Law Commons^™

Ai Derivatives: The Application To The Derivative Work Right To Literary And Artistic Productions Of Ai Machines, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article predicts that there will be attempts to use courts to try to broaden the derivative work right in litigation either to prevent the use of, or claim protection for, literary and artistic productions made by Artificial Intelligence (AI) machines. This Article considers the normative valence of, and the (significant) doctrinal pitfalls associated with, such attempts. It also considers a possible legislative alternative, namely attempts to introduce a new sui generis right in AI productions. Finally, this Article explains how, whether such attempts succeed or not, the debate on rights (if any) in productions made by AI machines is …

The Ideological Divide On Gun Regulation, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This article examines survey results on how ideology and vulnerability affect attitudes toward gun regulation. It finds that ideology is more of a driver of differences in these views than the personal risk of gun violence. Nonetheless, the survey data find majority support among opposed political groups for some gun regulations-- including some of the regulations incorporated in the new federal legislation.

Honoring The Public Trust: Curbing The Bane Of Physician Sexual Misconduct, Rebecca H. Allensworth, K. S. Sindhu, Et Al.

Vanderbilt Law School Faculty Publications

The Federation of State Medical Boards defines physician sexual misconduct as any "behavior that exploits the physician-patient relationship in a sexual way." Although several attempts have been made in recent years to clarify its incidence in the United States, physician sexual misconduct is almost certainly underreported. Physician sexual misconduct represents a severe and irreversible violation of the compact underlying the patient–physician relationship and can have far-reaching consequences on the lives of patients and their families. In addition, the credibility of and trust in physicians, both essential to the provision of medical care, could well erode in the eyes of the …

Judicial Retention Elections For State Appellate Judges: The Implications Of The Ballot-Access Cases, James Blumstein

Vanderbilt Law School Faculty Publications

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states’ requirements that judges be elected. But …

The Reckoning: The Return Of Genomic Results To 1444 Participants Across The Emerge3 Network, Ellen W. Clayton, Kathleen A. Leppig, Et Al.

Vanderbilt Law School Faculty Publications

The goal of Electronic Medical Records and Genomics (eMERGE) Phase III Network was to return actionable sequence variants to 25,084 consenting participants from 10 different health care institutions across the United States. The purpose of this study was to evaluate system-based issues relating to the return of results (RoR) disclosure process for clinical grade research genomic tests to eMERGE3 participants.

The Political Economy Of Wto Exceptions, Timothy Meyer

Vanderbilt Law School Faculty Publications

In a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism-essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries around the world debate new supply chain regulations to address public health issues arising from COVID-19 and shortages in critical components like computer chips. These public policy initiatives-addressing the central environmental, public health, and economic issues of the day-all likely violate World Trade Organization (WTO) rules governing …

Criminal Injustice, Edward Rubin

Vanderbilt Law School Faculty Publications

As its title suggests, Why the Innocent Plead Guilty and the Guilty Go Free is a wide-ranging critique of our criminal justice system. While it is hardly the first, it offers a number of distinctive insights. Most of the now voluminous work on this topic is written by scholars, policy analysts, or journalists and is addressed to the legislature or the executive. This certainly makes sense. External observers are well positioned to critique a system that punishes without purpose, and the major determinants of its dysfunction are the legislature that enacts the criminal law and the executive that enforces it. …

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

Vanderbilt Law School Faculty Publications

For decades, the United States Patent and Trademark Office ("PTO") has required trademark owners to comply with sundry nontrademark laws governing the sale of their trademarked goods and services. Pursuant to this "lawful use requirement," the Agency has refused or even cancelled registration of thousands of marks used on everything from Schedule 1 controlled substances to mislabeled soap. This Article subjects the Agency's lawful use requirement to long-overdue scrutiny. It suggests that in requiring compliance with other laws for registration, the PTO has lost sight of the one statute it is supposed to administer. In the process, the Agency has …

What Property Does, Christopher Serkin

Vanderbilt Law School Faculty Publications

For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new …

The False Allure Of The Anti-Accumulation Principle, Kevin Stack, Michael Herz

Vanderbilt Law School Faculty Publications

Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power-—legislative, executive, and judicial—-in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, …

Authoring Prior Art, Joseph P. Fishman, Kristelia Garcia

Vanderbilt Law School Faculty Publications

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow …

Equal Speech Protection, Francesca L. Procaccini

Vanderbilt Law School Faculty Publications

Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection--and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order …

Bringing Predictability To The Chaos Of Punitive Damages, W. Kip Viscusi, Benjamin J. Mcmichael

Vanderbilt Law School Faculty Publications

Punitive damages remain unique in the American legal system. Awarded in the civil context with none of the protections offered in criminal law, courts levy punitive damages to punish and deter. The Supreme Court of the United States has clearly stated that courts may only seek to achieve these two goals when imposing punitive damages. A closer reading of the Court's punitive damages jurisprudence, however, reveals another goal that has largely been ignored: predictability. Unlike punishment and deterrence, predictability is not a purpose for which to award punitive damages. Instead, the Court requires that, when awarded, the level of punitive …

