Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Vanderbilt Law School Faculty Publications

Discipline
Keyword
Publication Year
File Type

Articles 1 - 30 of 1090

Full-Text Articles in Law

Ecosystem Services And Federal Public Lands: A Quiet Revolution In Natural Resources Management, J.B. Ruhl, James Salzman Apr 2020

Ecosystem Services And Federal Public Lands: A Quiet Revolution In Natural Resources Management, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

The major federal public land management agencies (the Forest Service, Bureau of Land Management, Park Service, Fish & Wildlife Service, and Department of Defense) have increasingly adopted a language that did not exist twenty- five years ago-the language of ecosystem services. Ecosystem services are the range of benefits that ecological re- sources provide to humans, from water purification and pollination to carbon sequestration and wildlife habitat. The scientific discipline advancing the ecosystem services frame- work arose in the mid-1990s and quickly became a central strategy for fusing ecology and economics research. Despite its ascendance in research communities, the recognition and conservation ...


Social Checks And Balances: A Private Fairness Doctrine, Michael P. Vandenbergh Apr 2020

Social Checks And Balances: A Private Fairness Doctrine, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Essay proposes a private standards and certification system to induce media firms to provide more complete and accurate information. It argues that this new private governance system is a viable response to the channelized flow of information that is exacerbating political polarization in the United States. Specifically, this Essay proposes development of a new private fairness doctrine to replace the standard repealed by the Federal Communications Commission in 1987. A broad-based, multi-stakeholder organization could develop and implement this private fairness doctrine, and the certification process could harness market and social pressure to influence the practices of traditional and new ...


Patenting New Uses For Old Inventions, Sean B. Seymore Apr 2020

Patenting New Uses For Old Inventions, Sean B. Seymore

Vanderbilt Law School Faculty Publications

A bedrock principle of patent law is that old inventions cannot be patented. And a new use for an old invention does not render the old invention patentable. This is because patent law requires novelty--an invention must be new. But while a new use for an old invention does not make the old invention patentable, the new use itself might be patentable. In fact, new-use patents comprise a significant part of the patent landscape-particularly in pharmaceuticals, when drug companies obtain new-use patents to repurpose old drugs. This trend has fueled debates over follow-on innovation and patent quality. But there is ...


The Evolving Federal Response To State Marijuana, Robert Mikos Apr 2020

The Evolving Federal Response To State Marijuana, Robert Mikos

Vanderbilt Law School Faculty Publications

The states have launched a revolution in marijuana policy, creating a wide gap between state and federal marijuana law. While nearly every state has legalized marijuana in at least some circumstances, federal law continues to ban the substance outright. Nonetheless, the federal response to state reforms has been anything but static during this revolution. This Essay, based on my Distinguished Speaker Lecture at Delaware Law School, examines how the federal response to state marijuana reforms has evolved over time, from War, to Partial Truce, and, next (possibly) to Capitulation. It also illuminates the ways in which this shifting federal response ...


What Results Should Be Returned From Opportunistic Screening In Translational Research?, Colin M.E. Halverson, Sarah H. Jones, Laurie Novak, Christopher Simpson, Digna R. Velez Edwards, Sifang K. Zhao, Ellen W. Clayton Mar 2020

What Results Should Be Returned From Opportunistic Screening In Translational Research?, Colin M.E. Halverson, Sarah H. Jones, Laurie Novak, Christopher Simpson, Digna R. Velez Edwards, Sifang K. Zhao, Ellen W. Clayton

Vanderbilt Law School Faculty Publications

Increasingly, patients without clinical indications are undergoing genomic tests. The purpose of this study was to assess their appreciation and comprehension of their test results and their clinicians’ reactions. We conducted 675 surveys with participants from the Vanderbilt Electronic Medical Records and Genomics (eMERGE) cohort. We interviewed 36 participants: 19 had received positive results, and 17 were self-identified racial minorities. Eleven clinicians who had patients who had participated in eMERGE were interviewed. A further 21 of these clinicians completed surveys. Participants spontaneously admitted to understanding little or none of the information returned to them from the eMERGE study. However, they ...


Returning Results In The Genomic Era: Initial Experiences Of The Emerge Network, Ellen W. Clayton, Georgia L. Wiesner, Alanna K. Rahm, Et Al. Mar 2020

Returning Results In The Genomic Era: Initial Experiences Of The Emerge Network, Ellen W. Clayton, Georgia L. Wiesner, Alanna K. Rahm, Et Al.

