Law Commons^™

Can Law Survive Legal Education?, Ernest J. Weinrib

Vanderbilt Law Review

Legal education exists at the confluence of three activities: the practice of law, the enterprise of understanding that practice, and the study of law's possible understandings within the context of a university. The first of these, the practice of law, consists of the activities consciously governed by law, including, for example, lawyers giving legal advice, citizens contemplating the legality of prospective actions, legislators creating law within the limits of their jurisdiction, and judges determining the rights and duties of litigants. It thus comprehends the entire field of legal institutions, legal doctrine, and legal interaction. The second activity, the enterprise of …

A Lawyer's Lament: Law Schools And The "Profession" Of Law, Wayne S. Hyatt

Vanderbilt Law Review

Back in the mid-eighties, I offered a first year, second semester "un-elective" called American Legal Theory and American Legal Education. It scrunched together two history courses I had taught irregularly before. I liked the way the two topics fit together and still do, but with so many recalcitrant law students enrolled in it, the course was an unmitigated disaster. As is always the case with such attempts at offering perspective, amidst the shambles I had acquired at least a few devoted students. At the end of the last class one of them came up to the front to ask a …

Inside The Law School Classroom: Toward A New Legal Realist Pedagogy, Elizabeth Mertz

Vanderbilt Law Review

In recent years, the legal academy has been experiencing a strong renewed interest in empirical legal research. Referred to by various analysts as a "new legal realism" or as "empirical legal studies," this restored focus on the social sciences in many ways echoes an earlier era of legal realism in American law, with some important differences.' . . .

This Article combines these two themes: empirical research on law and careful examination of legal education. It reports on an empirical study of legal education, which I have been conducting under the auspices of the American Bar Foundation (a research institute …

Equitable Estoppel And The Compulsion Of Arbitration, Alexandra A. Hui

Vanderbilt Law Review

Freedom of contract is a longstanding principle deeply rooted in American jurisprudence, protected by the Contract Clause and by the Due Process Clauses of the Fifth and Fourteenth Amendments.' Because of the legal system's high regard for freedom of contract, parties are free to negotiate virtually all issues, thus creating rights and limiting duties and obligations to one another.

In exercising this freedom to contract, parties often negotiate an arbitration clause. These clauses, also referred to as "predispute arbitration agreements," are contractual provisions agreed to in advance of any dispute that require a party to submit any and all future …

2007 Symposium On The Future Of Legal Education, Nicholas S. Zeppos

Vanderbilt Law Review

Like the proverbial elephant, law school appears different when perceived from different perspectives. During my twenty years as a law professor, I saw law school as a professional training program, a legal research institute, and a wonderful group of academic colleagues. The articles in this Symposium on the Future of Legal Education, based on a conference held at Vanderbilt in spring of 2006, generally view law school from a similar perspective. Now that I'm a Provost, my perspective is different. This raises some new issues, but it also underscores the basic theme of the Symposium. Law schools, like business schools, …

A Damn Hard Thing To Do, John H. Schlegel

Vanderbilt Law Review

Back in the mid-eighties, I offered a first year, second semester "un-elective" called American Legal Theory and American Legal Education. It scrunched together two history courses I had taught irregularly before. I liked the way the two topics fit together and still do, but with so many recalcitrant law students enrolled in it, the course was an unmitigated disaster. As is always the case with such attempts at offering perspective, amidst the shambles I had acquired at least a few devoted students. At the end of the last class one of them came up to the front to ask a …

The Law School Matrix: Reforming Legal Education In A Culture Of Competition And Conformity, Susan Sturm, Lani Guinier

Vanderbilt Law Review

Law school reform is in the air. Many reformers agree that the prevailing law school model developed in the nineteenth century does not adequately prepare students to become effective twenty-first century lawyers. Langdell's case method, designed around private domestic law, appellate cases, and the Socratic method, increasingly fails to teach students "how to think like a lawyer" in the world students will occupy. The curriculum over-emphasizes adjudication and discounts many of the important global, transactional, and facilitative dimensions of legal practice. Law school has too little to do with what lawyers actually do and develops too little of the institutional, …

Intangible Takings, Susan Eisenberg

Vanderbilt Law Review

The Constitution protects us from our own best intentions."' During times of grave emergency, the powers granted and reserved by the federal government remain unaltered in order to avoid shortsighted solutions that would, in the long run, be worse than the current crisis. Even a simple cure for appreciable suffering may have larger implications, and the rule of law does not know whether it is constraining good or aiding evil.