The Hierarchy And Performance Of State Recycling And Deposit Laws, W. Kip Viscusi, Caroline Cecot

Vanderbilt Law School Faculty Publications

States can foster recycling of waste materials through a variety of policies. The majority of the states have recycling laws for waste products such as glass, plastic, cans, and paper. These laws vary in terms of stringency. The hierarchy we developed orders the laws as follows: laws that make recycling mandatory, laws that require the provision of recycling opportunities, laws that require the development of a recycling plan, and laws that specify a recycling goal. Based on national recycling data with over 400,000 observations, we find that the amount of recycling households undertake increases with the degree of stringency of …

The Public Right To Education, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Public education is "the most important function of state and local government" and yet not a "fundamental right or liberty." This Article engages one of constitutional law's most intractable problems by introducing "the public right to education" as a doctrinal pathway to a constitutional right to education process in three steps. First, it identifies that the otherwise right-to-education foreclosing case, San Antonio Independent School District v. Rodriguez, only contemplated education as a fundamental right or liberty interest. Second, by identifying public education as a due process protected property interest, this Article presents a viable pathway for circumventing Rodriguez. Third, mindful …

Without Accommodation, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

Under the Americans with Disabilities Act (ADA), workers with disabilities have the legal right to reasonable workplace accommodations provided by employers. Because this legal right is unique to disabled workers, these workers could, in theory, enjoy greater access to the types of accommodations that are desirable to all workers including the ability to work from home, to work flexible hours, and to take leave. This Article compares access to these accommodations, which have become increasingly desirable during the COVID-19 pandemic, between disabled workers and nondisabled workers. Using 2017-2018 data from the American Time Use Survey's Leave and Job Flexibilities Module, …

The Regulation Of Foreign Platforms, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In August 2020, the Trump Administration issued twin executive orders banning tech platforms TikTok and WeChat from the United States. These were not the first actions taken by the Trump Administration against Chinese tech platforms. But more than any other, the ban on TikTok sparked immediate outrage, confusion, and criticism.

This Article offers a new framework for thinking about national security restrictions on foreign tech platforms. A growing body of scholarship draws on principles from regulated industries, infrastructure industries, and public utilities to show how the regulation of tech platforms is not only viable but also has significant precedent and …

Equality In The Streets: Using Proportionality Analysis To Regulate Street Policing, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The racially disparate impact and individual and collective costs of stop and frisk, misdemeanor arrests, and pretextual traffic stops have been well documented. Less widely noticed is the contrast between Supreme Court case law permitting these practices and the Court's recent tendency to strictly regulate technologically enhanced searches that occur outside the street policing setting and that--coincidentally or not--happen to be more likely to affect the middle class. If, as the Court has indicated, electronic tracking and searches of digital records require probable cause that evidence of crime will be found, stops and frisks should also require probable cause that …

Disclosure Of Private Climate Transition Risks, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article identifies a gap in the securities disclosure regime for climate change and demonstrates how filling the gap can improve fi nancial disclosures and accelerate climate change mitigation. Private climate initiatives have proliferated in the last decade. Often led by advocacy groups, these private initiatives have used naming and shaming campaigns and other means to induce investors, lenders, insurers, retail customers, supply chain customers, and employees to pressure firms to engage in climate change mitigation. Based on an empirical assessment of the annual reports filed with the Securities and Exchange Commission (SEC) by Fortune 100 firms and the largest …

The Pandemic Legacy: Accounting For Working-From-Home Emissions, Michael P. Vandenbergh, Sharon Shemake

Vanderbilt Law School Faculty Publications

The COVID-19 pandemic has resulted in millions of employees working from home, a development that is challenging public and private standards for reporting and reducing greenhouse gas emissions. Under these standards, corporations disclose the emissions from large buildings and the power plants that supply them with energy, but most do not report other types of emissions. When employees shift from working at an office to working at home, the corporate emissions appear to have decreased even though they have simply shifted beyond the boundary of the reporting requirement. This move creates greenwashing risks--the ability to claim that corporate greenhouse gas …

Russia, Ukraine, And The Future World Order, Ingrid W. Brunk, Monica Hakimi

Vanderbilt Law School Faculty Publications

Russia's invasion of Ukraine, initiated on February 24, 2022, is among the most—if not the most—significant shocks to the global order since World War II. This piece assesses the stakes of the invasion for the core principles that lie at the heart of contemporary international law and the world order that it has helped to create. We argue, relying in part on the other contributions to the October 2022 agora on Ukraine in the American Journal of International Law, that however this war ends, it will reshape, in ways large and small, the world we all inhabit.