Vanderbilt Law School Faculty Publications

A goal of the 3rd phase of the Electronic Medical Records and Genomics (eMERGE3) Network was to examine the return of results (RoR) of actionable variants in more than 100 genes to consenting participants and their healthcare providers. Each of the 10 eMERGE sites developed plans for three essential elements of the RoR process: Disclosure to the participant, notification of the health care provider, and integration of results into the electronic health record (EHR). Procedures and protocols around these three elements were adapted as appropriate to individual site requirements and limitations. Detailed information about the RoR procedures at each site ...


Misaligned Lawmaking, Timothy Meyer Jan 2020

Misaligned Lawmaking, Timothy Meyer

Vanderbilt Law School Faculty Publications

This Article makes three contributions. First, it introduces the Misalignment Thesis in the context of U.S. trade policy. The Misalignment Thesis is a descriptive claim about how the structure of a legislative bargain influences the long-term stability and effectiveness of that bargain. Second, the Article introduces the normative corollary to the Misalignment Thesis: if political stability hinges on respecting the legislative bargain, interdependent policies should be subject to renegotiation on the same timeline and implementation on the same terms. In light of this prescription, I offer three concrete proposals for aligning trade liberalization and trade adjustment assistance in order ...


The Indian Securities Fraud Class Action: Is Class Arbitration The Answer?, Brian T. Fitzpatrick, Randall S. Thomas Jan 2020

The Indian Securities Fraud Class Action: Is Class Arbitration The Answer?, Brian T. Fitzpatrick, Randall S. Thomas

Vanderbilt Law School Faculty Publications

In 2013, India enacted one of the most robust private enforcement regimes for securities fraud violations in the world. Unlike in most other countries, Indian shareholders can now initiate securities fraud lawsuits on their own, represent all other defrauded shareholders unless those shareholders affirmatively opt out, and collect money damages for the entire class. The only thing missing is a better financing mechanism: unlike the United States, Canada, and Australia, India does not permit contingency fees, so class action lawyers cannot front the costs of litigation in exchange for collecting a percentage of what they recover. On the other hand ...


Encomium For Karen Rothenberg, Ellen W. Clayton Jan 2020

Encomium For Karen Rothenberg, Ellen W. Clayton

Vanderbilt Law School Faculty Publications

Karen is also a zealous advocate in the very best sense of the word. After Struewing's article appeared, she wrote an editorial that appeared in multiple newspapers arguing that women with these variants should not lose their insurance. She became deeply involved in the National Action Plan for Breast Cancer, a powerful grass roots organization. Additionally, she became involved at the National Institutes of Health and addressed, often in leadership roles, such issues to develop strategies to prevent genetic discrimination for individuals with variants that increased the risk of developing cancer, to create tools to obtain meaningful informed consent ...


Unjust Timing Limitations In Genetic Malpractice, Ellen W. Clayton, Gary Marchant, Bonnie Leroy, Lauren Clatch Jan 2020

Unjust Timing Limitations In Genetic Malpractice, Ellen W. Clayton, Gary Marchant, Bonnie Leroy, Lauren Clatch

Vanderbilt Law School Faculty Publications

As genomic data are increasingly being collected and applied in clinical care, physicians, laboratories, and other health care providers are more frequently being sued for alleged medical malpractice or negligence. Because the genetic underpinnings of an existing or future health condition may not be immediately apparent, such cases sometimes raise unique timing issues involving the applicable statute of limitations, statute of repose, or statutory notification requirements. Although these timing limitations on when a lawsuit can be brought have important policy rationales and justifications, such as helping to protect providers from open-ended liability, their application to genetic liability cases may sometimes ...


Governing Cascade Failures In Complex Social-Ecological-Technological Systems: Framing Context, Strategies, And Challenges, J.B. Ruhl Jan 2020

Governing Cascade Failures In Complex Social-Ecological-Technological Systems: Framing Context, Strategies, And Challenges, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Cascade failures are events in networked systems with interconnected components in which failure of one or a few parts triggers the failure of other parts, which triggers the failure of more parts, and so on. Cascade failures occur in a wide variety of familiar systems, such as electric power distribution grids, transportation systems, financial systems, and ecosystems. Cascade failures have plagued society for centuries. However, modern social-ecological-technological systems (SETS) have become vast, fast moving, and highly interconnected, exposing these systems to cascade failures of potentially global proportions, spreading at breathtaking speed, and imposing catastrophic harms. The increasing potential for cascade ...


