Law Commons^™

The Emerging Jurisprudence Of The African Human Rights Court And The Protection Of Human Rights In Africa, John M. Mbaku, Professor Of Economics

Vanderbilt Journal of Transnational Law

During most of the post-independence period, many African countries have either been unwilling or unable to protect human rights or relegated this important function to a small group of poorly funded but brave and courageous non-state actors. Most importantly, some African governments have either actively engaged in human rights violations or failed to bring to justice those who have committed atrocities against their fellow citizens. In the 1970s and 1980s, many African heads of state were more concerned with national sovereignty in an effort to hide the violation of human rights committed within their jurisdictions than participating in the building, …

Nonparty Jurisdiction, Aaron D. Simowitz, Linda J. Silberman

Vanderbilt Journal of Transnational Law

The Supreme Court's recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must …

European Union Law As Foreign Law, Lior Zemer, Sharon Pardo

Vanderbilt Journal of Transnational Law

The importance and significance of comparative sources to the development of Israeli jurisprudence is expressed in local legislation and rulings. The impact of foreign law on the development of Israeli law has been analyzed and vindicated in numerous studies in the local legal literature. These studies typically focus on the two most prominent legal systems—-common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that Israel’s legal system is based on these legal regimes and is amended in the spirit of changes made to them. Over the years, …

The Image Of European Union Law In Bilateral Relations, Sharon Pardo, Lior Zemer

Vanderbilt Journal of Transnational Law

The impact of foreign law on the development of national laws has been analyzed and vindicated in numerous studies in comparative legal literature. These studies typically focus on the two most prominent legal systems--common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that the world's legal systems are based on these legal regimes and are amended in the spirit of changes made to them. Over the years, however, with the many effects of legal and economic globalization, legal systems have become a diverse mosaic which has appropriated …

Photocopies, Patents, And Knowledge Transfer: "The Uneasy Case" Of Justice Breyer's Patentable Subject Matter Jurisprudence, Dmitry Karshtedt

Vanderbilt Law Review

One aspect of Justice Stephen Breyer's discomfort with patents, as expressed in his opinion for the Supreme Court in Mayo v. Prometheus and his dissent from the order dismissing certiorari in LabCorp v. Metabolite, is strikingly similar to one of his critiques of copyright law in The Uneasy Case for Copyright, a well-known article he wrote as Professor Breyer more than forty-five years ago. In The Uneasy Case, Breyer argued that the burdens on duplication of technical articles imposed by copyright law restrict the flow of information and prevent scientists from enjoying spillover benefits of published research. His patent opinions …

From Berne To Beijing: A Critical Perspective, David Lange

Vanderbilt Journal of Entertainment & Technology Law

Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law's Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange's preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated …

Jurisdictional Standards (And Rules), Adam L. Muchmore

Vanderbilt Journal of Transnational Law

This Article uses the jurisprudential dichotomy between two opposing types of legal requirements--"rules" and "standards"--to examine extraterritorial regulation by the United States. It argues that there is natural push toward standards in extraterritorial regulation because numerous institutional actors either see standards as the best option in extraterritorial regulation or accept standards as a second-best option when their first choice (a rule favorable to their interests or their worldview) is not feasible.

The Article explores several reasons for this push toward standards, including: statutory text, statutory interpretation theories, the nonbinary nature of the domestic/foreign characterization, the tendency of extraterritorial regulation to …

Losing The Forest For The Trees: Syria, Law, And The Pragmatics Of Conflict Recognition, Laurie R. Blank, Geoffrey S. Corn

Vanderbilt Journal of Transnational Law

The situation in Syria has the potential to become a pivotal moment in the development of the law of armed conflict (LOAC). The ongoing brutality serves as a reminder of the importance of extending international humanitarian regulation into the realm of non-international armed hostilities; however, the very chaos those hostilities produce reveals critical fault lines in the current approach to determining the existence of an armed conflict. The international community's year-long reluctance to characterize the situation in Syria as an armed conflict highlights a clear disparity between the object and purpose of the LOAC and the increasingly formalistic interpretation of …

Standing On The Edge: Standing Doctrine And The Injury Requirement At The Borders Of Establishment Clause Jurisprudence, Mary A. Myers

