Law Commons^™

The Right Of Attribution In Literary Works In Three Acts, By W. Shakespeare, Daniel J. Gervais

Vanderbilt Journal of Entertainment & Technology Law

This Article charts the three phases in the evolution of the norm of attribution in literary works: the norm in England before and during Shakespeare's time, the emergence of authorship-based norms in the Romantic period (allowing moral rights to be enshrined in international copyright treaties) and their demise at the hands of postmodernism and New Criticism, and the current norms that aim to protect the integrity of educational processes and to inform readers and other users of books, plays, or other creative works about their "source." It tracks a debate during Shakespeare's lifetime on the difference between nonattribution and false …

Building Bridges: International Trade Law, Internet Governance, And The Regulation Of Data Flows, Neha Mishra

Vanderbilt Journal of Transnational Law

The regulation of internet data flows touches upon various distinct disciplines including internet governance and international trade law. In internet governance, three fundamental principles, namely, internet openness, internet security, and internet privacy apply to regulation of internet data flows. This Article argues that internet privacy and security, when implemented in a reasoned and transparent manner by different stakeholders, enable internet openness--thus, challenging the dominant perspective that cybersecurity and privacy requirements constrain the free flow of data. Further, this Article introduces a unique perspective by arguing that these three principles (notwithstanding their nonbinding nature) play an important role in applying trade …

Addressing The Value Gap In The Age Of Digital Music Streaming, Daniel L. Lawrence

Vanderbilt Journal of Transnational Law

This Note analyzes a global music industry problem known as the value gap. The value gap represents the disparity between the value that music-streaming platforms extract from musical content and the revenue generated by those who create and invest in the creation of such content. The international rise in digital music streaming has contributed greatly to the expansion of the value gap. This is largely because outdated laws like the Digital Millennium Copyright Act in the United States and other similar statutes around the globe contain safe harbor provisions that shield certain music-streaming services from copyright-infringement liability. Safe harbor protection …

Penile Polygraphy: The Admissibility Of Penile-Plethysmograph Results At Sentencing In Tennessee, Steven Poland

Vanderbilt Law Review

State judges in Tennessee currently consider the results of penile plethysmograph ("PPG") evaluations when sentencing convicted sex offenders. These highly intrusive physical tests purport to identify whether an offender's arousal is considered "deviant" by measuring the change in penis size after viewing various stimuli. Because the results are usually buried in psychosexual evaluations that are part of general presentence assessments of recidivism risk, PPG evaluations suffer from a lack of standardization and little attention under the rules of evidence. Interestingly, PPG testing is similar to polygraphy in a number of ways, although studies have shown that PPG results are more …

Fintech And The Innovation Trilemma, Yesha Yadav, Chris Brummer

Vanderbilt Law School Faculty Publications

Whether in response to roboadvising, artificial intelligence, or crypto-currencies like Bitcoin, regulators around the world have made it a top policy priority to supervise the exponential growth of financial technology (or "fintech") in the post-Crisis era. However, applying traditional regulatory strategies to new technological ecosystems has proven conceptually difficult. Part of the challenge lies in the tradeoffs involved in regulating innovations that could conceivably both help and hurt consumers and market participants alike. Problems also arise from the common assumption that today's fintech is a mere continuation of the story of innovation that has shaped finance for centuries.

This Article …

Countering Nationalist Oligarchy, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

The challenge we face today is not one of authoritarianism, as so many seem inclined to believe, but of nationalist oligarchy. This form of government feeds populism to the people, delivers special privileges to the rich and well-connected, and rigs politics to sustain its regime.

Nationalist oligarchy is an existential threat to American democracy. The countries already under its thrall steal technology and use economic power as political leverage. Some of them are actively trying to undermine democracy, through cyber attacks, hacking, and social media disinformation. And they spread bribery and corruption around the world—deepening inequality and threatening to turn …

The Risks Of Supreme Court Term Limits, Suzanna Sherry, Christopher Sundby

Vanderbilt Law School Faculty Publications

Should we impose term limits on Supreme Court justices? Many people, of varying political views, have suggested that we should. They argue that requiring justices to step down after a fixed term – the most common suggestion is 18 years – would give all presidents an equal opportunity to nominate justices, depoliticize the confirmation process and ensure that the Supreme Court is never too far out of step with the views of the American public.