The Specific Consumer Expectations Test For Product Defects, W. Kip Viscusi, Clayton J. Masterman Jan 2020

The Specific Consumer Expectations Test For Product Defects, W. Kip Viscusi, Clayton J. Masterman

Vanderbilt Law School Faculty Publications

The consumer expectations test in products liability law holds firms liable for producing goods that are more dangerous than the reasonable consumer would anticipate. But judicial experience in the majority of states that have utilized the consumer expectations test demonstrates that it is ambiguous and impossible to apply predictably. The test is ill-suited for regulating complex products or markets with heterogeneous consumers; moreover, the test requires courts to expend significant resources to identify consumers' ex ante beliefs about product risks, even when consumers lacked tangible beliefs about products at the time of purchase. The other major test that courts apply ...


The Indian Securities Fraud Class Action: Is Class Arbitration The Answer?, Brian T. Fitzpatrick, Randall S. Thomas Jan 2020

The Indian Securities Fraud Class Action: Is Class Arbitration The Answer?, Brian T. Fitzpatrick, Randall S. Thomas

Vanderbilt Law School Faculty Publications

In 2013, India enacted one of the most robust private enforcement regimes for securities fraud violations in the world. Unlike in most other countries, Indian shareholders can now initiate securities fraud lawsuits on their own, represent all other defrauded shareholders unless those shareholders affirmatively opt out, and collect money damages for the entire class. The only thing missing is a better financing mechanism: unlike the United States, Canada, and Australia, India does not permit contingency fees, so class action lawyers cannot front the costs of litigation in exchange for collecting a percentage of what they recover. On the other hand ...


Anticipating Accommodation, Jennifer B. Shinall Jan 2020

Anticipating Accommodation, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

In theory, a reasonable accommodation mandate can remedy worker marginalization by requiring employers to make small adjustments in the workplace that have big payoffs for employees. But in reality, a reasonable accommodation mandate may be an empty promise. Reasonable accommodation is the hallmark feature of the Americans with Disabilities Act ("ADA "), yet decades of empirical studies indicate that wage and employment outcomes of disabled individuals have not improved--and may have even worsened--since the Act's passage. Economists have been quick to blame the reasonable accommodation mandate for the ADA's failure, but they have lacked sufficient data to discern both ...


Money, Private Law, And Macroeconomic Disasters, Morgan Ricks Jan 2020

Money, Private Law, And Macroeconomic Disasters, Morgan Ricks

Vanderbilt Law School Faculty Publications

Last year, Ben Bernanke published a blockbuster paper whose importance to the emerging field of law and macroeconomics would be hard to overstate. Titled The Real Effects of Disrupted Credit: Evidence from the Global Financial Crisis,' the paper gets to a vital threshold question for financial stability policy: through what channel or channels do financial crises crush the real economy? Bernanke pits what he calls the "household leverage" narrative of the Great Recession of 2007 to 2009 against what he calls the "financial fragility" narrative. His empirical analysis comes down firmly on the side of the latter narrative. In this ...


Has The "M" Word Been Framed? Marijuana, Cannabis And Public Opinion, Robert A. Mikos, Cindy D. Kam Oct 2019

Has The "M" Word Been Framed? Marijuana, Cannabis And Public Opinion, Robert A. Mikos, Cindy D. Kam

Vanderbilt Law School Faculty Publications

Over the past two decades, a growing cadre of US states has legalized the drug commonly known as “marijuana.” But even as more states legalize the drug, proponents of reform have begun to shun the term “marijuana” in favor of the term “cannabis.” Arguing that the “M” word has been tainted and may thus dampen public support for legalization, policy advocates have championed “cannabis” as an alternative and more neutral name for the drug. Importantly, however, no one has tested whether calling the drug “cannabis” as opposed to “marijuana” actually has any effect on public opinion. Using an original survey ...


The Supreme Court And Refugees At The Southern Border: 5 Questions Answered, Karla Mckanders Oct 2019

The Supreme Court And Refugees At The Southern Border: 5 Questions Answered, Karla Mckanders

Vanderbilt Law School Faculty Publications

I sat in a small room in Tijuana, Mexico with a 13-year-old indigenous Mayan Guatemalan girl.

She left Guatemala after a cartel murdered her friend and threatened to rape her. Her mother wanted her to live and believed the only way for her to survive was to send her daughter alone to the U.S., to apply for asylum Now she was alone and stuck in Mexico. Every morning, the Guatemalan girl, along with other asylum seekers, would frantically gather at the Tijuana-U.S. border where they waited to hear their name or their number called so the Mexican government ...


