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Vanderbilt Law Review

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Full-Text Articles in Law

Duty And Diversity, Chris Brummer, Leo E. Strine, Jr. Jan 2022

Duty And Diversity, Chris Brummer, Leo E. Strine, Jr.

Vanderbilt Law Review

In the wake of the brutal deaths of George Floyd and Breonna Taylor, lawmakers and corporate boards from Wall Street to the West Coast have introduced a slew of reforms aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet the reforms face difficulties ranging from possible constitutional challenges to critical limitations in their scale, scope, and degree of legal obligation and practical effects.

In this Article, we provide an old answer to the new questions facing DEI policy and offer the first close examination of how corporate law duties impel and facilitate corporate attention to diversity. Specifically, we …


Unauthorized And Unwise: The Lawful Use Requirement In Trademark Law, Robert A. Mikos Jan 2022

Unauthorized And Unwise: The Lawful Use Requirement In Trademark Law, Robert A. Mikos

Vanderbilt Law Review

For decades, the United States Patent and Trademark Office (“PTO”) has required trademark owners to comply with sundry nontrademark laws governing the sale of their trademarked goods and services. Pursuant to this “lawful use requirement,” the Agency has refused or even cancelled registration of thousands of marks used on everything from Schedule I controlled substances to mislabeled soap. This Article subjects the Agency’s lawful use requirement to long-overdue scrutiny. It suggests that in requiring compliance with other laws for registration, the PTO has lost sight of the one statute it is supposed to administer. In the process, the Agency has …


Preliminary Damages, Gideon Parchomovsky, Alex Stein Jan 2022

Preliminary Damages, Gideon Parchomovsky, Alex Stein

Vanderbilt Law Review

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well-off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource-constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing …


Local Power, Alexandra B. Klass, Rebecca Wilton Jan 2022

Local Power, Alexandra B. Klass, Rebecca Wilton

Vanderbilt Law Review

This Article is about “local power.” We use that term in two distinct but complementary ways. First, local power describes the authority of local governments to enact regulatory policies in the interests of their citizens. Second, local power describes the authority of local governments to exercise proprietary control over the sources and delivery of electric power to their citizens. This dual meaning of local power is particularly important today, as an increasing number of local governments are seriously considering “municipalizing”--taking control of local electric power systems-—at the same time that, outside the electric power sector, many states are constraining local …


Using Noerr-Pennington Doctrine’S Sham Exception To Challenge Abusive Patent Tactics By Pharmaceutical Companies, Lisa Orucevic Jan 2022

Using Noerr-Pennington Doctrine’S Sham Exception To Challenge Abusive Patent Tactics By Pharmaceutical Companies, Lisa Orucevic

Vanderbilt Law Review

Outrageous drug prices have dominated news coverage of the American healthcare system for years. Yet despite widespread condemnation of skyrocketing drug prices, nothing seems to change. Pharmaceutical companies can raise drug prices with impunity because they hold patents on their drugs, which give them monopolies. These monopolies are only supposed to last twenty years, and then competing lower-cost drugs like generics can enter the market, driving down the costs of pharmaceuticals for all. But pharmaceutical companies have created “patent thickets,” dense webs of overlapping patents surrounding one drug, which have artificially extended the companies’ monopolies for years or even decades …


Dynamic Corporate Purpose: Decentralizing The Choice Over Director Orientation, Fields Pierce Jan 2022

Dynamic Corporate Purpose: Decentralizing The Choice Over Director Orientation, Fields Pierce

Vanderbilt Law Review

The debate over corporate purpose has turned into a “gordian knot” where parties with entrenched beliefs about what the corporation should or should not be within society refuse to waver. There are inherent flaws with the governance models proposed by academics, politicians, and practitioners alike, so a novel method for setting and maintaining corporate purpose is required. This Note asks why there must be a one-size-fits-all approach to purpose and proposes a solution: dynamic corporate purpose.