Whether adopting term limits would accomplish all of these goals is, of course, disputed. But is there any reason not to try it? In “Term …

The Law And Politics Of Socially Inclusive Trade, Timothy Meyer

Vanderbilt Law School Faculty Publications

American ambivalence toward international institutions is nothing new. In his farewell address, George Washington famously warned against foreign entanglements. After World War I, the U.S. Senate rejected the Treaty of Versailles, leaving the United States outside the formal post-war order it helped establish and neutering the new League of Nations. Throughout the late twentieth century, the United States refused to ratify multilateral agreements ranging from the Vienna Convention on the Law of Treaties, to the UN Convention on the Law of the Sea, to a host of human rights agreements. Nor did the dawn of the twenty-first century change the …

Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Investor-state dispute-settlement (ISDS) clauses give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitration tribunal. This jurisgenerative right to file a claim in an international tribunal with mandatory jurisdiction is generally reserved to States. ISDS is a mechanism meant to protect the private property of multinational investors against certain acts of public authorities.

Intellectual Property differs from the more traditional private (property) law interests that ISDS aims to protect. IP incorporates public policy objectives such as innovation, access to information or public health that are reflected in limitations and exceptions to the …

The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …

They, Them, And Theirs, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Nonbinary gender identities have quickly gone from obscurity to prominence in American public life, with growing acceptance of gender-neutral pronouns, such as “they, them, and theirs,” and recognition of a third gender category by U.S. states including California, Oregon, New Jersey, Minnesota, and Washington. People with nonbinary gender identities do not exclusively identify as men or women. Feminist legal reformers have long argued that discrimination on the basis of gender nonconformity — in other words, discrimination against men perceived as feminine or women perceived as masculine — is a harmful type of sex discrimination that the law should redress. But …

Engaging Policy In Science Writing: Patterns And Strategies, J. B. Ruhl, Stephen M. Posner, Taylor H. Ricketts

Vanderbilt Law School Faculty Publications

Many scientific researchers aspire to engage policy in their writing, but translating scientific research and findings into policy discussion often requires an understanding of the institutional complexities of legal and policy processes and actors. To examine how researchers have undertaken that challenge, we developed a set of metrics and applied them to articles published in one of the principal academic publication venues for science and policy—Science magazine’s Policy Forum. We reviewed each Policy Forum article published over a five-year period (2011–15), 220 in all. For each article, we assessed the level of policy content based on presence of a stated …

Immigration And Blackness, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

There is a long history of the intersection of immigration, race, and civil rights in America. Immigration laws have operated in a manner to maintain homogeneity to the exclusion of immigrants of color. Immigration laws throughout America’s history have traditionally utilized fear and exclusion to define what America should look like and have privileged some immigrant’s over others.

The Gendered Burdens Of Conviction And Collateral Consequences On Employment, Joni Hersch, Erin E. Meyers

Vanderbilt Law School Faculty Publications

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living. This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men. This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record. In addition, women have access to far fewer vocational programs while incarcerated. Further exacerbating this burden is that …

Improper Appropriation, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The traditional (Arnstein) test for copyright infringement is satisfied when the owner of a valid copyright establishes unauthorized copying by the defendant. To demonstrate unauthorized copying, one of the major tests is that the plaintiff must first show that her work was actually copied; second, she must establish substantial similarity and/or that the copying amounts to an improper or unlawful appropriation. The second prong is satisfied when (i) protected expression in the earlier work was copied and (ii) the amount of the copyrighted work that is copied must be more than de minimis. This Article examines, first, how impropriety has …

How The First Forty Years Of Circuit Precedent Got Title Vii's Sex Discrimination Provision Wrong, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title …

The Due Process And Other Constitutional Rights Of Foreign Nations, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The rights of foreign states under the U.S. Constitution are becoming more important as the actions of foreign states and foreign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states.