Pregnant People?, Jessica Clarke Oct 2019

Pregnant People?, Jessica Clarke

Vanderbilt Law School Faculty Publications

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do — such as purchasing a car seat, finding a pediatrician, or choosing a daycare — as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their ...


The Diversity Imperative Revisited: Racial And Gender Inclusion In Clinical Law Faculty, G. S. Hans, D. N. Archer, Et Al. Oct 2019

The Diversity Imperative Revisited: Racial And Gender Inclusion In Clinical Law Faculty, G. S. Hans, D. N. Archer, Et Al.

Vanderbilt Law School Faculty Publications

The demographics of clinical law faculties matter. As Professor Jon Dubin persuasively argued nearly twenty years ago in his article Faculty Diversity as a Clinical Legal Education Imperative, clinical faculty of color entering the legal academy in the 1980s and 1990s expanded the communities served by law school clinics and the lawyering methods used to serve clients in significant ways that enriched legal education and the profession. They also broadened clinical scholarship to include deconstructions and reconstructions of clinical teaching, offered crucial role modeling and mentorship to students of color, and helped to elevate cross-cultural communication and multiracial collaboration as ...


Guarantor Of Last Resort: Is There A Better Alternative?, Morgan Ricks May 2019

Guarantor Of Last Resort: Is There A Better Alternative?, Morgan Ricks

Vanderbilt Law School Faculty Publications

What should the government’s financial-crisis-response toolkit consist of? How should we think about its optimal scope and design? In Kate Judge offers a novel perspective on these questions. At a high level she agrees with Summers, Bernanke, Paulson, and Geithner that the existing toolkit is inadequate. In this respect she joins a number of other legal scholars and commentators. . .

The day after Lehman’s bankruptcy, Ken Rogoff—among the world’s leading experts on financial crises—wrote an op-ed titled “No More Creampuffs.” He applauded regulators for letting Lehman fail and “forc[ing] some discipline onto the system.” (To ...


The Law Of Genetic Privacy: Applications, Implications, And Limitations, Ellen Wright Clayton, Barbara J. Evans, James W. Hazel, Mark A. Rothstein May 2019

The Law Of Genetic Privacy: Applications, Implications, And Limitations, Ellen Wright Clayton, Barbara J. Evans, James W. Hazel, Mark A. Rothstein

Vanderbilt Law School Faculty Publications

Recent advances in technology have significantly improved the accuracy of genetic testing and analysis, and substantially reduced its cost, resulting in a dramatic increase in the amount of genetic information generated, analysed, shared, and stored by diverse individuals and entities. Given the diversity of actors and their interests, coupled with the wide variety of ways genetic data are held, it has been difficult to develop broadly applicable legal principles for genetic privacy. This article examines the current landscape of genetic privacy to identify the roles that the law does or should play, with a focus on federal statutes and regulations ...


Standing For Nothing, Robert Mikos May 2019

Standing For Nothing, Robert Mikos

Vanderbilt Law School Faculty Publications

A growing number of courts and commentators have suggested that states have Article III standing to protect state law. Proponents of such "protective" standing argue that states must be given access to federal court whenever their laws are threatened. Absent such access, they claim, many state laws might prove toothless, thereby undermining the value of the states in our federal system. Furthermore, proponents insist that this form of special solicitude is very limited-that it opens the doors to the federal courthouses a crack but does not swing them wide open. This Essay, however, contests both of these claims, and thus ...


The Patent Option, Daniel J. Gervais Mar 2019

The Patent Option, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

There is a shift in the shape of intellectual property (IP) tools used to strengthen and lengthen the right of pharmaceutical companies to exclude others from making and marketing their products. Patents have traditionally been the tool of choice. Over the past two decades, however, pharmaceutical companies have increased their degree of reliance on a right known as “data exclusivity.” This right, which now exists in most major jurisdictions, is the right to prevent third parties from relying on the clinical trial data submitted by another pharmaceutical company to obtain marketing approval for a bioequivalent or biosimilar product. The right ...