This Note argues that states should not mandate all corporations hold the same corporate purpose but instead should use the logic of the public …


Underwater Mortgages For Underwater Homes: The Elimination Of Signals In The Coastal Lending Market, Peyton J. Klein Oct 2021

Underwater Mortgages For Underwater Homes: The Elimination Of Signals In The Coastal Lending Market, Peyton J. Klein

Vanderbilt Law Review

Climate change and sea level rise threaten to increase the default risk of mortgages on homes in coastal areas. Faced with this reality, small coastal lenders have begun selling more climate-sensitive mortgages to Fannie Mae and Freddie Mac, thereby transferring the risk of climate-induced default off the lenders’ books. Fannie Mae and Freddie Mac play a crucial role in supporting America’s mortgage finance system by purchasing qualifying private home loans, packaging them into investable security pools, and guaranteeing timely payment of principal and interest to outside investors. Through selling mortgages to Fannie Mae and Freddie Mac, lenders can use their …


Praxis And Paradox: Inside The Black Box Of Eviction Court, Lauren Sudeall, Daniel Pasciuti Oct 2021

Praxis And Paradox: Inside The Black Box Of Eviction Court, Lauren Sudeall, Daniel Pasciuti

Vanderbilt Law Review

In the American legal system, we typically conceive of legal disputes as governed by specific rules and procedures, resolved in a formalized court setting, with lawyers shepherding both parties through an adversarial process involving the introduction of evidence and burdens of proof. The often-highlighted exception to this understanding is the mass, assembly-line processing of cases, whether civil or criminal, in large, urban, lower-level courts. The gap left unfilled by either of these two narratives is how “court” functions for the average unrepresented litigant in smaller and nonurban jurisdictions across the United States.

For many tenants facing eviction, elements of the …


The People's Ledger: How To Democratize Money And Finance The Economy, Saule T. Omarova Oct 2021

The People's Ledger: How To Democratize Money And Finance The Economy, Saule T. Omarova

Vanderbilt Law Review

The COVID-19 crisis underscored the urgency of digitizing sovereign money and ensuring universal access to banking services. It pushed two related ideas—the issuance of central bank digital currency and the provision of retail deposit accounts by central banks-—to the forefront of the public policy debate. To date, however, the debate has not produced a coherent vision of how democratizing access to central bank money would—and should—transform and democratize the entire financial system. This lack of a systemic perspective obscures the enormity of the challenge and dilutes our ability to tackle it.

This Article takes up that challenge. It offers a …


Why Supervise Banks? The Foundations Of The American Monetary Settlement, Lev Menand May 2021

Why Supervise Banks? The Foundations Of The American Monetary Settlement, Lev Menand

Vanderbilt Law Review

Administrative agencies are generally designed to operate at arm’s length, making rules and adjudicating cases. But the banking agencies are different: they are designed to supervise. They work cooperatively with banks and their remedial powers are so extensive they rarely use them. Oversight proceeds through informal, confidential dialogue.

Today, supervision is under threat: banks oppose it, the banking agencies restrict it, and scholars misconstrue it. Recently, the critique has turned legal. Supervision’s skeptics draw on a uniform, flattened view of administrative law to argue that supervision is inconsistent with norms of due process and transparency. These arguments erode the intellectual …


Democracy On A Shoestring, Joshua S. Sellers, Roger Michalski May 2021

Democracy On A Shoestring, Joshua S. Sellers, Roger Michalski

Vanderbilt Law Review

Democracy requires money. Voters must be registered, voting rolls updated, election dates advertised, voting technology purchased and tested, poll workers trained, ballots designed, votes counted and verified, and on and on. Despite the importance of election expenditures, we have a shamefully inadequate amount of information about how much our elections cost. This Article, based on a novel and painstakingly hand-coded dataset, provides much needed information on election expenditures across multiple years from four states: California, Arizona, Texas, and Florida. These states, given their unique characteristics, provide a compelling sample set.

In what we believe to be a completely novel approach …


Jails, Sheriffs, And Carceral Policymaking, Aaron Littman May 2021

Jails, Sheriffs, And Carceral Policymaking, Aaron Littman

Vanderbilt Law Review

The machinery of mass incarceration in America is huge, intricate, and destructive. To understand it and to tame it, scholars and activists look for its levers of power—where are they, who holds them, and what motivates them? This much we know: legislators criminalize, police arrest, prosecutors charge, judges sentence, prison officials confine, and probation and parole officials manage release.

