Law Commons^™

Humanitarian Regulation Of Hostiles: The Decisive Element Of Context, Geoffrey S. Corn

Vanderbilt Journal of Transnational Law

Today, isolated force-on-force battles are considered a relic of the past. Instead, armed forces must expect to conduct combined arms maneuver operations in and around civilians and civilian population centers. And this expectation is only increased when anticipating operations against enemies who see embedding their vital assets in densely populated areas as a force multiplier. This perception is based on not only the inherent tactical advantages of embedding assets among civilian population centers (such as ready access to logistics and lines of communication), but also their recognition that the complexity of conducting operations against these assets in a legally compliant …

Constructing A "Creative Reading": Will Us State Cannabis Legislation Threaten The Fate Of The International Drug Control Treaties?, Michael Tackeff

Vanderbilt Journal of Transnational Law

While marijuana remains illegal at the federal level in the United States, state-level efforts to legalize cannabis have gained enormous momentum in recent years. The federal government, which possesses only limited power to stop this trend, has responded by grudgingly allowing such efforts to proceed, maintaining that its inaction on the issue comports with the international drug control regime. This presents a particularly complex problem for international policymakers and legal scholars, who worry that this state-federal conflict may render international drug treaties meaningless. This Note argues that the federal government's strategy is a productive lens through which to view an …

The Gap-Filling Role Of Private Environmental Governance: A Case Study Of Semiconductor Supply Chain Contracting, Cassie D. Roberts

Vanderbilt Journal of Transnational Law

Three of the principal international agreements that govern various aspects of hazardous substances or wastes are not legally binding on American companies because the US Congress has not passed the requisite implementing legislation. The failure of American companies to meet or exceed the standards set forth in these agreements, although not legally mandated, could be detrimental to American businesses operating on the global stage. The American semiconductor industry responded to this potential disconnect by developing internal firm-specific standards that bind suppliers through supply chain agreements. This Note explores the phenomenon of private standard setting in the semiconductor industry, a prime …

Introduction To Keynote Address: A Tribute To Yoram Dinstein, Colonel Dr. Eran Shamir-Borer

Vanderbilt Journal of Transnational Law

If one puts in “Control F” and “Search “Dinstein” in the IDF International Law Department’s database of legal opinions, the word will appear almost as often as the word “law.” And when we hear that word “Dinstein” we think firstly not of the person, but of the fundamental texts which guide many of us in our work.

As Such, Professor Yoram Dinstein has joined that small group of people for whom the mention of their names has connotations of a concept or a school more than the person themselves.

Feminism And The Tournament, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Naomi Bishop, the protagonist of the 2016 film "Equity," is the rare "she-wolf of Wall Street."' At the beginning of the film, Bishop appears on a panel at an alumni event. She explains her career choices to the young women in the audience as follows: I like money. I do. I like numbers. I like negotiating. I love a challenge. Turning a no into a yes. But I really do like money. I like knowing that I have it. I grew up in a house where there was never enough. I was raised by a single mom with four kids. …

Constrained Regulatory Exit In Energy Law, Jim Rossi

Vanderbilt Law School Faculty Publications

In recent years, the federal government’s efforts to open up competitive electricity markets have transformed how we think about the regulation of energy. In many respects, the Federal Energy Regulatory Commission’s (FERC) broad “deregulatory” efforts, which commenced in the 1990s, might appear to be a case of paradigmatic regulatory exit as defined by J.B. Ruhl and Jim Salzman. But our case study of FERC’s restructuring of wholesale electricity markets reveals some important institutional features that make exit in federalism contexts, and under federal statutory duties, a rich and difficult problem. In the context of energy, exit from one regulatory sphere …

International Human Rights Law: An Unexpected Threat To Peace, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

It is a great honor to deliver this lecture in honor of the late Dean Robert F. Boden. I am grateful to all of you for attending. My topic tonight is international law and peace among nations. It may seem a poor fit for a lecture honoring Dean Boden. I did not know him, but I have read that Dean Boden was passionately dedicated to teaching law students about the actual day-to-day practice of law. He believed that law schools should be focused on that sort of professional training—not on policy questions or preparing students to be “architects of society,” …

Insurance Coverage Policies For Pharmacogenomic And Multi-Gene Testing For Cancer, Ellen Wright Clayton, Christine Y. Lu, Stephanie Loomer, Et Al.