Immigration To Blue Cities In Red States: The Battleground Between Sanctuary And Exclusion, Karla M. Mckanders Mar 2019

Immigration To Blue Cities In Red States: The Battleground Between Sanctuary And Exclusion, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This commentary interrogates the concept of immigration federalism, examining the political and ideological contours of state and local sanctuary laws in the context of both state and the Trump Administration's exclusionary policies. I utilize the intrastate federalism conflicts within the State of Tennessee to highlight the political dynamics that govern the passing of state and local sanctuary laws analyzing new issues that have surfaced under the Trump Administration. In this context, the commentary argues that recent immigration federalism standoffs center around political divisions which fail to engage in principled evaluations of which level of governmentfederal, state, or local--should be ...


Taming Blockbuster Punitive Damages Awards, W. Kip Viscusi, Benjamin J. Mcmichael Jan 2019

Taming Blockbuster Punitive Damages Awards, W. Kip Viscusi, Benjamin J. Mcmichael

Vanderbilt Law School Faculty Publications

Blockbuster punitive damages awards, i.e., those awards exceeding $100 million, attract attention based on their sheer size. While there have been fewer such awards in the last decade, they remain an important presence in the legal landscape. Taking notice of these and other large punitive damages awards, courts and state policymakers have taken steps to both constrain them and render them more predictable. States have enacted punitive damages caps to limit the amount of punitive damages courts can award, but these caps often contain a number of exceptions and apply only to damages under a specific state’s law ...


Settling In The Shadow Of Sex: Gender Bias In Marital Asset Division, Jennifer Bennett Shinall Jan 2019

Settling In The Shadow Of Sex: Gender Bias In Marital Asset Division, Jennifer Bennett Shinall

Vanderbilt Law School Faculty Publications

Divorce has a long history of economically disempowering women. From the time of coverture to the era of modern divorce reform, women have been persistently disadvantaged by divorce relative to men. Family law scholars have long attributed this disadvantage to the continued prevalence of traditional gender roles and the failure of current marital asset division laws to account adequately for this prevalence. In spite of the progress made by the women's movement over the past half-century, married, heterosexual women endure as the primary caretaker in the majority of households, and married, heterosexual men endure as the primary breadwinners. Undoubtedly ...


Improper Appropriation, Daniel J. Gervais Jan 2019

Improper Appropriation, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The traditional (Arnstein) test for copyright infringement is satisfied when the owner of a valid copyright establishes unauthorized copying by the defendant. To demonstrate unauthorized copying, one of the major tests is that the plaintiff must first show that her work was actually copied; second, she must establish substantial similarity and/or that the copying amounts to an improper or unlawful appropriation. The second prong is satisfied when (i) protected expression in the earlier work was copied and (ii) the amount of the copyrighted work that is copied must be more than de minimis. This Article examines, first, how impropriety ...


Countering Nationalist Oligarchy, Ganesh Sitaraman Jan 2019

Countering Nationalist Oligarchy, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

The challenge we face today is not one of authoritarianism, as so many seem inclined to believe, but of nationalist oligarchy. This form of government feeds populism to the people, delivers special privileges to the rich and well-connected, and rigs politics to sustain its regime.

Nationalist oligarchy is an existential threat to American democracy. The countries already under its thrall steal technology and use economic power as political leverage. Some of them are actively trying to undermine democracy, through cyber attacks, hacking, and social media disinformation. And they spread bribery and corruption around the world—deepening inequality and threatening to ...


Patenting The Unexplained, Sean B. Seymore Jan 2019

Patenting The Unexplained, Sean B. Seymore

Vanderbilt Law School Faculty Publications

It is a bedrock principle of patent law that an inventor need not understand how or why an invention works. The patent statute simply requires that the inventor explain how to make and use the invention. But explaining how to make and use something without understanding how or why it works yields patents with uninformative disclosures. Their teaching function is limited; one who wants to understand or figure out the underlying scientific principles must turn elsewhere. This limited disclosure rule does not align with the norms of science and tends to make patent documents a less robust form of technical ...


Fintech And The Innovation Trilemma, Yesha Yadav, Chris Brummer Jan 2019

Fintech And The Innovation Trilemma, Yesha Yadav, Chris Brummer

Vanderbilt Law School Faculty Publications

Whether in response to roboadvising, artificial intelligence, or crypto-currencies like Bitcoin, regulators around the world have made it a top policy priority to supervise the exponential growth of financial technology (or "fintech") in the post-Crisis era. However, applying traditional regulatory strategies to new technological ecosystems has proven conceptually difficult. Part of the challenge lies in the tradeoffs involved in regulating innovations that could conceivably both help and hurt consumers and market participants alike. Problems also arise from the common assumption that today's fintech is a mere continuation of the story of innovation that has shaped finance for centuries.

This ...