As this Article reveals, jailers, too, have their hands on the controls. The sheriffs who run jails—along with the county commissioners who fund them—have tremendous but unrecognized power over the size and shape of our criminal legal system, particularly in rural …


Private Offerings In The Age Of Surveillance Capitalism And Targeted Advertising, Christina M. Claxton May 2021

Private Offerings In The Age Of Surveillance Capitalism And Targeted Advertising, Christina M. Claxton

Vanderbilt Law Review

Social media platforms, as well as the internet more broadly, have fundamentally altered many aspects of modern life. In particular, platforms’ targeted advertising mechanisms have revolutionized how companies reach consumers by providing advertisers more effective tools for reaching consumers and by tailoring content to consumers’ individual interests. Advertising, in many respects, has always been targeted—it has always sought to reach and influence a certain set of consumers. Today’s targeted advertising, however, allows advertisers to influence consumer behavior on an increasingly granular and intimate level, further skewing the power imbalance between advertisers and consumers. This new dynamic, together with changes to …


Police Arbitration, Stephen Rushin May 2021

Police Arbitration, Stephen Rushin

Vanderbilt Law Review

Before punishing an officer for professional misconduct, police departments often provide the officer with an opportunity to file an appeal. In many police departments, this appeals process culminates in a hearing before an arbitrator. While numerous media reports have suggested that arbitrators regularly overturn or reduce discipline, little legal research has comprehensively examined the outcomes of police disciplinary appeals across the United States.

In order to better understand the use of arbitration in police disciplinary appeals and build on prior research, this Article draws on a dataset of 624 arbitration awards issued between 2006 and 2020 from a diverse range …


The Duty To Update Corporate Emissions Pledges, Nathan Campbell May 2021

The Duty To Update Corporate Emissions Pledges, Nathan Campbell

Vanderbilt Law Review

Facing both internal and external market pressures, a rapidly growing number of private companies are making public, voluntary, and ambitious pledges to reduce or outright eliminate by a certain date or benchmark their greenhouse gas emissions. Yet, ambition and necessity notwithstanding, nonfulfillment of these emission reduction targets (“ERTs”) is a looming, if not an already realized, concern for markets, which are noticeably and increasingly attuned to the long-term value and climate performance of companies. In the absence of a comprehensive disclosure regime for climate performance and risk, this Note highlights the duty to update—a judicial doctrine that polices forward-looking statements, …


Creditors, Keepers: Passive Retention Of Estate Property And The Automatic Stay, Caitlin M. Mcauliffe Apr 2021

Creditors, Keepers: Passive Retention Of Estate Property And The Automatic Stay, Caitlin M. Mcauliffe

Vanderbilt Law Review

The automatic stay provision is one of the most important provisions in the Bankruptcy Code. Until recently, however, it has remained unclear if passive retention of property of the bankruptcy estate must be immediately turned over to the debtor under the automatic stay provision. The Supreme Court decided in City of Chicago v. Fulton that passive retention does not violate the automatic stay, saving creditors from the consequences of retaining estate property. The debate about the stay, however, is far from over. Many circuit courts were already concerned about the policy issues deriving from the City of Chicago maintaining possession …


The Quick (Spending) And The Dead: The Agency Costs Of Forever Philanthropy, Brian Galle Apr 2021

The Quick (Spending) And The Dead: The Agency Costs Of Forever Philanthropy, Brian Galle

Vanderbilt Law Review

American philanthropic institutions control upwards of a trillion dollars of wealth. Because contributions to these entities are deductible from both income and estate taxes, and the entities’ earnings are tax-free, that trillion dollars is heavily underwritten by contemporary taxpayers. Law offers little assurance that those who pay will be those who benefit. To the contrary, since these subsidies become more valuable the longer charitable assets are left unspent, the law strongly encourages philanthropies to save rather than spend, even in situations of great current need. Other legal rules further encourage grantmaking institutions to strive to exist “in perpetuity.”