A Compulsory Solution To The Machine Problem, Cole G. Merritt

Vanderbilt Law School Faculty Publications

Artificial Intelligence (AI) is already disrupting and will likely continue to disrupt many industries. Despite the role AI already plays, AI systems are becoming increasingly powerful. Ultimately, these systems may become a powerful tool that can lead to the discovery of important inventions or significantly reduce the time required to discover these inventions. Even now, AI systems are independently inventing. However, the resulting AI-generated inventions are unable to receive patent protection under current US patent law. This unpatentability may lead to inefficient results and ineffectively serves the goals of patent law.

To embrace the development and power of AI, Congress …

Promoting Cost-Effective Grid Modernization, Jim Rossi

Vanderbilt Law School Faculty Publications

Recent legislative reforms enacted in several states grant incumbent utilities a right-of-first-refusal (ROFR) over new electric power transmission lines. Regional grid planners, who typically defer to state law, often avoid running competitive solicitations for regional transmission projects located in these states. As a result, state ROFR laws expose customers to excessive regional transmission costs.

Such state ROFR laws are constitutionally dubious, and ultimately harmful to customers. Customers affected by ROFR laws do not realize the cost savings and other benefits of competition, including superior cost containment and innovative grid modernization solutions. States can promote cost-effective grid modernization by encouraging competitive …

Identifying The Plessy Remainder: State Exploitation Of Private Discriminatory-Impact Actions, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Public education in the U.S. is arguably more racially segregated now than it was in 1954, when the U.S. Supreme Court declared in Brown v. Board of Education "that in the field of public education the doctrine of separate but equal' has no place." Although scholars may differ in the extent they believe that racial integration might be necessary for educational equality, most agree that educational segregation, whether imposed by law, socioeconomics, or happenstance, is not likely to reverse in any meaningful way in the near future.

In the absence of a recognized federal right to education, federal-court- supervised school …

The Overreach Of Limits On 'Legal Advice', Lauren Sudeall

Vanderbilt Law School Faculty Publications

Nonlawyers, including court personnel, are typically prohibited from providing legal advice. But definitions of “legal advice” are unnecessarily broad, creating confusion, disadvantaging self-represented litigants, and possibly raising due process concerns. This Essay argues for a narrower, more explicit definition of legal advice that advances, rather than undercuts, access to justice.

The Consensus Rule: A New Approach To Scientific Evidence, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Founded on good intentions but unrealistic expectations, the dominant Daubert framework for handling expert and scientific evidence should be scrapped. Daubert asks judges and jurors to make substantively expert determinations, a task they are epistemically incompetent to perform as laypersons. As an alternative, this Article proposes a new framework for handling expert evidence. It draws from the social and philosophical literature on expertise and begins with a basic question: How can laypersons make intelligent decisions about expert topics? From there, it builds its evidentiary approach, which ultimately results in an inference rule focused on expert communities. Specifically, when dealing with …

Sequencing In Damages, Edward K. Cheng, Ehud Guttel, Yuval Procaccia

Vanderbilt Law School Faculty Publications

Tort law contains multiple doctrines governing the assignment of liability and the calculation of damages. But in what sequence should courts apply these doctrines? Does it matter, for example, whether a court applies comparative fault before or after mitigation of damages? The answer, rather surprisingly, is that sequencing does matter, and it can substantially affect the compensation that a tort victim ultimately receives. Yet the existing case law on sequencing is ad hoc, inconsistent, and undertheorized, and the issue has been entirely overlooked by the academic literature. In this Article, we introduce and examine the question of sequencing. We offer …

Direct-To-Consumer Genetic Testing, Ellen W. Clayton, Et Al.

Vanderbilt Law School Faculty Publications

Direct-to-consumer genetic testing is marketed as a tool to uncover ancestry and kin. Recent studies of actual and potential users have demonstrated that individuals’ responses to the use of these tests for these purposes are complex, with privacy, disruptive consequences, potential for misuse, and secondary use by law enforcement cited as potential concerns. We conducted six focus groups with a diverse sample of participants (n = 62) who were aware of but had not used direct-to-consumer genetic tests, in an effort to understand more about what people considering these tests think about the potential value, risks, and benefits of such …

Affirmative Action And The Leadership Pipeline, Joni Hersch

Vanderbilt Law School Faculty Publications

Recent events have brought heightened attention to racial injustice in the United States, which includes among its legacies a dearth of Black people in influential positions that shape society. But at the same time that the United States has turned its attention to diversity in leadership positions, the already narrow pipeline for those from underrepresented groups is likely to narrow even further in the near future. Specifically, the pipeline to influential positions in society typically flows from an elite education. Race-conscious affirmative action in higher education admissions is currently permitted in order for universities to meet their compelling interest in …

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

Vanderbilt Law School Faculty Publications

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

For many tenants facing eviction, elements of the …