Law Commons^™

The Status Of State And Nonstate Actors In Postwar Hostilities: Restoring The Rule Of Law To Us Targeted Killing Operations, Claire Finkelstein

Vanderbilt Journal of Transnational Law

With the killing of Iranian general Qassim Soleimani, the United States crossed a new frontier in the use of extrajudicial lethal operations outside of armed conflict. As a state actor, Soleimani once would have been entirely off-limits as a target outside the context of a formal armed conflict between the United States and Iran. The Trump administration's choice to conduct a one-off strike on a state military leader indicates that conflicts among state adversaries are increasingly fought using the hybridized tools of the war on terror. This Article will argue that the increasing use of such techniques and the perceived …

How To Make The Perfect Citizen? Lessons From China's Social Credit System, Liav Orgad, Wessel Reijers

Vanderbilt Journal of Transnational Law

"How to make the perfect citizen?" This has been one of the questions driving the construction of the Chinese Social Credit System: a technology-driven project that aims to assess, evaluate, and steer the behavior of Chinese citizens. After presenting social credit systems in China's public and private sectors (Part II), the Article provides normative standards to distinguish the Chinese system from comparable systems in liberal democracies (Part III). It then discusses the concept of civic virtue, as implemented by the Social Credit System, claiming that it creates a new form of governance, "cybernetic citizenship," which fundamentally changes the essence of …

"Authoritarian International Law" In Action? Tribal Politics In The Human Rights Council, Yu-Jie Chen

Vanderbilt Journal of Transnational Law

The international human rights regime, a product of post- war liberalism, is increasingly falling under the shadow of authoritarian countries that try to influence the regime in favor of their illiberal agendas. This Article uses the United Nations Human Rights Council (HRC) as a prism to examine the changing dynamics among leading authoritarian and democratic actors as they contend to shape global human rights norms and institutions. This Article argues that China, the most resourceful authoritarian party-state, is engaging in what can be understood as tribal international politics, forming coalitions with authoritarian governments and developing countries that have different state …

Breaking The Status Quo Of International Design Law: How The United States' Design Law Frustrates The Purpose Of The Hague Agreement, Nicholas P. Mack (J.D. Candidate)

Vanderbilt Journal of Transnational Law

This Note explores how the United States' substantive law frustrates the purpose of an international procedural agreement. The Hague Agreement Concerning the International Registration of Industrial Designs revolutionized the process of applying for industrial design protections on a global scale. The Hague Agreement's purpose is to support easily and efficiently acquired industrial design protections in contracting parties to the agreement by simplifying procedures for obtaining protection. The United States-a country without a coherent and dedicated industrial design law-joined this agreement with effect in 2015, allowing designers around the world to easily apply for industrial design protections in the United States. …

A Tribe Divided: The Threat Of The Loss Of Tribal Autonomy And Culture Facing Transnational Tribes On The Northern And Southern Borders Of The United States, Jacob Moeller

Vanderbilt Journal of Transnational Law

Indigenous peoples in the northern and southwestern regions of the United States face challenges to the preservation of their cultures, economies, governments, and family relations as a result of the international borders that have bisected their traditional lands. While there is a history of treatymaking and governmental policy attempting to address these issues, the lack of an effective solution and concrete. border policy for tribe members in these regions leaves them without recourse. Some scholars suggest universal US citizenship for tribe members, others suggest tribe-specific legislation, and some even suggest that the tribes pursue litigation against the United States to …

Limits Of The Rule Of Law: Negotiating Afghan "Traditional" Law In The International Civil Trials In The Czech Republic, Tomas Ledvinka, James M. Donovan

Vanderbilt Journal of Transnational Law

Drawing on ethnographic research of judicial cases in the Czech Republic which involve the law in migrants' countries of origin, this Article outlines how multiple strategies handle encounters with the legal-cultural differences of Afghanistan in order to neutralize what may be called the "alterity" of law. The Article suggests that far from being analytical tools, concepts such as "context," "culture," and "customary" are strategically used by courts to neutralize unsettling aspects of foreign Afghan legalities. Further, it applies Leopold Pospisil's ethnological concept of legal authority as a vehicle for reinterpreting the contextual differentiation of Afghan "traditional" law as an alternative …

The Ministerial Exception: Our Lady Of Guadalupe School And Antidiscrimination Employment Laws, Shelly A. Yeini

