utilizing hacking as a tool for economic gain, acts of aggression, or international political expression. At risk are US consumers'personal data, private firms' bottom line, and the economies'integrity. In response, federal and state lawmakers have issued a series of disparate, uncoordinated policies seeking to strengthen cybersecurity practices. However, recent events indicate that these policies are less than ideal. This Note suggests that a unified response to cybersecurity is required and calls for the establishment of a single, central federal agency with authority over all cybersecurity regulations. Such an agency …

The Securities Black Market: Dark Pool Trading And The Need For A More Expansive Regulation Ats-N, Brian P. Baxter

Vanderbilt Law Review

Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve "substantive justice" and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims-are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions …

Nudging Robots: Innovative Solutions To Regulate Artificial Intelligence, Michael Guihot, Anne F. Matthew, Nicolas P. Suzor

Vanderbilt Journal of Entertainment & Technology Law

There is a pervading sense of unease that artificially intelligent machines will soon radically alter our lives in ways that are still unknown. Advances in artificial intelligence (AI) technology are developing at an extremely rapid rate as computational power continues to grow exponentially. Even if existential concerns about AI do not materialize, there are enough concrete examples of problems associated with current applications of AI to warrant concern about the level of control that exists over developments in this field. Some form of regulation is likely necessary to protect society from harm. However, advances in regulatory capacity have not kept …

Regulation Of Emerging Risks, Matthew T. Wansley

Vanderbilt Law Review

Why has the EPA not regulated fracking? Why has the FDA not regulated e-cigarettes? Why has NHTSA not regulated autonomous vehicles? This Article argues that administrative agencies predictably fail to regulate emerging risks when the political environment for regulation is favorable. The cause is a combination of administrative law and interest group politics. Agencies must satisfy high initial informational thresholds to regulate, so they postpone rulemaking in the face of uncertainty about the effects of new technologies. But while regulators passively acquire more information, fledgling industries consolidate and become politically entrenched. By the time agencies can justify regulation, the newly …

Sharing And The City, Michele Finck, Sofia Ranchordas

Vanderbilt Journal of Transnational Law

The sharing of public infrastructure, the exchange of small services, and the traditional "cup of sugar borrowed from the neighbor" are practices intrinsic to most urban agglomerations. In the digital age, these sharing initiatives are facilitated by online platforms such as Feastly, Peerby, and HomeExchange. These platforms allow city residents to share the idle capacity of some of their assets (e.g., clothing, tools, or a spare bedroom) with other residents living in close proximity to them, or with tourists looking for accommodation. While these practices can be justified by efficiency and sustainability concerns, some of them appear to be in …

Up In The Cloud: Finding Common Ground In Providing For Law Enforcement Access To Data Held By Cloud Computing Service Providers, Matthew Mckenna

Vanderbilt Journal of Transnational Law

Cloud computing is an everyday part of the modern world; a technology that is increasingly transcending international borders. Disregarding international borders allows cloud computing to operate more efficiently and thus provides better service to users. Yet, the global nature of cloud computing raises a question--what happens if multiple countries apply facially similar laws to cloud computing providers differently? This scenario is common, especially in the context of law enforcement seeking access to cloud computing data. The United States and the United Kingdom have similar laws regarding the government's ability to acquire users' data. Importantly, neither law explicitly addresses the question …

A Laboratory Of Regulation: The Untapped Potential Of The Hhs Advisory Opinion Power, Christopher J. Climo

Vanderbilt Law Review

Of late, the federal government's approach to regulation of hospitals and other healthcare providers asks them to do more with less. Both the government and private insurers have increasingly assigned hospitals and other providers with financial responsibility for the quality of the care they provide to federal beneficiaries.' At the same time, experts predict that reimbursement rates by both the government and private insurers will fall as a result of the Affordable Care Act's recent efforts to increase access to healthcare. Facing a widening gap between expectations of quality and availability of financial resources, healthcare providers will need to pursue …

Capturing The Transplant: U.S. Antitrust Law In The European Union, Silvia Beltrametti

