Digital Commons Network^™

Congressional Administration Of Foreign Affairs, Rebecca Ingber

Faculty Scholarship

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that, as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not …

Mobile App To Help People With Chronic Illness Reflect On Their Strengths: Formative Evaluation And Usability Testing, Kurt Stange

Faculty Scholarship

Background: Supporting patient engagement and empowerment is increasingly seen as essential in providing person-centered health care to people with chronic illness. Mobile apps helping patients reflect on their concerns as preparation for consultations with their health care providers can have beneficial effects on the consultation quality. However, apps focusing on empowerment and personal strengths are still scarce. Objective: This study aimed to (1) develop a mobile app to support patients with rheumatic diseases in reflecting on their strengths in preparation for consultations with health care providers and (2) explore patients’ perceived usability of the app in a nonclinical test setting. …

Beyond Settlement: Reconceptualizing Adr As “Conflict Process Strategy”, Deborah Thompson Eisenberg

Faculty Scholarship

“Alternative dispute resolution” or “ADR” has reached a paradoxical moment: it is both ubiquitous in practice and at risk of extinction as a distinct concept and field. As the ADR field nears middle age—nearly fifty years after the Pound Conference of 1976—“ADR” has become so popular in name, fractured in practice, and jumbled in theory that it risks a metaphorical genericide, a concept in trademark law when a product name is used to refer to so many things (incorrectly) that it becomes “generic” and confusing. Analogously, the name “ADR” has been applied to so many different processes and concepts that …

Navigating The Backlash Against Global Law And Institutions, Peter G. Danchin, Jeremy Farrall, Jolyon Ford, Shruti Rana, Imogen Saunders, Daan Verhoeven

Faculty Scholarship

No abstract provided.

Civil Rights In Living Color, Vinay Harpalani

Faculty Scholarship

This Article will examine how American civil rights law has treated “color” discrimination and differentiated it from “race” discrimination. It is a comprehensive analysis of the changing legal meaning of “color” discrimination throughout American history. The Article will cover views of “color” in the antebellum era, Reconstruction laws, early equal protection cases, the U.S. Census, modern civil rights statutes, and in People v. Bridgeforth—a landmark 2016 ruling by the New York Court of Appeals. First, the Article will lay out the complex relationship between race and color and discuss the phenomenon of colorism—oppression based on skin color—as differentiated from …

Bringing Relevance Back To Consumer Bankruptcy, Nathalie Martin

Faculty Scholarship

The Seventeenth Annual Emory Bankruptcy Developments Journal Symposium

This Paper presumes that readers want to make bankruptcy more useful for consumers and for society as a whole. If this is true, we need to ask two questions: first, what do individual consumers hope to get out of the system, and second, what does society hope to get out of the system?

Part I of this Paper discusses the increase in debt over the last two decades, the growing wage and income gap, growing debt inequality and race, and the fall of the CFPB, all justifications for using the bankruptcy system …

Shadow Governance, Yaron Nili, Cathy Hwang

Faculty Scholarship

Corporations have something to say about some of the most important social and economic issues of our time—and one way they say it is through shadow governance. This Article spotlights a group of influential corporate policies comprising what we call “shadow governance.” These non-charter, non-bylaw governance documents express a corporation’s commitment to and process on issues as wide-ranging as campaign finance, environmental sustainability, and sexual harassment, but are largely overlooked by scholars and practitioners alike. This Article addresses that gap, revealing how shadow governance documents influence corporate decision-making and corporate behavior.

This Article makes two contributions to the literature. First, …

The Precarious Position Of The Fourth Estate In Trumptopia: The Role Of Popular Culture And The Law In Protecting Media Freedom, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

As Seen Through The Eye Of The Camera: A Portrayal Of How Cultural Changes Societal Shifts And The Fight For Gender Equality Transformed The Law Of Divorce, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott

Faculty Scholarship

The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement ("DRM"), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.

This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities …

Nothing Generic About It: Promoting Therapeutic Access By Overcoming Regulatory And Legal Barriers To A Robust Generic Medical Device Market, Megan S. Wright, Zachary Shapiro, Adam Pan, Keturah James, Joseph Fins

Faculty Scholarship

This Article addresses a paradox in American healthcare technology: a thriving market for generic drugs but a paucity of generic medical devices. Despite the success of generic pharmaceuticals in reducing healthcare costs, no analogous market exists for generic medical devices. This plays a part in keeping prices high while limiting access to affordable therapies. In this Article, we highlight the regulatory and legal barriers currently impeding the development of a generic medical device market in the United States. We explore differences between generic drugs and generic devices in FDA regulation, products liability, and patentability, all of which contribute to the …