Vanderbilt Law School Faculty Publications

Abstract: Insurance coverage policies are a major determinant of patient access to genomic tests. The objective of this study was to examine differences in coverage policies for guideline-recommended pharmacogenomic tests that inform cancer treatment. We analyzed coverage policies from eight Medicare contractors and 10 private payers for 23 biomarkers (e.g., HER2 and EGFR) and multi-gene tests. We extracted policy coverage and criteria, prior authorization requirements, and an evidence basis for coverage. We reviewed professional society guidelines and their recommendations for use of pharmacogenomic tests. Coverage for KRAS, EGFR, and BRAF tests were common across Medicare contractors and private payers, but …

Navigating The Research-Clinical Interface In Genomic Medicine: Analysis From The Cser Consortium, Ellen Wright Clayton, Susan M. Wolf, Laura M. Amendola, Et Al.

Vanderbilt Law School Faculty Publications

Purpose: The Clinical Sequencing Exploratory Research (CSER) Consortium encompasses nine National Institutes of Health– funded U-award projects investigating translation of genomic sequencing into clinical care. Previous literature has distinguished norms and rules governing research versus clinical care. This is the first study to explore how genomics investigators describe and navigate the research–clinical interface. Methods: A CSER working group developed a 22-item survey. All nine U-award projects participated. Descriptive data were tabulated and qualitative analysis of text responses identified themes and characterizations of the research–clinical interface. Results: Survey responses described how studies approached the research–clinical interface, including in consent practices, recording …

Forensics, Chicken Soup, And Meteorites: A Tribute To Michael Risinger, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Michael Risinger's scholarship has had a profound impact on our field. And while his work has run the gamut in evidence law, I think it is clear that Michael's true love has always been expert evidence, and more specifically, forensics. So let me take a moment to revisit "an oldie but a goodie": his 1989 article entitled Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification "Expertise," published in the University of Pennsylvania Law Review, and co-authored with Mark Denbeaux and Michael Saks.' For those of you who have not read the article, you should. …

Buchanan And The Right To Acquire Property, James W. Ely Jr.

Vanderbilt Law School Faculty Publications

This article examines the impact of the Supreme Court decision in Buchanan v. Warley (1917) invalidating residential segregation laws as a deprivation of property rights without due process of law. The decision was premised on a strong affirmation of the right to acquire property. The article explores the historical background and contemporary significance of the right to acquire property. It notes that early state constitutions expressly recognized such a right. It points out that the right to acquire found practical expression in hostility to state-conferred monopoly and in the right to follow common occupations, two doctrines which evolved under the …

Is Groton The Next "Evenwel"?, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In Evenwel v Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of ``one person- one vote'' (OPOV). It was thought that there was little prospect of resolving this question soon as no appropriate instances of such behavior was known. That belief was mistaken. In this note I report on the Town of Groton, Connecticut which uses registered voting data to apportion seats in its Representative Town Meeting, and has done so since its incorporation in 1957. …

The Future Of The Federal Common Law Of Foreign Relations, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficulties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reliance upon presidential or congressional action, or by standard constitutional …

Keynote: Motivating Private Climate Governance: The Role Of The Efficiency Gap, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

In response to the shrinking federal role in environmental protection, many policy advocates have focused on the role of states and cities, but this symposium focuses on another important source of sustainability initiatives: the private sector, including corporations, households, civic and cultural organizations, religious organizations, private hospitals, colleges and universities, and other organizations. States, cities, and local governments are increasingly important, but the limited geographic reach of subnational governments and widespread concerns about the size and intrusiveness of the public sector constrain their ability to address many environmental problems. Private governance initiatives offer an opportunity to bypass concerns about big …

Is It Time For A Universal Genetic Forensic Database?, J. W. Hazel, Ellen Wright Clayton, B. A. Malin, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The ethical objections to mandating forensic profiling of newborns and/or compelling every citizen or visitor to submit to a buccal swab or to spit in a cup when they have done nothing wrong are not trivial. But newborns are already subject to compulsory medical screening, and people coming from foreign countries to the United States already submit to fingerprinting. It is also worth noting that concerns about coercion or invasions of privacy did not give pause to legislatures (or, for that matter, even the European Court) when authorizing compelled DNA sampling from arrestees, who should not forfeit genetic privacy interests …

Democracy And Dysfunction: Rural Electric Cooperatives And The Surprising Persistence Of The Separation Of Ownership And Control, Randall S. Thomas, Debra C. Jeter, Harwell Wells