In the aftermath of Hurricane Katrina, the most costly natural disaster in U.S. history, the Federal Communications Commission ("FCC") imposed a shortsighted resolution that tested the boundaries of its authority. …

A Case For Another Case Method, Todd D. Rakoff, Martha Minow

Vanderbilt Law Review

American legal education is pretty good. Generally speaking, it is rigorous, and generally speaking, students learn a lot. After three years in law school, students usually leave not only with knowledge of specific legal materials, but also with the sharp analytic skills and ability to work in existing legal institutions that people expect from lawyers. But our society is full of new problems demanding new solutions. Less so than in the past-less than in the 1930s and less than in the 1960s-are lawyers inventing those solutions. Much of the action is moving to graduates trained in other disciplines and professions, …

Taking Law And _______ Really Seriously: Before, During And After "The Law", Carrie Menkel-Meadow

Vanderbilt Law Review

Any consideration of what legal education should consist of must begin with the question of what "law," as a field of study, is. Whether a study of "the law" is science, philosophy, political science, or a field unto itself, or is more like a social science study of the norms and behaviors that human beings create and enforce for their self- governance, what the field is should have something to do with how it is studied.

So, one can ask, what is the object of study when one studies "the law"? Court decisions and interpretations (doctrine) and statutes and regulations …

Making Lawyers (And Gangsters) In Japan, Mark D. West

Vanderbilt Law Review

How insulting to have juxtaposed "lawyers" and "gangsters" in the title, to hint that lawyers are not engaged in a supremely noble profession, to insinuate a commonality between counselors-at-law and godfathers. There will be no explicit comparisons here, for this is an Essay about Japanese legal education, not La Cosa Nostra. Instead I offer a description of how Japan trains its lawyers and what lawyers in Japan do. I'll also talk a bit about how gangsters in Japan are trained, and what they do. Perhaps a serendipitous connection will present itself.

I begin by briefly discussing the old system of …

Multi-Tiered Marriage: Ideas And Influences From New York And Louisiana To The International Community, Joel A. Nichols

Vanderbilt Journal of Transnational Law

This Article contends that society in the United States needs to hold a genuine discussion about alternatives to current conceptions of marriage and family law jurisdiction. Specifically, the Article suggests that the civil government should consider ceding some of its jurisdictional authority over marriage and divorce law to religious communities that are competent and capable of adjudicating the marital rites and rights of their respective adherents. There is historical precedent and preliminary movement toward this end--both within and without the United States--which might serve as the framework for further discussions. Within the United States, the relatively new covenant marriage statutes …

How Can Japanese Corporations Protect Confidential Information In U.S. Courts?, Masamichi Yamamoto

Vanderbilt Journal of Transnational Law

U.S. courts have seen a significant increase in the number of lawsuits involving both U.S. and Japanese corporations. In deciding these cases, U.S. courts may have to choose how to apply the attorney-client privilege to in-house lawyers retained by corporations in Japan, where the legal system and discovery rules are fundamentally different from those of the United States. U.S. courts would most likely analyze these situations under the Remy-Martin/Minolta test and recognize the attorney-client privilege only for managers of legal departments in Japanese corporations, not for other non-bengoshi (non-licensed) in-house lawyers. This will change in the near future, however, when …

The Intercountry Adoption Act Of 2000: The United States' Ratification Of The Hague Convention On The Protection Of Children, And Its Meager Effect On International Adoption, Kate O'Keeffe

Vanderbilt Journal of Transnational Law

This Note explores the effect of the United States' ratification of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Convention) via passage of the Intercountry Adoption Act of 2000 (IAA). Through intercountry adoption, countless children have been given homes and opportunities in the U.S. that would not have been available to them in their countries of origin. With the increased popularity of intercountry adoption, however, have come tragic consequences for many children in foreign countries, who are exploited by those involved in the adoption process. This Note contends that the IAA, as …

Judicial Interference: Redefining The Role Of The Judiciary Within The Context Of U.S. And E.U. Merger Clearance Coordination, Yasmine B. Carson

Vanderbilt Journal of Transnational Law

In December 2003, Sony and Bertelsmann AG (BMG)sought approval from the Federal Trade Commission and European Commission to effectuate a joint venture between the two companies. Remarkably, almost two years after both antitrust authorities had cleared the Sony-BMG joint venture, the Court of First Instance annulled the European Commission's decision to approve the transaction. This groundbreaking decision by the Court of First Instance has the potential to undermine coordination efforts between antitrust authorities in the United States and the European Union, as well as to frustrate the predictability and efficiency that businesses need in merger regulation. Using the regulatory review …

