Law Commons^™

Similar Secrets, Joseph P. Fishman, Deepa Varadarajan

Vanderbilt Law School Faculty Publications

A foundational question in every dispute over intellectual property is whether the defendant’s product is too similar to the plaintiff ’s. For almost all intellectual property regimes, an extensive body of case law and academic commentary has examined how such similarity should be measured. Trade secrecy, however, remains a remarkable exception. In trade secrecy cases, just as in other intellectual property cases, the defendant’s good or method can diverge markedly from what the plaintiff developed. Yet it turns out that trade secret case law provides little guidance for assessing how much similarity is too much. The standard remains, fittingly but …

Weathering The Storm: Utilizing Congressional Investigations To Improve National Hurricane Preparedness, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

During the 2017 hurricane season, three major storms impacted differ- ent regions of the United States. These storms-Hurricanes Harvey, Irma, and Maria-devastated communities in Texas, Florida, and Puerto Rico within the span of a month. These storms were so destructive that the World Meteorological Organization has retired all three storm names, meaning no future hurricane will ever bear the names Harvey, Irma, or Maria again. In response, according to the Government Accountability Office ("GAO"), "19 federal agencies had entered into contracts and obligated over $5.6 billion on those contracts to support efforts related to Hurricanes Harvey, Irma, and Maria" as …

States As Civil Rights Actors, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

A British politician, David Miliband, once said, "My advice is very simple: if you can win a small battle, it gives you confidence in the political process to take on bigger battles, and so it is very much a bottom-up grass-roots way of doing politics." While his perspective--of starting small and building up--is an often-used strategy used by advocates of all stripes, his quote does not give sufficient credence to the intrinsic value of these small battles. These efforts are an end unto themselves, as the smaller battles within each state are not just training to take on larger federal …

Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson

Vanderbilt Law School Faculty Publications

Our legal system - and much of the research conducted on that system - often separates people and issues into civil and criminal silos. However, those two worlds intersect and influence one another in important ways. The qualitative empirical study that forms the basis of this Article bridges the civil-criminal divide by exploring the life circumstances and events of public defender clients to determine how they experience and respond to civil legal problems.

To date, studies addressing civil legal needs more generally have not focused on those individuals enmeshed with the criminal justice system, even though that group offers a …

Private Governance Response To Climate Change: The Case Of Refrigerants, Michael P. Vandenbergh, Shannon Vreeland, Ted Atwood

Vanderbilt Law School Faculty Publications

Refrigerants are promising targets for private green- house gas (GHG) emissions reduction initiatives. Air conditioning units, fire extinguishers, aerosols, and solvents all contain chemical refrigerants that absorb and release heat. Refrigerants are used to chill food, buildings, and vehicles. Among commercial buildings, office space, health care, food service, and retail sales and service comprise well over 50 percent of all buildings in the United States and contribute a comparable amount of refrigerant emissions. Air Conditioning, Heating, & Refrigeration Insti- tute, AHRI Releases December 2017 U.S. Heating and Cooling Equipment Shipment Data 4 (2017). Certain refrigerants have been identified as ozone …

The Waiting Game: How States Can Solve The Organ-Donation Crisis, Meredith M. Havekost

Vanderbilt Law Review

Thousands of patients in the United States live in limbo every day waiting for a lifesaving organ transplant, and the gap between the number of people who need a transplant and the number of available organs widens every year. Every state currently allows individuals to unilaterally indicate their intent to donate their organs upon death, but in practice, family members are frequently allowed to override the express intentions of decedents. In addition, the current U.S. "opt-in" system fails to reach its full potential because many eligible decedents never express their desires to become or not to become organ donors, and …

Private Enforcement In Administrative Courts, Michael Sant'ambrogio

Vanderbilt Law Review

Scholars debating the relative merits of public and private enforcement have long trained their attention on the federal courts. For some, laws giving private litigants rights to vindicate important policies generate unaccountable private attorneys general" who interfere with public enforcement goals. For others, private lawsuits save cash-strapped government lawyers money, time, and resources by encouraging private parties to police misconduct on their own. Yet largely overlooked in the debate is enforcement inside agency adjudication, which often is depicted as just another form of public enforcement, only in a friendlier forum.