Careful analysis shows that the conventional …

Policing, Databases, And Surveilance: Five Regulatory Categories, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Databases are full of personal information that law enforcement might find useful. Government access to these databases can be divided into five categories: suspect-driven; profile-driven; event-driven; program-driven and volunteer-driven. This chapter recommends that, in addition to any restrictions imposed by the Fourth Amendment (which currently are minimal), each type of access should be subject to its own regulatory regime. Suspect-driven access should depend on justification proportionate to the intrusion. Profile-driven access should likewise abide by a proportionality principle but should also be subject to transparency, vetting, and universality restrictions. Event-driven access should be cabined by the time and place of …

Term Limits And Turmoil: Roe V. Wade's Whiplash, Suzanna Sherry, Christopher Sundby

Vanderbilt Law School Faculty Publications

A fixed eighteen-year term for Supreme Court Justices has become a popular proposal with both academics and the general public as a possible solution to the countermajoritarian difficulty and as a means for depoliticizing the confirmation process. While scholars have extensively examined the potential benefits of term limits, the potential costs have been underexplored. We focus on one cost: the possible effects of term limits on doctrinal stability. Using seven statistical models that measure potential fluctuation in Supreme Court support for Roe v. Wade had the Court been operating under term limits since 1973, we explore the level of constitutional …

Externships As A Vehicle For Teaching Access To Justice, Spring Miller

Vanderbilt Law School Faculty Publications

As a relatively new externship instructor, I spend a lot of time thinking about externships – what they mean for our students, what they add to the clinical curriculum and law school curriculum more broadly, and how best to conceptualize and make the most of these courses that constitute one of the most prevalent forms of experiential legal education.

Thanks to the work of experienced externship instructors and scholars, there are now a number of resources and articles exploring externships’ promise in promoting student learning with regard to lawyering skills and professional development. I have relied on many of these …

Introducing An Interdisciplinary Frontier To Judging, Emotion And Emotion Work, Terry A. Maroney, Stina B. Blix, Kathy Mack, Sharyn R. Anleu

Vanderbilt Law School Faculty Publications

This special issue of Oñati Socio-Legal Series, titled Judging, Emotion and Emotion Work, is the result of presentations and discussions during an interdisciplinary workshop at the International Institute for the Sociology of Law (IISL) held in May 2018. This issue builds on the growing critique of the dispassionate ideal of judicial work, combining original theoretical insights with imaginative empirical analyses to extend the understanding of emotion in judging. Fifteen articles are presented in four themes: Theoretical, cultural and historical perspectives; Tensions of the dispassionate ideal; Social dynamics of emotion in judging; and Research methods, empirical insights and [changing] judicial practice. …

Empirically Investigating Judicial Emotion, Terry A. Maroney

Vanderbilt Law School Faculty Publications

The empirical study of judicial emotion has enormous but largely untapped potential to illuminate a previously underexplored aspect of judging, its processes, outputs, and impacts. After defining judicial emotion, this article proposes a theoretical taxonomy of approaches to its empirical exploration. It then presents and analyses extant examples of such research, with a focus on how the questions they ask fit within the taxonomy and the methods they use to answer those questions. It concludes by identifying areas for growth in the disciplined, data-based exploration of the many facets of judicial emotion.