This Essay …


The Loudest Voice At The Supreme Court: The Solicitor General’S Dominance Of Amicus Oral Argument, Darcy Covert, Annie J. Wang Apr 2021

The Loudest Voice At The Supreme Court: The Solicitor General’S Dominance Of Amicus Oral Argument, Darcy Covert, Annie J. Wang

Vanderbilt Law Review

The Solicitor General (“SG”) is often called the “Tenth Justice,” a title that captures his unique relationship with the Supreme Court and his independence from the executive branch. No phenomenon better reflects this relationship than the Court’s practice of permitting amici to participate in oral argument. Although amicus oral argument is nominally available to all litigants, the modern Court grants this privilege almost exclusively to the SG. Scholars and Court watchers have long argued that this practice is justified because the SG uses it to pursue the rule of law and an objective sense of “justice.”

This Article challenges that …


The Shadows Of Litigation Finance, Suneal Bedi, William C. Marra Apr 2021

The Shadows Of Litigation Finance, Suneal Bedi, William C. Marra

Vanderbilt Law Review

Litigation finance is quickly becoming a centerpiece of our legal system. Once a dispute arises, litigants may seek money from third-party financiers to pay their legal bills or monetize their claims, and in turn those financiers receive a portion of any case proceeds. Yet policymakers are struggling with how to evaluate and regulate litigation finance. There are two problems. The first is an awareness problem. Some commentators consider litigation finance “likely the most important development in civil justice of our time,” but others have hardly heard of it. As a result, many policymakers do not quite understand what litigation finance …


Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset Apr 2021

Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset

Vanderbilt Law Review

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we have misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not …


Make Hay While The Sun Shines: Private Equity And The False Claims Act, Gregory F. Maczko Apr 2021

Make Hay While The Sun Shines: Private Equity And The False Claims Act, Gregory F. Maczko

Vanderbilt Law Review

For years, the federal government has used the False Claims Act to police fraud in the healthcare industry. Every year, the Department of Justice recovers billions of dollars from healthcare companies for their False Claims Act violations, both penalizing wrongdoers and providing incentives for whistleblowers to come forward. Over the past decade, however, private equity activity within the healthcare industry has increased significantly, presenting questions as to how the False Claims Act applies when a private equity firm’s portfolio company is accused of wrongdoing. This Note analyzes the ambiguity in how different courts have previously applied the False Claims Act …


The Library Of Babel For Prior Art: Using Artificial Intelligence To Mass Produce Prior Art In Patent Law, Lucas R. Yordy Mar 2021

The Library Of Babel For Prior Art: Using Artificial Intelligence To Mass Produce Prior Art In Patent Law, Lucas R. Yordy

Vanderbilt Law Review

Artificial intelligence is playing an increasingly important role in the invention and innovation processes of our society. To date, though, much of the academic discussion on the interaction of artificial intelligence and the patent system focuses on the patentability of inventions produced by artificial intelligence. Little attention has been paid to organizations that are seeking to use artificial intelligence to defeat the patentability of otherwise patent-worthy inventions by mass producing prior art. This Note seeks to highlight the consequences of allowing mass-produced, AI-generated prior art to render valuable inventions unpatentable. Specifically, this Note concludes that AI-generated prior art decreases the …


Presidential Control Of Elections, Lisa M. Manheim Mar 2021

Presidential Control Of Elections, Lisa M. Manheim

Vanderbilt Law Review

In recent decades, presidents of both political parties have asserted increasingly aggressive forms of influence over the administrative state. During this same period, Congress has expanded the role that the federal government plays in election administration. The convergence of these two trends leads to a troubling but underexamined phenomenon: presidential control of elections. Relying on their official powers, presidents have the ability to affect the rules that govern elections, including elections meant to check and legitimize presidential powers in the first place. This self-serving arrangement heightens the risk of harms from political entrenchment and subordination of expertise. These harms, in …


Chevron Is A Phoenix, Lisa Schultz Bressman, Kevin M. Stack Mar 2021

Chevron Is A Phoenix, Lisa Schultz Bressman, Kevin M. Stack

Vanderbilt Law Review

Judicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details or default to judicial determinations. It also recognizes that interpretation under regulatory statutes is intertwined with implementation of those statutes. Prior to the famous decision in Chevron, the Supreme Court had long regarded judicial deference as a foundational principle of administrative law. It grew up with the administrative state alongside other foundational administrative law principles. In Chevron, the …