Vanderbilt Journal of Transnational Law

The Ministerial Exception (ME) is a legal doctrine providing that antidiscrimination employment laws do not apply to the relationship between religious institutions and their ministers. Such a notion appears in various democracies, as it aims to confront a shared problem: the attempt to solve the clash between antidiscrimination employment laws and religious autonomy. Liberal democracies strive to protect employees from discrimination, as well as to accommodate freedom of religion, which cannot be fulfilled without the existence of religious organizations. While being able to choose their staff is at the heart of the existence of religious institutions, the fulfillment of such …

Solving The Unsolvable? How A Joint Development Zone Could Extinguish The Natural Gas Conflict In The Eastern Mediterranean, Kimberlyn Hughes

Vanderbilt Journal of Transnational Law

Recently, the Cyprus conflict has manifested itself in the competing claims of Greek Cyprus, Turkish Cyprus, and Turkey over their maritime jurisdictions. During the past decade, the discovery of natural gas exacerbated these preexisting claim disputes. Solutions have been nonexistent due to the unwillingness of the parties to conduct multilateral negotiations or use international courts and are complicated by the fact that not all parties are signatories to the United Nations Convention on the Law of the Sea, an instrument most countries defer to in comparable disagreements. While prior publications have proposed mechanisms that could solve maritime disputes in this …

Unilateral Cyber Sanctions: Between Questioned Legality And Normative Value, Iryna Bogdanova, Maria Vasquez Callo-Muller

Vanderbilt Journal of Transnational Law

The current legal vacuum regarding binding international norms regulating malicious conduct in cyberspace has paved the way for the emergence of a unilateral tool: cyber sanctions. They have already been introduced by the United States, the European Union, and the United Kingdom. Notwithstanding their obvious importance, their interrelations with international law- especially international economic law-have remained largely unexplored in academic research. This gap is perplexing given the fact that the existing unilateral cyber sanctions have been formulated in such a way as to be prone to misuse. In particular, they bear a significant potential to disrupt economic relations and undermine …

Quilombo Land Rights, Brazilian Constitutionalism, And Racial Capitalism, Karen Engle, Lucas Lixinski

Vanderbilt Journal of Transnational Law

The 1988 Brazilian Constitution, the first in a wave of new democratic and multicultural constitutions in Latin America, contains a transitory provision guaranteeing collective land rights to quilombo communities. These communities are composed of quilombolas, primarily descendants of formerly enslaved Africans, many of whom had escaped slavery. A 2003 executive decree to implement the land title provision became the subject of a constitutional challenge lasting over fifteen years. When the Brazilian constitutional court eventually upheld the decree in 2018, it relied heavily on the work of US political theorist Nancy Fraser to justify quilombo land title as both recognition and …

The Fighting's Done, Now Pay Me: Investment Treaties, War And State Liability, Thomas C. Hildebrand, Iii

Vanderbilt Journal of Transnational Law

Where major conflict erupts, major state liability follows. Sri Lanka, Zaire, Libya, and Syria have all found themselves subject to extensive liability to investors under bilateral investment treaties for harms incurred in the midst of armed conflicts raging within their borders. This Note argues that war-loss clauses, present in nearly every bilateral investment treaty, should be interpreted to create a lex specialis regime limiting investor compensation following armed conflicts. Arbitral tribunals, however, have consistently refused to apply war-loss clauses in this manner. This has lead to an over-extension of state liability to foreign investors in the wake of armed conflict. …

Underwater Mortgages For Underwater Homes: The Elimination Of Signals In The Coastal Lending Market, Peyton J. Klein

Vanderbilt Law Review

Climate change and sea level rise threaten to increase the default risk of mortgages on homes in coastal areas. Faced with this reality, small coastal lenders have begun selling more climate-sensitive mortgages to Fannie Mae and Freddie Mac, thereby transferring the risk of climate-induced default off the lenders’ books. Fannie Mae and Freddie Mac play a crucial role in supporting America’s mortgage finance system by purchasing qualifying private home loans, packaging them into investable security pools, and guaranteeing timely payment of principal and interest to outside investors. Through selling mortgages to Fannie Mae and Freddie Mac, lenders can use their …

The People's Ledger: How To Democratize Money And Finance The Economy, Saule T. Omarova

Vanderbilt Law Review

The COVID-19 crisis underscored the urgency of digitizing sovereign money and ensuring universal access to banking services. It pushed two related ideas—the issuance of central bank digital currency and the provision of retail deposit accounts by central banks-—to the forefront of the public policy debate. To date, however, the debate has not produced a coherent vision of how democratizing access to central bank money would—and should—transform and democratize the entire financial system. This lack of a systemic perspective obscures the enormity of the challenge and dilutes our ability to tackle it.