Vanderbilt Journal of Transnational Law

The scholarly literature on the movement of legal norms focuses almost exclusively on transfers from one jurisdiction to another. It largely ignores transfers into new regulatory regimes. Drawing on a case study of the transplantation of U.S. antitrust law into the nascent entity that was to become the European Community, and analyzing its evolution from a public choice perspective, this Article suggests that transfers into new regulatory regimes are more likely to be effective when the lack of established institutions creates opportunities for stakeholders. The endorsement of a new law will enable stakeholders to influence its application and to capture …

Foreign Direct Investment In The United States And Canada: Fractured Neoliberalism And The Regulatory Imperative, Gil Lan

Vanderbilt Journal of Transnational Law

Although both Canada and the United States review foreign investment for national security concerns, Canada also requires that the investment be of "net benefit" to Canada. Recent investments by state-owned enterprises (SOEs) and sovereign wealth funds (SWFs) have prompted the suggestion that the United States should also adopt a net benefit or economic test. This Article argues that the United States should not adopt the Canadian approach. The Canadian approach attempts to screen out foreign public entities and requires that they act in a "commercial" manner. This approach is based on two assumptions. First, it assumes that one can segregate …

Trends In Global Nanotechnology Regulation: The Public-Private Interplay, Reut Snir

Vanderbilt Journal of Entertainment & Technology Law

Over the last decade, concerns regarding potential exposure to nano materials gave rise to substantial new regulation intended to ensure safe development of nanotechnology applications. This Article examines the resultant regulatory system through empirical analysis of trends and patterns in global development of nanotechnology regulatory initiatives. It argues that rather than a government-driven process, it was private actors who set the regulatory wheels in motion. This Article shows that under conditions of scientific uncertainty, governments lacking technical and scientific knowledge to support risk-based regulation often leave a regulatory void. Consequently, businesses apply self-risk-management strategies to fill the gap, leading the …

Did Trinko Really Kill Antitrust Price Squeeze Claims?, Caroline C. Rudaz

Vanderbilt Journal of Transnational Law

This Article presents a critical analysis of the Linkline case that refuses to recognize price squeeze claims as antitrust claims under § 2 of the Sherman Act. It argues that Linkline gives a distorted reading of Trinko without giving proper attention to the application of § 2 of the Sherman Act. The Linkline decision takes a dogmatic position and thus, while refuting the Alcoa decision, appears to be a missed opportunity to more precisely define price squeezing.

This Article offers a comparison between the U.S. Supreme Court's decision and the recent European decisions delivered in broadband access cases that are …

Wine Wars: How We Have Painted Ourselves Into A Regulatory Corner, Rachel M. Perkins

Vanderbilt Journal of Entertainment & Technology Law

A private citizen can violate the Constitution in two ways. The first is by enslaving another person, an atrocious act that should be proscribed by the highest law in the land. The second is by transporting alcohol across a state line in violation of the laws of that state. The two actions are hardly of the same magnitude.

The history of alcohol regulation has been a litany of failed attempts--on both the state and federal levels. Each new layer of legislation created additional problems. Most are familiar with the infamy of Prohibition, the federal ban on the manufacture or sale …

The "Spiritual Temperature" Of Contemporary Popular Music, Tracy Reilly

Vanderbilt Journal of Entertainment & Technology Law

The purpose of this Article is to contribute to the volume of legal scholarship that focuses on popular music lyrics and their effects on children. This interdisciplinary cross-section of law and culture has been analyzed by legal scholars, philosophers, and psychologists throughout history. This Article specifically focuses on the recent public uproar over the increasingly violent and lewd content of death-metal and gangsta-rap music and its alleged negative influence on children. Many legal scholars have written about how legal and political efforts throughout history to regulate contemporary genres of popular music in the name of the protection of children's morals …

A First Amendment For Second Life: What Virtual Worlds Mean For The Law Of Video Games, Marc J. Blitz