Vanderbilt Law Review

The very first line of the Bill of Rights provides that "Congress shall make no law respecting an establishment of religion." This line, the Establishment Clause of the First Amendment, was motivated by the history of religious persecution that drove thousands of adherents of minority faiths in Europe to the New World to seek refuge to practice their own faith, free from the compulsion of state-established religion. The Establishment Clause remains relevant today, and the U.S. Supreme Court has been active in hearing cases involving it. For purposes of determining standing-that is, whether an individual or organization meets certain constitutional …

Jacksonian Jurisprudence And The Obscurity Of Justice John Catron, Austin Allen

Vanderbilt Law Review

This Article argues that Justice Catron's acceptance of the general premises of the Court's Jacksonian jurisprudence accounts for his obscurity. Part One demonstrates that Catron articulated a similar framework while serving on the Tennessee Supreme Court. Part Two illustrates his continued support for that framework after he moved to the U.S. Supreme Court. Part Three, however, demonstrates that, although he embraced much of the Taney Court's jurisprudence, Catron did not move in lockstep with his colleagues. Indeed, the elements he emphasized within that framework-namely, support for state sovereignty and equality as well as an aversion to judicial policymaking-led him to …

Reconciling Consent Searches And Fourth Amendment Jurisprudence: Incorporating Privacy Into The Test For Valid Consent Searches, David J. Housholder

Vanderbilt Law Review

The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Perhaps the most significant exception to the requirements of the Fourth Amendment is the consent search, which requires no warrant, exigent circumstances, probable cause, or reasonable suspicion.

Some scholars have suggested that the Supreme Court's voluntariness standard for determining consensual searches misperceives …

Damaged Goods: Why, In Light Of The Supreme Court's Recent Punitive Damages Jurisprudence, Congress Must Amend The Federal Rules Of Evidence, Michael S. Vitale

Vanderbilt Law Review

Since the 1980s, a wide range of courts and commentators have expressed concern over large punitive damages awards handed out by civil juries against a wide array of tortfeasors. A late 2001 study revealed that from 1985 to 2001, eight multi-billion dollar punitive damages awards were granted, with four of them being handed down in the years 1999 to 2001 alone.' Not surprisingly, all but one of these verdicts were handed down against large corporations. Among the current members of the U.S. Supreme Court, Justice John Paul Stevens in particular has regularly noted the especially dangerous tendency the current punitive …

The Unclear "Clear And Unmistakable" Standard: Why Arbitrators, Not Courts, Should Determine Whether A Securities Investor's Claim Is Arbitrable, Guy Nelson

Vanderbilt Law Review

When an individual investor opens an account with a securities broker, the customer often must sign a standard-form contract as a precondition of conducting business with the broker. This non- negotiable contract, referred to as a Customer Agreement, generally contains an arbitration clause under which the parties agree to submit any future disputes to arbitration conducted by one of the securities industry's self-regulatory organizations ("SROs"). Proceedings initiated under the broad and inclusive arbitration clause are subject to the arbitration guidelines established by the SROs, a group which includes all the major stock exchanges. Virtually all brokers are members of an …

Reciprocity, Utility, And The Law Of Aggression, Anita Bernstein

Vanderbilt Law Review

The themes of incursion and boundary-crossing unite disparate legal domains. Wherever human beings cross paths and share space, law or law-like traditions develop to regulate this terrain by distinguishing permitted from proscribed intrusion.' Crimes and torts, regulation and liability, claims and defenses to claims, private law and public law all use a variety of measures--punishments, administrative rules, equitable remedies, professional discipline, and informal or extralegal sanctions-to condemn undue aggression. Concern about aggression may be found in the law of every jurisdiction in the United States.

Within American law, an extra increment of aggression can amount to the only difference between …

Jural Districting: Selecting Impartial Juries Through Community Representation, Kim Forde-Mazrui

Vanderbilt Law Review

Court reformers continue to debate over efforts to select juries more diverse than are typically achieved through existing procedures. Controversial proposals advocate race-conscious methods for selecting diverse juries. Such efforts, however well-intentioned, face constitutional difficulties under the Equal Protection Clause, which appears to preclude any use of race in selecting juries. The challenge thus presented by the Court's equal protection jurisprudence is whether jury selection procedures can be designed that effectively enhance the representative character of juries without violating constitutional norms.