Kidney Donation And The Consent Of The Poor, Philip J. Cook, Kimberly D. Krawiec

Faculty Scholarship

In "Consentability," Nancy Kim tackles an important and current topic—in an age of increasing options about how to live, die, and procreate, what limits, if any, should the law place on those choices? "Consentability" is a valuable resource for scholars and policymakers alike, summarizing the arguments for and against government intrusion on the choices of consenting adults with encyclopedic thoroughness. After weighing the arguments, Kim proposes that “bodily integrity exchanges” be permitted, subject to limitations. Although we agree with the general conclusion that bodily integrity exchanges should be permitted, we disagree with the specific limitations that treat the decisions of …

Special Education By Zip Code: Creating Equitable Child Find Policies, Crystal Grant

Faculty Scholarship

It is estimated that more than 1.3 million youth in the United States have a disability. One in four American adults have a disability that impacts major life activities. With disability rates this high, our nation must prioritize efforts to ensure that all children with disabilities and in need of special education are identified and receive the support they need in school. Congress, through the Individuals with Disabilities Education Act (IDEA), mandated that all public schools locate, identify and evaluate all students suspected of having a disability. The special education community refers to this affirmative duty as “child find.” Unfortunately, …

The Information Shortfalls Of Prosecuting Irresponsible Executives, Miriam H. Baer

Faculty Scholarship

No abstract provided.

Boards In Information Governance,, Sarah Haan

Faculty Scholarship

No abstract provided.

Criminalizing Coercive Control Within The Limits Of Due Process, Erin L. Sheley

Faculty Scholarship

The sociological literature on domestic abuse shows that it is more complex than a series of physical assaults. Abusers use “coercive control” to subjugate their partners through a web of threats, humiliation, isolation, and demands. The presence of coercive control is highly predictive of future physical violence and is, in and of itself, also a violation of the victim’s liberty and dignity. In response to these new understandings the United Kingdom has recently criminalized nonviolent coercive control, making it illegal to, on two or more occasions, cause “serious alarm or distress” to an intimate partner that has a “substantial effect” …

Victim Impact Statements At Canadian Corporate Sentencing, Erin L. Sheley

Faculty Scholarship

The recent SNC-Lavalin scandal and its political fallout have drawn
public attention to an existing culture of impunity enjoyed by corporate
criminal wrongdoers, despite the 2004 changes to the Criminal Code of
Canada that intended to make corporate prosecutions easier. In this article,
I argue that the conceptual problems with corporate criminal liability may
lie in the criminal justice system’s general misapprehension of the nature of
corporate crime; especially of the distinct nature of the harm experienced
by white collar victims. I further argue that, therefore, part of the solution
to under-enforcement may be evidentiary: the Crown and courts should, …

In Times Of Chaos: Creating Blueprints For Law School Responses To Natural Disasters, Jeffrey R. Baker, Christine E. Cerniglia, Davida Finger, Luz E. Herrera, Jonel Newman

Faculty Scholarship

A recent onslaught of domestic natural disasters created acute, critical needs for legal services for people displaced and harmed by storms and fires. In 2017, Hurricanes Harvey, Irma, Maria and Michael struck much of Texas, Florida, and Puerto Rico, displacing millions from their homes. Wildfires burned throughout California and tested the capacity of pro bono and legal aid systems across the state. In 2018, Hurricane Florence flooded North Carolina, and Hurricane Michael devastated the Florida Panhandle. California again suffered wildfires, the largest and most devastating in recorded history. Natural disasters are both more common and more destructive, the “new abnormal.” …

Dementia, Autonomy, And Supported Healthcare Decisionmaking, Megan S. Wright

Faculty Scholarship

Healthcare providers often rely on surrogates to decide on behalf of their patients with dementia who are deemed incapable of exercising autonomy. There is a longstanding debate about the appropriate standard of surrogate healthcare decisionmaking for these patients. Many influential scholars argue that the precedent autonomy of the person with dementia should be respected, and healthcare decision-making laws generally reflect this principle. These laws direct surrogate decisionmakers to follow instructions in living wills or to decide on the basis of the wishes and values of the person before the onset of dementia.But other prominent scholars have questioned whether surrogates should …

Prosecutors And Mass Incarceration, Shima Baradarab Baughman, Megan S. Wright

Faculty Scholarship

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court …

Conference On Best Practices For Managing Daubert Questions, Daniel J. Capra, David G. Campbell, Debra A. Livingston, James P. Bassett, Shelly Dick, Traci L. Lovitt, Thomas Marten, Kathryn N. Nester, Thomas D. Schroeder, Elizabeth J. Shapiro, Timothy Lau, Vince Chhabria, John Z. Lee, William H. Orrick Iii, Edmund A. Sargus Jr., Sarah A. Vance, Edward K. Cheng

Faculty Scholarship

This article is a transcript of the Philip D. Reed Lecture Series Conference on Best Practices for Managing Daubert Questions, held on October 25, 2019, at Vanderbilt Law School under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. The transcript has been lightly edited and represents the panelists’ individual views only and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary.