This Article takes up that challenge. It offers a …

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

Vanderbilt Law Review

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 …

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, …

Extending Trade Law Precedent, Jeffrey Kucik, Sergio Puig

Vanderbilt Journal of Transnational Law

Precedent is celebrated as a fundamental feature of dense legal systems as it creates predictability, builds coherence, and enhances the authority of courts and tribunals. But, in international adjudication, precedent can also affect interstate cooperation and ultimately the legitimacy of international organizations. Wary of clashing with state interests, most international dispute settlement systems are designed so that rulings do not set obligatory precedent.

This Article describes the role of precedent in the Appellate Body (AB) of the World Trade Organization (WTO) to explain how precedent can affect compliance with the decisions of international courts and tribunals (ICs). This Article makes …

Competing Claims: The Developing Role Of International Law And Unilateral Challenges To Maritime Claims In The South China Sea, Kevin Leddy

Vanderbilt Journal of Transnational Law

Chinese military and economic expansion have led to a commensurate decrease in the ability of neighboring countries to object to excessive maritime claims in the South China Sea. The existing framework of international law under the United Nations Convention on the Law of the Sea provides an anchoring point for coastal states' legal claims to the region, but it does not adequately address the complicated diplomacy challenges created by unilateral military action and unique geographical issues, such as artificial islands. Gradual acquiescence to maritime claims that do not comply with international law results from these conditions. Once these boundaries are …

Private Offerings In The Age Of Surveillance Capitalism And Targeted Advertising, Christina M. Claxton

Vanderbilt Law Review

Social media platforms, as well as the internet more broadly, have fundamentally altered many aspects of modern life. In particular, platforms’ targeted advertising mechanisms have revolutionized how companies reach consumers by providing advertisers more effective tools for reaching consumers and by tailoring content to consumers’ individual interests. Advertising, in many respects, has always been targeted—it has always sought to reach and influence a certain set of consumers. Today’s targeted advertising, however, allows advertisers to influence consumer behavior on an increasingly granular and intimate level, further skewing the power imbalance between advertisers and consumers. This new dynamic, together with changes to …

Democracy On A Shoestring, Joshua S. Sellers, Roger Michalski

Vanderbilt Law Review

Democracy requires money. Voters must be registered, voting rolls updated, election dates advertised, voting technology purchased and tested, poll workers trained, ballots designed, votes counted and verified, and on and on. Despite the importance of election expenditures, we have a shamefully inadequate amount of information about how much our elections cost. This Article, based on a novel and painstakingly hand-coded dataset, provides much needed information on election expenditures across multiple years from four states: California, Arizona, Texas, and Florida. These states, given their unique characteristics, provide a compelling sample set.

In what we believe to be a completely novel approach …

The Duty To Update Corporate Emissions Pledges, Nathan Campbell

Vanderbilt Law Review

Facing both internal and external market pressures, a rapidly growing number of private companies are making public, voluntary, and ambitious pledges to reduce or outright eliminate by a certain date or benchmark their greenhouse gas emissions. Yet, ambition and necessity notwithstanding, nonfulfillment of these emission reduction targets (“ERTs”) is a looming, if not an already realized, concern for markets, which are noticeably and increasingly attuned to the long-term value and climate performance of companies. In the absence of a comprehensive disclosure regime for climate performance and risk, this Note highlights the duty to update—a judicial doctrine that polices forward-looking statements, …

Police Arbitration, Stephen Rushin

Vanderbilt Law Review

Before punishing an officer for professional misconduct, police departments often provide the officer with an opportunity to file an appeal. In many police departments, this appeals process culminates in a hearing before an arbitrator. While numerous media reports have suggested that arbitrators regularly overturn or reduce discipline, little legal research has comprehensively examined the outcomes of police disciplinary appeals across the United States.

In order to better understand the use of arbitration in police disciplinary appeals and build on prior research, this Article draws on a dataset of 624 arbitration awards issued between 2006 and 2020 from a diverse range …

Jails, Sheriffs, And Carceral Policymaking, Aaron Littman

Vanderbilt Law Review

The machinery of mass incarceration in America is huge, intricate, and destructive. To understand it and to tame it, scholars and activists look for its levers of power—where are they, who holds them, and what motivates them? This much we know: legislators criminalize, police arrest, prosecutors charge, judges sentence, prison officials confine, and probation and parole officials manage release.