This Article challenges the prevailing conception of administrative enforcement. Based …

Cybersecurity And The Protection Of Digital Assets: Assessing The Role Of International Investment Law And Arbitration, Julien Chaisse, Cristen Bauer

Vanderbilt Journal of Entertainment & Technology Law

The digital era provides many opportunities, yet it also presents several unique challenges with regard to cybersecurity and the protection of digital assets. Cybercrime has changed the international legal landscape as nations, businesses, and legislators grapple with how to deal with this rapidly evolving, multifaceted problem. As there is no international mechanism for protection of foreign investors in this regard, some scholars are advocating for the use of Bilateral Investment Treaties (BITs) as part of a 'olycentric" approach to cyber peace. With an uptick in digital development and more development on the horizon, it will be important to establish what …

Computational Experimentation, Tabrez Y. Ebrahim

Vanderbilt Journal of Entertainment & Technology Law

Experimentation conjures images of laboratories and equipment in biotechnology, chemistry, materials science, and pharmaceuticals. Yet modern day experimentation is not limited to only chemical synthesis, but is increasingly computational. Researchers in the unpredictable arts can experiment upon the functions, properties, reactions, and structures of chemical compounds with highly accurate computational techniques. These computational capabilities challenge the enablement and utility patentability requirements. The patent statute requires that the inventor explain how to make and use the invention without undue experimentation and that the invention have at least substantial and specific utility. These patentability requirements do not align with computational research capabilities, …

Licensing Knowledge, Claudia E. Haupt

Vanderbilt Law Review

When professionals give advice, they disseminate professional knowledge to their clients. Professional advice is valuable to clients because they gain access to a body of knowledge they do not otherwise possess. To preserve the accuracy, and hence the value, of this knowledge transfer, the First Amendment should protect professional speech against state interference that seeks to alter the content of professional advice in a way that contradicts professional knowledge. But before professionals can give professional advice, they are routinely subject to licensing by the state. This seemingly creates a tension between state involvement in professional licensing and protection against state …

The Exclusionary Rule In The Age Of Blue Data, Andrew G. Ferguson

Vanderbilt Law Review

In Herring v. United States, Chief Justice John Roberts reframed the Supreme Court's understanding of the exclusionary rule: "As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." The open question remains: How can defendants demonstrate sufficient recurring or systemic negligence to warrant exclusion? The Supreme Court has never answered the question, although the absence of systemic or recurring problems has figured prominently in two recent exclusionary rule decisions. Without the ability to document recurring failures or patterns of police misconduct, courts can dismiss …

Repealing Patents, Christopher Beauchamp

Vanderbilt Law Review

The first known patent case in the United States courts did not enforce a patent. Instead, it sought to repeal one. The practice of cancelling granted patent rights has appeared in various forms over the past two-and-a-quarter centuries, from the earliest U.S. patent law in 1790 to the new regime of inter partes review and post-grant review. With the Supreme Court's recent scrutiny of the constitutionality of inter partes review, this history has taken on a new significance.

This Article uses new archival sources to uncover the history of patent cancellation during the first half-century of American patent law. These …

Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton

Vanderbilt Law School Faculty Publications

Body cameras are sweeping the nation and becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive police officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the police officer's perspective, these statements-for example, "he just threw something …

Taming Blockbuster Punitive Damages Awards, W. Kip Viscusi, Benjamin J. Mcmichael

Vanderbilt Law School Faculty Publications

Blockbuster punitive damages awards, i.e., those awards exceeding $100 million, attract attention based on their sheer size. While there have been fewer such awards in the last decade, they remain an important presence in the legal landscape. Taking notice of these and other large punitive damages awards, courts and state policymakers have taken steps to both constrain them and render them more predictable. States have enacted punitive damages caps to limit the amount of punitive damages courts can award, but these caps often contain a number of exceptions and apply only to damages under a specific state’s law. At a …