Multinational Enterprises And Workplace Reproductive Health: Extending Corporate Social Responsibility, Rebecca K. Atkins

Vanderbilt Journal of Transnational Law

Corporate social responsibility is a relatively new approach to the protection of human rights. While the human rights to whole-body health and workplace health are long-standing, the right to reproductive health is a new topic of discussion. This Note examines the right to reproductive health in the workplace and proposes that it would be best protected by imposing an affirmative duty on multi-national enterprises via corporate social responsibility. Origins of human rights, corporate social responsibility, and reproductive health are discussed before turning to the developing stalemate between multi-national enterprises and less developed countries.

Creating The Right Mentality: Dealing With The Problem Of Juror Delinquency In The New South Korean Lay Participation System, Eric Seo

Vanderbilt Journal of Transnational Law

The Judiciary Reform Committee of South Korea has planned to implement a five year pilot program that will allow public participation in trials. This will be the first time in the nation's judicial history that lay participation will be used. The format of the pilot program will be a mixture of the U.S.-style jury system and the German lay assessor system, with the program being more akin to the U.S. system. As South Korea has never had a lay participation system, it has a unique opportunity to create a system that will avoid problems associated with lay participation. This Note …

An Ounce Of Prevention: Improving The Preventative Measures Of The Trafficking Victims Protection Act, Takiyah R. Mcclain

Vanderbilt Journal of Transnational Law

Trafficking is a multi-billion dollar industry that affects the lives of millions of people, especially young girls and women. In an effort to combat this issue, the United States enacted the Trafficking Victims Protection Act in 2000. The Act has had some positive effects on the trafficking industry, but its preventative measures overlook or fail to deal sufficiently with some key factors: human rights issues, gender and economic inequalities, and sensationalism of the sex industry.

This Note discusses these three issues and their importance in establishing more effective preventative measures. Additionally, this Note looks to two approaches to trafficking, the …

Harmonization Through Condemnation: Is New London The Key To World Patent Harmony?, Max S. Oppenheimer

Vanderbilt Journal of Transnational Law

Since 1790, when two U.S. patent applicants have claimed the same invention, the patent has been awarded to the first inventor. Today, the United States stands alone in the industrialized world, and many argue that the United States should, in the interest of world patent harmony, change its system so as to award a contested patent to the first applicant. Of the arguments advanced to justify the change, the only ones that withstand scrutiny are that "all the other countries are doing it" and the hope that some concessions in other aspects of intellectual property or trade might be obtained …

India-Pakistan Relations: Legalization And Agreement Design, Sandeep Gopalan

Vanderbilt Journal of Transnational Law

This Article examines agreements between India and Pakistan to determine if there are design features that played a part in their success or failure. The analysis draws on insights from scholarship at the intersection of international relations theory and international law. The Article attempts to show that India and Pakistan share attributes that are particularly well suited for a positive correlation between increased legalization and compliance, that the law plays a role in norm strengthening, and that legalizing agreements between the two states can create compliance constituencies that act as constraining influences on governments.

The Legal And Social Implications Of Insolvent Cross-Border Real Estate Developers, Edward T. Canuel

Vanderbilt Journal of Transnational Law

This article analyzes the phenomena associated with cyclical real estate markets, discussing the theoretical and market influences which motivate developers during this cycle. Fluctuating commercial real estate markets necessitate a focus on market upswings and downswings, and consideration of the roles and motivations of a wide array of actors, ranging from industry analysts and developers to lenders. Legal considerations, particularly during real estate downturns, or busts, include a variety of issues, particularly if the commercial real estate developers in question conducted business internationally. This Article details the theoretical and economic conditions found during real estate market cycles, with special emphasis …

Food Safety And Security: What Tragedy Teaches Us About Our 100-Year-Old Food Laws, Caroline S. Dewaal

Vanderbilt Journal of Transnational Law

The United States food safety system is antiquated and failing. The laws that form the foundation of our food protection and govern the United States Department of Agriculture (USDA) and the Food and Drug Administration (FDA) were enacted over 100 years ago. While some new powers were given to FDA with the Bioterrorism Act of 2002, funding has not kept pace. Safe Food International (SF), a coalition of consumer organizations from around the world, created a set of guidelines outlining an ideal national food safety program. The current system in the United States falls short of that goal. The outbreaks …

A Paper Tiger With Bite: A Defense Of The War Powers Resolution, Michael B. Weiner