Efficient Deterrence Of Workplace Sexual Harassment, Joni Hersch

Vanderbilt Law School Faculty Publications

Although sexual harassment imposes costs on both victims and organizations, it is also costly for organizations to reduce sexual harassment. Legislation, education, training, and litigation have all been unsuccessful in eradicating workplace sexual harassment. My proposal is to establish financial incentives of sufficient magnitude to incentivize organizations to eliminate sexual harassment. The key challenge is in monetizing the harm caused by sexual harassment. I propose a new approach that draws on my research, which calculated the risk of sexual harassment by gender, industry, and age based on charges filed with the Equal Employment Opportunity Commission. Using these risk measures, I …

Still In Exile? The Current Status Of The Contract Clause, James W. Ely

Vanderbilt Law School Faculty Publications

The Contract Clause is no longer the subject of much judicial solicitude or academic interest.' Since the 1930s the once potent Contract Clause has been largely relegated to the outer reaches of constitutional law.2 This, of course, was not always the case. On the contrary, throughout the nineteenth century the Contract Clause was one of the most litigated provisions of the Constitution. In 1896, Justice George Shiras astutely commented: "No provision of the constitution of the United States has received more frequent consideration by this court than that which provides that no state shall pass any law impairing the obligation …

The Rules Of #Metoo, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do—such as purchasing a car seat, finding a pediatrician, or choosing a daycare—as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have …

Proposed Reforms To Texas Judicial Selection: Panelist Remarks, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

I am going to set the stage by providing a little background about the various methods that States around the country use to select their judges. I am also going to remind us of many of the considerations that we like to think about when we are deciding which of these methods is best. And I am going to push upon you a new consideration that is sometimes not thought about in these discussions as well as share some data regarding this last consideration. But let’s start with some background about the selection methods.

There are basically four different ways …

Boilerplate And The Impact Of Disclosure In Securities Dealmaking, Jeremy Mcclane

Vanderbilt Law Review

Capital markets dealmaking, like many kinds of business transactions, is built on a foundation of copied and recycled language what many call boilerplate. Regulators and the bar periodically call for less reliance on boilerplate, but despite these pressures, boilerplate remains a fixture of ever-growing securities disclosures. This Article explores why boilerplate persists and how it affects investors, showing that boilerplate may have a more complex role than commonly recognized. This Article does so by developing a theory on the effect of boilerplate in securities disclosure-a context that is little studied despite a wealth of literature on boilerplate in other settings--and …

The States Have Spoken: Allow Expanded Media Coverage Of The Federal Courts, Mitchell T. Galloway

Vanderbilt Journal of Entertainment & Technology Law

Since the advent of film and video recording, society has enjoyed the ability to capture the lights and sounds of moments in history. This innovation left courts to determine what place, if any, such technology should have inside the courtroom. Refusing to constrain the future capacity of this technology, the Supreme Court "punted" on this issue until a time when this technology evolved past its initial disruptive nature. Throughout the past forty-five years, the vast majority of state courts have embraced the potential of cameras in the courtroom and have created policies governing such use. In contrast, the federal judiciary …

Confidences Worth Keeping: Rebalancing Legitimate Interests In Litigants' Private Information In An Era Of Open-Access Courts, Jeffrey W. Sheehan

Vanderbilt Journal of Entertainment & Technology Law

The ideal of the public trial in open court continues to guide decisions about public access to courts and their records, even as cases are increasingly decided "on the papers." This is still the case when those "papers" take the form of electronic documents that can be uploaded, downloaded, copied, and distributed by anyone with an internet connection. A series of opinions from the US Court of Appeals for the Sixth Circuit reinforcing this ideal of public access to court records and unsealing district court filings offers an opening to reconsider core values that must inform our treatment of private …

Neuroscience, Artificial Intelligence, And The Case Against Solitary Confinement, Francis X. Shen

Vanderbilt Journal of Entertainment & Technology Law

Prolonged solitary confinement remains in widespread use in the United States despite many legal challenges. A difficulty when making the legal case against solitary confinement is proffering sufficiently systematic and precise evidence of the detrimental effects of the practice on inmates' mental health. Given this need for further evidence, this Article explores how neuroscience and artificial intelligence (AI) might provide new evidence of the effects of solitary confinement on the human brain.

This Article argues that both neuroscience and AI are promising in their potential ability to present courts with new types of evidence on the effects of solitary confinement …