Vanderbilt Law School Faculty Publications

Since the 1930s, corporate law scholarship has focused narrowly on the public corporation and the problem of the separation of ownership and control-a problem many now believe has been mitigated or even solved. With rare exceptions, scholars have paid far less heed to other business forms that still play important roles in the American economy. In this Article, we examine a significant and almost completely overlooked business form, the Rural Electric Cooperative (REC). RECs were founded in a moment of optimism during the New Deal. As with other cooperatives, their organizational rules differed sharply from those of for-profit corporations. They …

A Blueprint For A New American Trade Policy, Timothy Meyer, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In recent years, it has become clear that American trade policy needs to change. For decades, U.S. policy has reflected the implicit assumption that trade liberalization is beneficial for everyone, with few distributional downsides over time. But this assumption hasn’t been borne out. Instead, decades of trade liberalization have led to a backlash that resulted in both 2016 presidential nominees opposing the Obama Administration’s proposed Trans Pacific Partnership (TPP). And since 2017, President Donald Trump has begun a trade war with China; raised tariffs on the grounds of protecting national security; renegotiated NAFTA, though on terms that do not obviously …

Decoding Guilty Minds: How Jurors Attribute Knowledge And Guilt, Owen D. Jones, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie, Morris B. Hoffman, Kenneth W. Simons

Vanderbilt Law School Faculty Publications

A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what a person was thinking months or years earlier at the time of the alleged offense, either about the results of his conduct or about some elemental fact (such as whether the briefcase he is carrying contains drugs). Despite the central importance of this task in the administration of …

The Money Problem: A Rejoinder, Morgan Ricks

Vanderbilt Law School Faculty Publications

Let me begin by thanking Yuri Biondi and Accounting, Economics and Law: A Convivium for hosting this book review symposium. It is a privilege to have my book reviewed by this distinguished roster of experts. Since the book's publication I have had some time to reflect on its strengths and weaknesses. Unsurprisingly, the reviewers in this issue have identified a number of the book's more glaring shortcomings. But it relieves me to say that I don't think the book's key arguments have (yet) sustained any mortal wounds, even if solid blows have been landed.

The basic thesis of The Money …

Algorithmic Risk Assessments And The Double-Edged Sword Of Youth, Christopher Slobogin, Megan T. Stevenson

Vanderbilt Law School Faculty Publications

Risk assessment algorithms—statistical formulas that predict the likelihood a person will commit crime in the future—are used across the country to help make life-altering decisions in the criminal process, including setting bail, determining sentences, selecting probation conditions, and deciding parole. Yet many of these instruments are “black-box” tools. The algorithms they use are secret, both to the sentencing authorities who rely on them and to the offender whose life is affected. The opaque nature of these tools raises numerous legal and ethical concerns. In this paper we argue that risk assessment algorithms obfuscate how certain factors, usually considered mitigating by …

The Silence Penalty, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant's prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence. This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments-including the results of a new 400-person mock juror simulation conducted for this Article-and data from real trials. It concludes that the penalty defendants suffer when they refuse …

How And Why Is The American Punishment System "Exceptional"?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Anyone interested in American criminal justice has to wonder why we have so many more people in prison—in absolute as well as relative terms—than the western half of the European continent, the part of the world most readily comparable to us. This book, consisting of eleven chapters by eminent criminal law scholars, criminologists and political scientists, provides both a detailed look at how U.S. punishment is different and an insightful analysis of why that might be so. While many chapters in the book describe previously declared positions of the authors, there is also much that is new in the book, …

Restoring Trade's Social Contract, Timothy Meyer, Frank J. Garcia

Vanderbilt Law School Faculty Publications

As we write, the United States, Canada, and Mexico are renegotiating the North American Free Trade Agreement (NAFTA). These talks—and their possible failure—represent the biggest shift in U.S. economic policy in a generation. Since NAFTA came into force in 1994, it has transformed the North American economy. NAFTA has made possible continent-wide supply chains, in industries like the auto sector, that have reduced costs and allowed American automakers to remain competitive; it has opened markets for American agriculture; it has greatly increased the standard of living in Mexico; and it has reduced consumer prices across the continent. Despite these gains, …