Professor Forde-Mazrui offers a novel insight for resolving this challenge. Analogizing juries to legislatures, he applies electoral districting principles …

Progressive Era Race Relations Cases In Their "Traditional" Context, Mark V. Tushnet

Vanderbilt Law Review

The pioneering African-American historian Rayford Logan called the early years of the Progressive era the "nadir" of race relations in the United States. Historians and political scientists who study the Supreme Court generally agree that Supreme Court decisions are rarely substantially out of line with the kind of sustained national consensus regarding race relations that Logan described. Professors Bernstein and Karman point to popular culture, including the roaring success of D.W. Griffith's epic Birth of a Nation attacking Reconstruction and defending the Ku Klux Klan, and elite opinion such as the flourishing of scientific racism to demonstrate that there was …

The Future Of The World Health Organization: What Role For International Law?, David P. Fidler

Vanderbilt Journal of Transnational Law

This Article has tried to provide a comprehensive analysis of the role of international law in WHO's future. Whether WHO realizes it, international law has had and will continue to have effects on international health policy. In the future, WHO has a choice: It can continue to act as if international law plays no role in global public health or it can build the commitment and capacity needed to integrate international law into its endeavors and into the creation of global health jurisprudence. Building such commitment and capacity will not resurrect WHO to its past glories, but they may very …

From Premodern To Modern American Jurisprudence: The Onset Of Positivism, Stephen M. Feldman

Vanderbilt Law Review

What distinguished premodern from modern American jurisprudence? Whereas most commentators agree that the transition from premodernism to modernism occurred around the Civil War,' recent writings reveal dissension regarding the nature of antebellum and postbellum jurisprudence. In a wonderfully detailed study of Christopher Columbus Langdell, his jurisprudence, and his case method of teaching, William P. LaPiana argues that a defining feature of Langdell's postbellum legal science was a positivism that contrasted with a natural law orientation characteristic of the earlier antebellum jurisprudence. In a provocative critical essay, Robert W. Gordon argues to the contrary: LaPiana's emphasis on natural law during the …

Formal Neutrality In The Warren And Rehnquist Courts: Illusions Of Similarity, Rebecca L. Brown

Vanderbilt Law Review

I read recently that if one compares the genetic structure of humans to that of dogs, one finds that ninety-six percent of the DNA in the two species is identical. That is a lot of common ground. Yet it may not be enough to draw meaningful conclusions about the sameness of the two creatures. Without suggesting that either of the two Courts discussed in her Article is a "dog," I do think it is fair to say that Professor Sherry has perhaps underestimated the relative importance of the divergent four percent.

Professor Sherry argues that in the defining areas of …

Judgment, Philippe Nonet

Vanderbilt Law Review

To judge, in Latin judicare, is to say the law, jus dicere, whence juris-dictio.

The above sentence is a possible answer to the question: what is judging? It spells out what the word "to judge" says, by recalling the history from which the word originates. Why would anyone ask this question? How helpful is such an answer?

Everyone knows what it is to judge. Only on the ground of such self-evidence could there be that unabating debate on the ' justification" of particular judgments, which is the day to day business of lawyering. Only because the question can be passed …

Lamb's Chapel V. Center Moriches Union Free School District, 113 S. Ct. 2141 (1993), John E. Burgess

Vanderbilt Law Review

The First Amendment to the United States Constitution provides the primary foundation for the protection of several individual rights, including free speech and religious autonomy.' At times, how- ever, efforts to protect these rights appear to conflict with competing restraints on state action. The drafters of the First Amendment's Religion Clauses, for example, sought to guarantee religious freedom while maintaining a separation between church and state. The goal or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances."

Rereading "The Federal Courts": Revising The Domain Of Federal Courts Jurisprudence At The End Of The Twentieth Century, Judith Resnik

Vanderbilt Law Review

A first enterprise in understanding and reframing Federal Courts jurisprudence is to locate, descriptively, "the Federal Courts." This activity-identifying the topic-may seem too obvious for comment, but I hope to show its utility. One must start with a bit of history, going back to the "beginning" of this body of jurisprudence. The relevant date is 1928, when Felix Frankfurter and James Landis, who began this conversation, published their book, The Business of the Supreme Court: A Study in the Federal Judicial System. Three years later, in 1931, Felix Frankfurter, then joined by Wilber G. Katz (and later by Harry Shulman), …

The Algebra Of Pluralism: Subjective Experience As A Constitutional Variable, Barbara J. Flagg

Vanderbilt Law Review

Adzan Bedonie is a Navajo woman who speaks no English, holds tightly to traditional Navajo beliefs, and lives in a one-room hogan on the wrong side of the line drawn by a federal court to partition Navajo and Hopi lands.' The law that mandates her relocation and thus threatens to sever what for her is a spiritual connection to the land on which she lives offers a potential escape route: Congress provided for a limited number of life estates for older individuals subject to relocation. But Adzan Bedonie, like most elderly Navajo, has not applied for a life estate, because …

