Law Commons^™

The National Security Consequences Of The Major Questions Doctrine, Ganesh Sitaraman, Timothy Meyer

Vanderbilt Law School Faculty Publications

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare …

Trump V. Tiktok, Anupam Chander

Vanderbilt Journal of Transnational Law

How did a Chinese big tech company beat the president of the United States? When then-President Donald Trump sought to ban TikTok, ostensibly because of its Chinese roots, US courts came to TikTok's rescue. Rather than deferring to the president's claims of a national security emergency justifying the ban, courts held that the president lacked statutory authority to ban TikTok. This Article chronicles the Trump administration's attempt to either ban TikTok or to compel its sale to a "very American" company, preferably one led by a political ally. The TikTok affair thus demonstrates what Harold Koh calls the National Security …

The Pivotal Role Of International Human Rights Law In Defeating Cybercrime: Amid A (Un-Backed) Global Treaty On Cybercrime, Professor Fatemah Albader

Vanderbilt Journal of Transnational Law

On May 26, 2021, the General Assembly of the United Nations adopted a resolution approving the drafting of a new global treaty on cybercrime, which commenced in February 2022. The proposed UN agreement on cybercrime regulation has garnered significant criticism among the international community, namely by state delegates, human rights advocates, and nongovernmental organizations. Fears stem from the belief that such a treaty would be used to legitimize abusive practices and undermine fundamental human rights. National cybercrime laws already unduly restrict human rights. However, at a time where the global community has moved toward a digital world, it becomes even …

Data Transfers After Schrems Ii: The Eu-Us Disagreements Over Data Privacy And National Security, Monika Zalnieriute

Vanderbilt Journal of Transnational Law

In the long-awaited Schrems II decision, the Court of Justice of the European Union (CJEU) took a radical, although not an unexpected, step in invalidating the Privacy Shield Agreement, which facilitated data transfers between the European Union and the United States. Schrems II illuminates long-lasting international disagreements between the EU and the United States over data protection, national security, and the fundamental differences between the public and private approaches to the protection of human rights in the data-driven economy and modern state. This Article approaches the decision via an interdisciplinary lens of international law and international relations and situates it …

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 …

Fortifying American Emergency Power: A Multinational Comparison To Contain Crises, Courtney Devore

Vanderbilt Journal of Transnational Law

Countries will inevitably face emergencies. Historically, governments have exercised immense power in response to emergencies. For responses to be quick and effective, emergency power operates outside of the normal rule of law. While disbanding the normal rule of law may be necessary from time to time to protect national security, the unilateral ability of government to take such action creates perverse incentives to abuse the power. Abuses of emergency power are found across the globe, most notably occurring in the United States recently.

In the wake of the Trump Administration, this Note seeks to identify how and why the US …

International Investment And National Security Review, Ji Ma

Vanderbilt Journal of Transnational Law

National security is a pillar of international law. As long as sovereign states exert power within the international legal regime, national security will be an exception to international law. These security concerns also come to light in the international investment legal regime. The international investment legal regime provides for essential security exceptions, aiming at protecting host states' interests. This practice has been honored by international investment treaties and international investment tribunals. Although such exemption provisions can balance the interests between international investors and host states, they might be abused by host states in virtue of rising protectionism.

Today, with respect …

Combatant Status Review Tribunals And The Unique Nature Of The War On Terror, Robert A. Peal

Vanderbilt Law Review

On September 11, 2001, terrorists attacked the United States, killing 2,973 innocent civilians. This was the largest loss of life on U.S. soil due to a hostile act in the nation's history. Al Qaeda, an international terrorist organization, claimed responsibility for the act. Al Qaeda had been systematically targeting U.S. civilians and service members for at least the previous nine years. In response to the attacks, the United States conducted a series of military and legal actions that were highly controversial and unprecedented. As part of these actions, the executive branch claimed the authority to detain indefinitely individuals it labeled …

Special Project+ National Security, Elizabeth A. Cheney

Vanderbilt Law Review

National security has become a hotly debated issue since September 11, 2001. National security has always been of great concern to the government; however former Defense Secretary McNamara's thoughts indicate that national security has now also become an important topic for all individuals to consider.2 The "policy and process" of U.S. national security has evolved significantly throughout this country's history, particularly in the years since September 11.

Foreign Relations And National Security Law, Stuart S. Malawer

Vanderbilt Journal of Transnational Law

"Foreign relations law" as it relates to foreign policy and national security is an area of specialization that has recently witnessed publication of two significant works. A third major publication has already appeared in final draft and is about to be printed. These publications evidence the growth of foreign relations law and validate it as a separate field of study. This distinct area of the law draws subjects from other areas, which are all too often given minimal attention, into a coherent course with a specific focus.

Foreign relations law should be the introductory course in international studies in law …

Review Essay: The Future Of National Security Export Controls, Donald H. Caldwell, Jr.

Vanderbilt Journal of Transnational Law

In calling for more narrowly focused controls, this study echoes the Bucy Report of 1976, one that called for restrictions on revolutionary rather than evolutionary technology.56 Yet more than a decade after that report was issued, United States export control lists are still weighted toward restricting all exports containing useful technology whether or not the export of an item would advance the capabilities of American adversaries to any degree.17 Unless industry leaders seize the opportunity to reduce the scope of national security export controls as Congress prepares to reauthorize the Export Administration Act, this report, like the Bucy Report before …

The Constitutionality Of The Foreign Intelligence Surveillance Act Of 1978, Judith B. Anderson

Vanderbilt Journal of Transnational Law

Within its more limited scope, the Belfield decision provides a helpful approach to FISA cases by articulating both a solid rationale for FISA's in camera, ex parte provision and a workable balancing approach for determining whether open proceedings may be necessary. The Falvey decision, although broader in scope, does not provide a satisfactory rationale for FISA's deviation from the traditional fourth amendment warrant requirement, nor does it articulate a workable approach to evaluating a FISA-warranted surveillance. The Falvey court, by predicating its upholding of FISA on an acceptance of the national security exception, may perpetuate a debate that the statute …

Espionage In Transnational Law, Leslie S. Edmondson

Vanderbilt Journal of Transnational Law

Traditionally, spies have been defined as "secret agents of a State sent abroad for the purpose of obtaining clandestinely information in regard to military or political secrets." Older authorities have stated emphatically that the gravamen of espionage is the employment of disguise or false pretense. Such deception has been the justification for visiting the severest of penalties upon the captured spy. Curiously, however, the employment of spies has not been considered reprehensible conduct. The refusal to officially acknowledge the commissioning of a spy operated to relieve the government of any responsibility either to the offended state or to the secret …