The Patent Option, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

There is a shift in the shape of intellectual property (IP) tools used to strengthen and lengthen the right of pharmaceutical companies to exclude others from making and marketing their products. Patents have traditionally been the tool of choice. Over the past two decades, however, pharmaceutical companies have increased their degree of reliance on a right known as “data exclusivity.” This right, which now exists in most major jurisdictions, is the right to prevent third parties from relying on the clinical trial data submitted by another pharmaceutical company to obtain marketing approval for a bioequivalent or biosimilar product. The right …

Immigration To Blue Cities In Red States: The Battleground Between Sanctuary And Exclusion, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This commentary interrogates the concept of immigration federalism, examining the political and ideological contours of state and local sanctuary laws in the context of both state and the Trump Administration's exclusionary policies. I utilize the intrastate federalism conflicts within the State of Tennessee to highlight the political dynamics that govern the passing of state and local sanctuary laws analyzing new issues that have surfaced under the Trump Administration. In this context, the commentary argues that recent immigration federalism standoffs center around political divisions which fail to engage in principled evaluations of which level of governmentfederal, state, or local--should be the …

Energy Exactions, Jim Rossi, Christopher Serkin

Vanderbilt Law School Faculty Publications

Exactions are demands levied on residential or commercial developers to force them, rather than a municipality, to bear the costs of new infrastructure. Local governments commonly use them to address the burdens that growth places on schools, transportation, water, and sewers. But exactions almost never address energy needs, even though local land use decisions can create signficant externalities for the power grid and for energy resources.

This Article proposes a novel reform to land use and energy law: "energy exactions"-understood as local fees or timing limits aimed at addressing the energy impacts of new residential or commercial development. Energy exactions …

Framing Of Geoengineering Affects Support For Climate Change Mitigation, Michael P. Vandenbergh, Kaitlin Raimi, Alexander Maki, David Dana

Vanderbilt Law School Faculty Publications

The growing recognition that climate change mitigation alone will be inadequate has led scientists and policymakers to discuss climate geoengineering. An experiment with a US sample found, contrary to previous research, that reading about geoengineering did not reduce conservatives’ skepticism about the existence of anthropogenic climate change. Moreover, depending on how it is framed, geoengineering can reduce support for mitigation among both conservatives and nonconservatives. When geoengineering is framed as a major solution, people worry less about climate change, leading to reduced mitigation support. When framed as disastrous, people perceived geoengineering as riskier, also leading to a decrease in mitigation …

Federal Regulation Of Third-Party Litigation Finance, Austin T. Popp

Vanderbilt Law Review

Third-party litigation finance has become a powerful and influential industry that will continue to play a significant role in shaping the legal landscape for years to come. The opportunities-and challenges-introduced by this burgeoning industry are legion, and with them has come a swath of disparate state regulations. These regimes have failed to balance important consumer- and commercial-lending protections with facilitation of the growth of an industry that is essential to increasing access to the courtroom.

In response, this Note contends that a federal agency, the Consumer Financial Protection Bureau, should be delegated the authority to promulgate regulations (1) capping interest …

Evaluating A Concussion Clause: Why The Nfl's Assumption Of Risk Defense Fares No Better As Time Goes On, Ramsey W. Fisher

Vanderbilt Journal of Entertainment & Technology Law

This Article explores the future of National Football League (NFL) concussion litigation. Currently, hundreds of retired NFL players who previously brought negligence claims against the NFL are seeking compensation under a settlement agreement reached in 2012. With many retired players exempting themselves from the 2012 agreement and current players learning more about the long-term risks of football, the potential for future negligence lawsuits against the NFL is still ripe. In any such suit, a key issue will be the NFLs'assumption of risk defense. The allure of the defense is intuitive-when one chooses to play professional football for a living, he …