Vanderbilt Journal of Entertainment & Technology Law

In the first decade of the twenty-first century, video games have finally taken their place alongside movies, comic books, and drawings as a form of protected First Amendment speech. Since the Seventh Circuit's 2001 decision in American Amusement Machine Association v. Kendrick, court after court has struck down ordinances and statutes aimed at restricting violent video games--on the grounds that such violate game designers' and players' First Amendment speech rights. This series of rulings marks a stark change from courts' previous stance on video games, which consigned them to the same realm of unprotected non-speech conduct as games like tennis, …

Managing Manure: Using Good Neighbor Agreements To Regulate Pollution From Agricultural Production, Tory H. Lewis

Vanderbilt Law Review

In an episode of the popular television series Seinfeld, George Costanza narrowly avoids stepping in a pile of horse manure and emphatically declares, "[M]anure's not that bad. I don't even mind the word 'manure.' You know, it's, it's 'nure,' which is good and a 'ma' in front of it. MA-NURE. When you consider the other choices, 'manure' is actually pretty refreshing."'

Not everyone shares George's enthusiasm for animal excrement. Agricultural waste has been a source of community distress for generations. In 1932, a California appellate court determined that a dairy, hog-raising, and cattle-raising operation constituted a nuisance under state law. …

Pornography, Coercion, And Copyright Law 2.0, Ann Bartow

Vanderbilt Journal of Entertainment & Technology Law

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their …

Voodoo Economics: A Look Abroad For A Supply-Side Solution To America's Campaign-Finance Riddle, Matthew T. Sanderson

Vanderbilt Journal of Transnational Law

The title of this Note "voodoo economics" is, at its core, an analogy: U.S. campaign-finance regulation operates like a price ceiling in the political money marketplace. Political campaigns are financed through money-for-access transactions and campaign-finance regulation caps the level of exchange. Like any other price ceiling, regulation is both effective and flawed. It suppresses the "price" of political money but inherently falls victim to some market players' avoidance activities. This price-ceiling analogy, among other things, makes apparent that many proposals forwarded by pro-regulation and deregulation advocates cannot solve the United States' century-old campaign-finance riddle. Instead, attention should turn to shaping …

Fast Food: Regulating Emergency Food Aid In Sudden-Impact Disasters, David Fisher

Vanderbilt Journal of Transnational Law

A rich and varied literature has grown up around food aid,' in particular with regard to its use as a development tool, in response to slow-onset disasters (such as droughts and desertification), and in armed conflicts. Given that these applications make up the bulk of the millions of tons of food aid recorded annually and present some of the thorniest operational issues, perhaps it is not surprising that the regulation of food aid provided in sudden-impact disasters (such as earthquakes, tsunamis, wind storms, and floods) has not been as thoroughly examined.

Still, while the amount of food involved is comparatively …

Food Safety, South-North Asymmetries, And The Clash Of Regulatory Regimes, Obijiofor Aginam

Vanderbilt Journal of Transnational Law

This Article explores the globalization of food safety concerns driven by the phenomenon of economic globalization, and the "legalization" of food safety disputes within the rules-based architecture of the World Trade Organization (WTO). Focusing on the interaction between WTO norms and the treaties of other multilateral organizations, the Article discusses the implications of the "clash of food safety regulatory regimes" for South-North asymmetrical relations between the rich and poor countries. The Article also discusses global economic diplomacy and the emerging WTO jurisprudence on the Agreement on Sanitary and Phyto-Sanitary Measures (SPS) disputes. This Article explores both the perceived and actual …

Calling All Angles: Perspectives On Regulating Internet Telephony, Melissa Winberg

Vanderbilt Journal of Entertainment & Technology Law

In 1996, Congress passed the Telecommunications Act, substantially revising the Communications Act of 1934 to reflect technological advances, including the Internet, and Congress's deregulatory goals. Currently, however, new technologies are challenging the viability of the statutory definitions and regulatory schemes of the statute. Internet telephony, commonly called Voice over Internet Protocol (VoIP), is both a replacement for traditional telephone service and a new web-based technology. Given the current competitive political climate and the magnitude of the interests involved, Congress is unlikely to succeed in altering the telecommunications regime. Thus, the Federal Communications Commission, which has the authority to regulate interstate …