Deterring Algorithmic Manipulation, Gina-Gail S. Fletcher Mar 2021

Deterring Algorithmic Manipulation, Gina-Gail S. Fletcher

Vanderbilt Law Review

Does the existing anti-manipulation framework effectively deter algorithmic manipulation? With the dual increase of algorithmic trading and the occurrence of “mini-flash crashes” in the market linked to manipulation, this question has become more pressing in recent years. In the past thirty years, the financial markets have undergone a sea change as technological advancements and innovations have fundamentally altered the structure and operation of the markets. Key to this change is the introduction and dominance of trading algorithms. Whereas initial algorithmic trading relied on preset electronic instructions to execute trading strategies, new technology is introducing artificially intelligent (“AI”) trading algorithms that …


Measuring Semantic Relatedness: A Proposal For A New Textual Tool, Katherine A. Cohen Mar 2021

Measuring Semantic Relatedness: A Proposal For A New Textual Tool, Katherine A. Cohen

Vanderbilt Law Review

Judicial decisions, statutes, constitutions, sentencing guidelines, and ERISA-related documents have at least one thing in common: at a molecular level, the laws are all composed of words. The scientific study of linguistics, particularly the field of semantics, analyzes what words mean and how they are connected with each other. And yet, thus far, the legal field has taken little notice of academic and technological breakthroughs in the field of linguistic semantics. This Note seeks to highlight the potential utility of linguistic semantic tools in interpreting legal texts. Specifically, applying algorithms to a free online lexical database allows anyone with a …


Data Autonomy, Cesare Fracassi, William Magnuson Mar 2021

Data Autonomy, Cesare Fracassi, William Magnuson

Vanderbilt Law Review

In recent years, “data privacy” has vaulted to the forefront of public attention. Scholars, policymakers, and the media have, nearly in unison, decried the lack of data privacy in the modern world. In response, they have put forth various proposals to remedy the situation, from the imposition of fiduciary obligations on technology platforms to the creation of rights to be forgotten for individuals. All these proposals, however, share one essential assumption: we must raise greater protective barriers around data. As a scholar of corporate finance and a scholar of corporate law, respectively, we find this assumption problematic. Data, after all, …


The Personification Of The Partnership, Harwell Wells Jan 2021

The Personification Of The Partnership, Harwell Wells

Vanderbilt Law Review

What does it mean to say a business association is a legal person? The question has shadowed the law of business organizations for at least two centuries. When we say a business is a legal person we may be claiming that the law distinguishes its assets, liabilities, and obligations from those of its owners; or that it has a “real will” and personality apart from its owners; or that it in some way can carry or assert rights generally ascribed to natural persons. This Article sheds new light on these old questions by looking at an oft-overlooked business form, the …


Rethinking Swing Voters, Jonathan S. Gould Jan 2021

Rethinking Swing Voters, Jonathan S. Gould

Vanderbilt Law Review

In recent decades, swing voters in courts and legislatures have made many of the United States’ most important decisions of law and policy. It would be easy to conclude from the recent history of the Supreme Court and Congress that democracy or majority rule inevitably entails placing many of a society’s most important decisions in the hands of swing voters. Far from being inevitable, however, swing voters result from a highly contingent set of circumstances, both ideological and institutional.

This Article probes these contingencies, describing and evaluating swing voters and the power they hold. It first explains the conditions under …


Evisceration Of The Right To Appeal: Denial Of Individual Responsibility As Actionable Genocide Denial, Jennifer E. King Jan 2021

Evisceration Of The Right To Appeal: Denial Of Individual Responsibility As Actionable Genocide Denial, Jennifer E. King

Vanderbilt Law Review

Tensions arise during litigation in the international criminal justice system between the practice of the international criminal tribunals, domestic laws, and policy decisions of United Nation (“UN”) Member States. One such tension arises between domestic genocide denial laws, which typically criminalize denial of genocide as a strict liability offense, and the preservation of due process for persons convicted of genocide seeking appeal. In theory, denying individual responsibility during the appeal of a conviction by an international tribunal could constitute punishable genocide denial under some domestic laws. This criminalization of the appeal process would violate the due process rights of international …