Money As Infrastructure, Morgan Ricks

Vanderbilt Law School Faculty Publications

Traditional infrastructure regulation—the law of regulated industries—rests atop three pillars: rate regulation, entry restriction, and universal service. This mode of regulation has typically been applied to providers of network-type resources: resources that are optimally supplied as integrated systems. The monetary system is such a resource; and money creation is the distinctive function of banks. Bank regulation can therefore be understood as a subfield of infrastructure regulation. With few exceptions, modern academic treatments of banking have emphasized banks’ intermediation function and downplayed or ignored their monetary function. Concomitantly, in recent decades U.S. bank regulation has strayed from its infrastructural roots. This …

"Sorry" Is Never Enough: How State Apology Laws Fail To Reduce Medical Malpractice Liability Risk, W. Kip Viscusi, Benjamin J. Mcmichael, R. Lawrence Van Horn

Vanderbilt Law School Faculty Publications

Based on case studies indicating that apologies from physicians to patients can promote healing, understanding, and dispute resolution, 38 states have sought to reduce litigation and medical malpractice liability by enacting apology laws. Apology laws facilitate apologies by making them inadmissible in subsequent malpractice trials.

The underlying assumption regarding the potential efficacy of these laws is that, after receiving an apology, patients will be less likely to pursue a malpractice claim and will be more likely to settle those claims that are filed. However, once a patient has been made aware that the physician has committed a medical error, the …

Online Appendix To Irrational Ignorance At The Patent Office, Michael D. Frakes, Melissa F. Wasserman

Vanderbilt Law Review

In this Section of the Appendix, we discuss a bounded analysis of the personnel costs to the Patent Office (“the Agency”) that result from doubling patent examiner time allocations. In particular, we adopt different multipliers to account for the full cost of a patent examiner to the Patent Office in excess of their base salary. As discussed in Section II.A, we assume a 2.04 factor of an employee’s base salary to account for fringe benefits, employer taxes and insurance, and allotments for office space, rent, equipment, replacement/turnover cost, managerial support, etc. Below, we repeat the calculation in Table 2 of …

Thou Shalt Not Steele: Reexamining The Extraterritorial Reach Of The Lanham Act, James C. Gracey

Vanderbilt Journal of Entertainment & Technology Law

US courts have applied domestic trademark law to actions taken outside of the United States's borders for years, but the US Supreme Court recently revamped the presumption against extraterritoriality, a canon of statutory interpretation. The presumption against extraterritoriality promotes a judicial means of respecting the sovereignty of foreign states by disallowing the application of domestic law to foreign acts. However, the Supreme Court interpreted the Lanham Act, the United States's domestic trademark law, to have extraterritorial reach in Bulova Watch Co. v. Steele. This Note traces the recent evolution and strengthening of the presumption before analyzing how circuit courts have …

What To Do About Chevron - Nothing, Nicholas R. Bednar

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Supreme Court Explores Application Of Mfw's Ab Initio Requirement In Controlling Stockholder-Related Litigation, Robert S. Reder

Vanderbilt Law Review En Banc

No abstract provided.

Chancery Court Holds That Defendant Directors' Failure To Disclose Material Facts Defected Application Of Corwin, But Nevertheless Dismisses Claims Against Directors Due To Plaintiff's Failure To Adequately Plead Directorial Breach Of Their Duty Of Loyalty, Robert S. Reder, Elizabeth F. Shore

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Supreme Court Bars Buyer From Using Narrowly-Cabined Working Capital Adjustment To Attack Seller's Alleged Non-Compliance With Gaap, Robert S. Reder, William Pugh

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Supreme Court Once Again Reverses Dismissal Of Fiduciary Breach Claims Brought Against Target Company Directors, Robert S. Reder

Vanderbilt Law Review En Banc

No abstract provided.

Chancery Court Determines That 22.1 Stockholder Controls Corporation, Rendering Corwin Inapplicable, Robert S. Reder

Vanderbilt Law Review En Banc

No abstract provided.