Genetic Evidence, Maoa, And State V. Yepez, Nita A. Farahany, Roderick T. Kennedy, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Genetic Race? Dna Ancestry Tests, Racial Identity, And The Law, Trina Jones, Jessica L. Roberts

Faculty Scholarship

Can genetic tests determine race? Americans are fascinated with DNA ancestry testing services like 23andMe and AncestryDNA. Indeed, in recent years, some people have changed their racial identity based upon DNA ancestry tests and have sought to use test results in lawsuits and for other strategic purposes. Courts may be similarly tempted to use genetic ancestry in determining race. In this Essay, we examine the ways in which DNA ancestry tests may affect contemporary understandings of racial identity. We argue that these tests are poor proxies for race because they fail to reflect the social, cultural, relational, and experiential norms …

Covid-19'S Impact On Students With Disabilities In Under-Resourced School Districts, Crystal Grant

Faculty Scholarship

This Essay explores the plight of students with disabilities during the COVID-19 pandemic, particularly those enrolled in under-resourced school districts. To address these ongoing disparities, remediate student regression, and prevent further educational loss, we must act quickly to get resources to the students who need it most and to guide districts towards using these resources effectively. This Essay questions whether federal and state governments are truly committed to creatively examining the current special education framework and adopting solutions that will prioritize expanding access to resources for students with disabilities. These solutions include an immediate advancement of funds to aid states …

What Explains Taxation By Resource-Rich Rebels? Evidence From The Islamic State In Syria, Mara R. Revkin

Faculty Scholarship

Greed-based theories of civil war predict that rebel groups will only engage in taxation and other state-building activities in areas where they lack exploitable resources. However, this prediction is contradicted by the Islamic State’s pattern of taxation across time and space. A new data set mapping seven types of revenue-extracting policies imposed by the Islamic State, a jihadist rebel group, in the 19 Syrian districts that it governed between 2013 and 2017 indicates that these policies were just as prevalent in resource-rich as in resource-poor districts. I propose a new theory that better explains this pattern—a rebel group’s pattern of …

Horizontal Directors, Yaron Nili

Faculty Scholarship

Directors wield increasing influence in corporate America, making pivotal decisions regarding corporate affairs and management. A robust literature recognizes directors’ important role and examines their incentives and performance. In particular, scholars have worried that “busy directors”—those who serve on multiple corporate boards—may face time constraints that affect their performance. Little attention, however, has been paid to directors who sit on the boards of multiple companies within the same industry. This Article terms them “horizontal directors” and spotlights, for the first time, the legal and policy issues they raise. The “horizontal” feature of directorships, a term often used in the antitrust …

Broken Records: Reconceptualizing Rational Basis Review To Address “Alternative Facts” In The Legislative Process, Joseph Landau

Faculty Scholarship

In 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the same time, Alabama enacted a punishing immigration law in which sponsors distorted statistics regarding the undocumented population by using the terms “Latino/Hispanic” and “illegal immigrant” interchangeably. These laws are reflective of a larger pattern. In our increasingly polarized political climate, policymakers are affirmatively distorting legislative records and promoting dubious justifications for their policy goals—that is, …

Jurisprudence—Merely Judgment: A Fallibilist Account Of The Rule Of Law, Bruce K. Miller

Faculty Scholarship

How should judges decide the cases presented to them? In our system the answer is, “according to law,” as opposed to the judges’ preferred outcomes. But for at least a century, skeptics have cast doubt on whether adjudication under law is possible. Judge Richard Posner, now retired from the U.S. Court of Appeals for the Seventh Circuit, has, for example, argued that the indeterminacy of legal argument and the influence of judges’ predispositions show that it is not. Judge Posner thus recommends that judges give up on the rule of law in contested cases and instead candidly base their decisions …

Lying And Cheating, Or Self-Help And Civil-Disobedience?, Aditi Bagchi

Faculty Scholarship

May poor sellers lie to rich buyers? This article argues that, under limited circumstances, sellers may indeed have a license to lie about their goods. Where sellers are losers under unjust background institutions and they reasonably believe that buyers have more than they would under just institutions, lies that result in de minimum transfers can be regarded as a kind of self-help. More generally, what we owe each other in our interpersonal interactions depends on the institutional backdrop. Consumer contract law, including its enforcement regimes, should recognize the social and political contingency of sellers’ obligations to buyers. In other contexts, …

Afrodescendants, Law, And Race In Latin America, Tanya K. Hernandez

Faculty Scholarship

Law and Society research in and about Latin America has been particularly beneficial in elucidating the gap between the ideals of racial equality laws in the region and the actual subordinated status of its racialized subjects. Some of the recurrent themes in the race-related literature have been: the limits of the Latin American emphasis on criminal law to redress discriminatory actions; the limits of multicultural constitutional reform for full political participation; the insufficiency of land reform and recognition of ethnic communal property titles; and the challenges to implementing race conscious public policies such as affirmative action. Especially illuminating have been …