As this Article reveals, jailers, too, have their hands on the controls. The sheriffs who run jails—along with the county commissioners who fund them—have tremendous but unrecognized power over the size and shape of our criminal legal system, particularly in rural …

Why Supervise Banks? The Foundations Of The American Monetary Settlement, Lev Menand

Vanderbilt Law Review

Administrative agencies are generally designed to operate at arm’s length, making rules and adjudicating cases. But the banking agencies are different: they are designed to supervise. They work cooperatively with banks and their remedial powers are so extensive they rarely use them. Oversight proceeds through informal, confidential dialogue.

Today, supervision is under threat: banks oppose it, the banking agencies restrict it, and scholars misconstrue it. Recently, the critique has turned legal. Supervision’s skeptics draw on a uniform, flattened view of administrative law to argue that supervision is inconsistent with norms of due process and transparency. These arguments erode the intellectual …

The Shadows Of Litigation Finance, Suneal Bedi, William C. Marra

Vanderbilt Law Review

Litigation finance is quickly becoming a centerpiece of our legal system. Once a dispute arises, litigants may seek money from third-party financiers to pay their legal bills or monetize their claims, and in turn those financiers receive a portion of any case proceeds. Yet policymakers are struggling with how to evaluate and regulate litigation finance. There are two problems. The first is an awareness problem. Some commentators consider litigation finance “likely the most important development in civil justice of our time,” but others have hardly heard of it. As a result, many policymakers do not quite understand what litigation finance …

The Quick (Spending) And The Dead: The Agency Costs Of Forever Philanthropy, Brian Galle

Vanderbilt Law Review

American philanthropic institutions control upwards of a trillion dollars of wealth. Because contributions to these entities are deductible from both income and estate taxes, and the entities’ earnings are tax-free, that trillion dollars is heavily underwritten by contemporary taxpayers. Law offers little assurance that those who pay will be those who benefit. To the contrary, since these subsidies become more valuable the longer charitable assets are left unspent, the law strongly encourages philanthropies to save rather than spend, even in situations of great current need. Other legal rules further encourage grantmaking institutions to strive to exist “in perpetuity.”

This Essay …

Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset

Vanderbilt Law Review

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we have misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not …

The Loudest Voice At The Supreme Court: The Solicitor General’S Dominance Of Amicus Oral Argument, Darcy Covert, Annie J. Wang

Vanderbilt Law Review

The Solicitor General (“SG”) is often called the “Tenth Justice,” a title that captures his unique relationship with the Supreme Court and his independence from the executive branch. No phenomenon better reflects this relationship than the Court’s practice of permitting amici to participate in oral argument. Although amicus oral argument is nominally available to all litigants, the modern Court grants this privilege almost exclusively to the SG. Scholars and Court watchers have long argued that this practice is justified because the SG uses it to pursue the rule of law and an objective sense of “justice.”

This Article challenges that …

Make Hay While The Sun Shines: Private Equity And The False Claims Act, Gregory F. Maczko

Vanderbilt Law Review

For years, the federal government has used the False Claims Act to police fraud in the healthcare industry. Every year, the Department of Justice recovers billions of dollars from healthcare companies for their False Claims Act violations, both penalizing wrongdoers and providing incentives for whistleblowers to come forward. Over the past decade, however, private equity activity within the healthcare industry has increased significantly, presenting questions as to how the False Claims Act applies when a private equity firm’s portfolio company is accused of wrongdoing. This Note analyzes the ambiguity in how different courts have previously applied the False Claims Act …

Creditors, Keepers: Passive Retention Of Estate Property And The Automatic Stay, Caitlin M. Mcauliffe

Vanderbilt Law Review

The automatic stay provision is one of the most important provisions in the Bankruptcy Code. Until recently, however, it has remained unclear if passive retention of property of the bankruptcy estate must be immediately turned over to the debtor under the automatic stay provision. The Supreme Court decided in City of Chicago v. Fulton that passive retention does not violate the automatic stay, saving creditors from the consequences of retaining estate property. The debate about the stay, however, is far from over. Many circuit courts were already concerned about the policy issues deriving from the City of Chicago maintaining possession …

The Library Of Babel For Prior Art: Using Artificial Intelligence To Mass Produce Prior Art In Patent Law, Lucas R. Yordy

Vanderbilt Law Review

Artificial intelligence is playing an increasingly important role in the invention and innovation processes of our society. To date, though, much of the academic discussion on the interaction of artificial intelligence and the patent system focuses on the patentability of inventions produced by artificial intelligence. Little attention has been paid to organizations that are seeking to use artificial intelligence to defeat the patentability of otherwise patent-worthy inventions by mass producing prior art. This Note seeks to highlight the consequences of allowing mass-produced, AI-generated prior art to render valuable inventions unpatentable. Specifically, this Note concludes that AI-generated prior art decreases the …