Free Trade, Fair Trade, And Selective Enforcement, Timothy Meyer

Vanderbilt Law School Faculty Publications

The 2016 presidential election was one of the most divisive in recent memory, but it produced a surprising bipartisan consensus. Donald Trump, Hillary Clinton, and Bernie Sanders all agreed that U.S. trade agreements should be, but are not, “fair.” Although only achieving broad consensus recently, the critique that U.S. trade agreements are unfair has been around for decades. Since 1992, much of this fairness critique has focused on ensuring that trade liberalization does not undermine non-commercial values, such as environmental protection and labor conditions. Beginning with the negotiation and ratification of the North American Free Trade Agreement (NAFTA) in the …

Detection And Correction Of Case-Publication Bias, Edward K. Cheng

Vanderbilt Law School Faculty Publications

The article proceeds as follows. Section 2 motivates the study by de scribing the reasons why case publication bias may be especially acute in the evidentiary context. Section 3 discusses methods for detecting and correcting publication bias. It surveys existing approaches, introduces the intuition behind MSE, and then develops a series of detection models. Section 4 turns to applications. To validate the method, I first apply the proposed model to simulated data sets in which I control the level of publication bias present. I then apply the model to a newly compiled data set of evidentiary rulings dealing with false …

Signed, Sealed, Delivered--Not Yours: Why The Fair Labor Standards Act Offers A Framework For Regulating Gestational Surrogacy, Zoe M. Beiner

Vanderbilt Law Review

Over the past several decades, gestational surrogacy has emerged as a rapidly growing industry. Such growth has prompted an enormous amount of debate among scholars, human rights advocates, economists, and the media over a wide array of legal and ethical issues. This debate is perhaps most evident in the divergence of state approaches to the regulation of gestational surrogacy-for example, some states ban the practice entirely, others allow only altruistic arrangements, and many states simply do not address surrogacy at all. The fractured landscape of surrogacy regulation has resulted in artificially high costs and, often, uncertainty for all parties involved. …

Behind The Steele Curtain: An Empirical Study Of Trademark Conflicts Law, 1952-2016, Tim W. Dornis

Vanderbilt Journal of Entertainment & Technology Law

The law on international trademark disputes is founded on precedent from 1952. Steele v. Bulova Watch Co. is the first and only Supreme Court decision addressing the question of how far the Lanham Act should be extended beyond the United States' national borders when international infringement is at issue. The decision laid the foundation for a three-pronged test that focuses on the factors of defendant nationality, effects on US commerce, and conflicts with foreign law. Although international trademark conflicts have multiplied dramatically--particularly throughout the last decade--there has been no systematic and comprehensive account of the actual state of the law. …

A Free Ride: Data Brokers'rent-Seeking Behavior And The Future Of Data Inequality, Krishnamurty Muralidhar, Laura Palk

Vanderbilt Journal of Entertainment & Technology Law

Historically, researchers obtained data from independent studies and government data. However, as public outcry for privacy regarding the government's maintenance of data has increased, the discretionary release of government data has decreased or become so anonymized that its relevance is limited. Research necessarily requires access to complete and accurate data. As such, researchers are turning to data brokers for the same, and often more, data than they can obtain from the government. Data brokers base their products and services on data gathered from a variety of free public sources and via the government-created Internet. Data brokers then recategorize the existing …

Virtual Reality Exceptionalism, Gilad Yadin

Vanderbilt Journal of Entertainment & Technology Law

Virtual reality is here. In just a few years, the technology moved from science fiction to the Internet, from specialized research facilities to living rooms. These new virtual reality environments are connected, collaborative, and social-built to deliver a subjective psychological effect that believably simulates spatial physical reality. Cognitive research shows that this effect is powerful enough that virtual reality users act and interact in ways that mirror real-world social and moral norms and behavior.

Contemporary cyberlaw theory is largely based on the notion that cyberspace is exceptional enough to warrant its own specific rules. This premise, a descendant of early …

Linking The Public Benefit To The Corporation: Blockchain As A Solution For Certification In An Age Of "Do-Good" Business, Margaret D. Fowler

Vanderbilt Journal of Entertainment & Technology Law

As part of its now-infamous emissions scandal, Volkswagen spent tens of millions of dollars on advertising geared toward environmentally conscious consumers. The scandal is an example of "greenwashing," which, along with the corresponding term "fairwashing," represents the information asymmetry present in product markets that involve claims of social and environmental responsibility in companies' production practices. As consumers and investors demand responsible production practices from both traditional corporations and entities organized under the newer corporate form known as public benefit corporations (PBCs), it becomes even more important to verify that those entities' supply chains are, in fact, meeting standards for the …