Vanderbilt Journal of Transnational Law

The War Powers Resolution (WPR) has led a beleaguered existence. Since its enactment in 1973, it has been labeled ineffectual and useless. This Note proves, however, that to review presidential unilateral uses of force since 1973 is to find a spirit of compliance with the WPR, as these uses of force have been characterized by their brevity and their lack of spilled U.S.blood. While minor departures from the WPR's black-letter requirements are conceded, none of these uses of force have developed into, or even resembled, Vietnam-esque quagmires. As a result, this Note contends that the WPR has had a positive …

Foodborne Infections And The Global Food Supply: Improving Health At Home And Abroad, Robert V. Tauxe

Vanderbilt Journal of Transnational Law

In recent years, fourteen percent of the U.S. food supply has been imported from other countries, including many fresh and perishable foods. Although most outbreaks of illness and individual cases are related to foods from the United States, large and unusual outbreaks have been traced to imported foods that were likely contaminated in the country of origin. Investigation of these outbreaks requires collaboration across several disciplines as well as across international borders. Successful investigation can not only control the original problem, but can also inform public authorities in both countries about the need for strategies to prevent similar outbreaks from …

Elite Law Firm Mergers And Reputational Competition, Bruce E. Aronson

Vanderbilt Journal of Transnational Law

Although rapid law firm growth has persisted since the 1980s, the acceleration of this trend over the last decade by means of mergers is puzzling. Why would normally conservative law firms embark on a merger strategy that appears to encompass significant risk and uncertain benefits? Is this trend a peculiarly U.S. phenomenon?

Most of the popular explanations for law firm mergers focus on a single factor: Law firms everywhere cite strikingly similar reasons based on a presumed client demand for "one-stop shopping." This Article contributes to providing a more robust, multi-causal explanation for law firm behavior through a comparative study …

Empathizing With France And Pakistan On Agricultural Subsidy Issues In The Doha Round, Raj Bhala

Vanderbilt Journal of Transnational Law

Among the most contentious issues (if not the most contentious issue) in the Doha Round negotiations are agricultural subsidies. Developed countries stand accused of selfish adherence to domestic support and export subsidies that impoverish farmers in developing countries. Developing countries are blamed for self-inflicted wounds, caused by stubborn adherence to protectionist policies, covering both agricultural and industrial sectors. Agricultural subsidy cuts, as well as increased market access, are politically impossible for developed countries to concede without reciprocal access from developing countries, not only on farm products, but also in non-agricultural markets and service sectors.

There has been, and continues to …

The Role Of International Agreements In Achieving Food Security, Jack A. Bobo

Vanderbilt Journal of Transnational Law

This Article discusses how international agreements impact the ability of science and technology to enhance food security. International agreements, domestic laws, and regulations have the power to promote scientific research and the adoption of new technology through effective, efficient, and predictable science-based regulatory systems, or to impede development and adoption of new technology by miring it in burdensome or unnecessary regulations. This Article examines the disparate impacts of international agreements on food security through a case study of agricultural biotechnology. In particular, the Article looks at the principles and guidelines for risk assessment developed by the Codex Alimentarius Commission and …

The Limits Of International Human Rights Law And The Role Of Food Sovereignty In Protecting People From Further Trade Liberalization Under The Doha Round Negotiations, Wenonah Hauter

Vanderbilt Journal of Transnational Law

International free trade agreements under the auspices of the World Trade Organization (WTO) seriously undermine the international human right to adequate food. Conceivably, those deprived should be able to seek redress under Article 11 of the International. Covenant on Economic, Social, and Cultural Rights (ICESCR), which spells out the right to adequate food. Unfortunately, while the concept of the right to adequate food has developed substantially since its inception, its implementation has been slow. It is not a well-developed tool for individuals or the groups representing them to redress harms that will likely result from the current Doha Round negotiations …

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

Vanderbilt Journal of Transnational Law

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

Still, while the amount of food involved is comparatively …

Legislative Implementation Of The Food Chain Approach, Jessica Vapnek

Vanderbilt Journal of Transnational Law

Food safety is an essential element of food security, since "adequate" food means food that is not only available, but also safe. Food safety systems have traditionally focused on end-product testing, which is an unsatisfactory means of ensuring safe food. An increasing focus on prevention has spurred interest in a food chain approach, which aims to control all steps in the food chain from production to consumption. Although the approach has drawn international attention in recent years, national lawmakers have lacked guidance on its implementation. This Article serves that need. Part II of the Article describes the international backdrop to …