The Irish Abortion Debate: Substantive Rights And Affecting Commerce Jurisprudential Models, Anne M. Hilbert

Vanderbilt Journal of Transnational Law

This Note examines the balance of power between the European Community and its Member States through the window of the Irish abortion debate. The framework for that debate has been shaped largely by two judicial bodies: the Irish judiciary and the European Court of Justice (ECJ), the judicial arm of the European Community. The Irish judiciary has approached the abortion question through an analysis of the content of substantive individual rights protected by the Irish Constitution. The ECJ, on the other hand, has addressed abortion from the standpoint of the European Community's goal of uninhibited commerce between Member States. These …

Straightening The "Timber": Toward A New Paradigm Of International Law, Louis R. Beres

Vanderbilt Journal of Transnational Law

Immanuel Kant once remarked: " Out of timber so crooked as that from which man is made, nothing entirely straight can be built." Understood in terms of international law, this philosopher's wisdom points toward a far-reaching departure from traditional emphases on structures of global power and authority. Newly aware that structural alterations of international law are always epiphenomenal, ignoring root causes of international crimes in favor of their symptomatic expressions, we could craft from this departure a new and promising jurisprudence. Acknowledging that human transformations must lie at the heart of all world-order reform, we could build upon the knowledge …

Provisional Measures In The Inter-American Human Rights System: An Innovative Development In International Law, Jo M. Pasqualucci

Vanderbilt Journal of Transnational Law

In this Article, Professor Pasqualucci examines the developing jurisprudence of provisional measures in the Inter-American human rights system. Through the adoption of provisional measures, a human rights court may order a state to protect persons who are in danger of imminent death or torture. The author first provides an overview of the Inter-American system of human rights. She then describes the historical background of the jurisprudence of provisional measures in the International Court of Justice and the European human rights system, which served as models for provisional measures in the developing Inter-American system. Finally, she analyzes the use of provisional …

Theories Of Poetry, Theories Of Law, Lawrence Joseph

Vanderbilt Law Review

I write poetry." Also, since 1976, when I was admitted to practice before a state bar, I have served as a law clerk for a justice of a state supreme court, practiced, and mostly taught law. About the time that I began law school, while I was writing poems that would appear in my first book, an extraordinary change in jurisprudence began to occur, one which focused on legal language as something more than a medium for conveying singular meaning. This legal theory has become as important as any since legal realism. Because I also have written essays and re- …

Medicaid, State Cost-Containment Measures, And Section 1983 Provider Actions Under "Wilder V. Virginia Hospital Association", Michael D. Daneker

Vanderbilt Law Review

After the Civil War, Congress enacted a statutory private right of action to ensure the protection of an individual's federal civil rights." This right of action, now codified at Title 42, Section 1983 of the United States Code, creates liability for anyone who, acting under a state law, program, or policy, infringes on an individual's federal rights. Although the authors of Section 1983 intended the statute to serve primarily as a mechanism for the protection of federal constitutional rights, the United States Supreme Court has recognized that Section 1983 is a valid tool for enforcing a wide variety of statutorily …

The Jurisprudence Of Genetics, Rochelle C. Dreyfuss, Dorothy Nelkin

Vanderbilt Law Review

In recent years, genetic research has ascended the list of national research priorities. From among the many weighty claims on the fisc, Congress has chosen to provide significant federal support for the Human Genome Initiative, a project aimed at mapping the complete set of genetic instructions that form the structure of inherited attributes. Geneticists anticipate that the project will disclose important new in- formation on human development and disease. Some go further. One influential scientist remarked that this work is "the ultimate answer to the commandment 'Know thyself.' ""

The decision to fund this Initiative, the largest biology project in …

Not So Cold An Eye: Richard Posner's Pragmatism, Jason S. Johnston

Vanderbilt Law Review

Over the past twenty odd years, Judge Richard Posner has established himself as one of the most creative and influential thinkers in the history of American law. His work divides into two parts: the prejudicial corpus, which is devoted almost entirely to the comprehensive economic analysis of law,' and the postjudicial corpus, which treats issues involving what may be called the theory of judging and courts--that is, the normative theory of how judges should decide cases and how courts should be organized. This division is rough and wavering, for Posner's work prior to his appointment to the federal bench often …