Law Commons^™

What Happens When Police Robots Violate The Constitution?, Vid Sankar

Vanderbilt Journal of Entertainment & Technology Law

Public concern surrounding excessive use of force by police officers and the overmilitarization of the police continues to grow. The use of police robots, both with and without artificial intelligence capabilities, is already transforming the practice of policing. Police use of robots gained national attention on July 7, 2016, when Dallas police used a robot to disarm and kill an active shooter who killed five and injured several others in a hostage situation. The qualified immunity doctrine was designed to protect police officers, but under the Supreme Court's current qualified immunity framework, police robots may pose a challenge to accomplishing …

Data At The Docks: Modernizing International Trade Law For The Digital Economy, Andrew D. Mitchell, Neha Mishra

Vanderbilt Journal of Entertainment & Technology Law

The World Trade Organization (WTO) has been slow so far in responding to the various challenges arising from the integration of electronic commerce into cross-border trading activities. This slow response in the multilateral system is largely attributable to the complex, multifaceted nature of digital trade or electronic commerce, coupled with the conflict among countries on issues of Internet regulation and digital development. Nonetheless, international trade agreements, particularly at the WTO, play an important role in the creation of a secure, predictable, and trustworthy global regulatory framework for digital trade, and therefore, need to be reformed in a timely and meaningful …

When Discretion To Record Becomes Assertive: Body Camera Footage As Hearsay, Natalie P. Pike

Vanderbilt Journal of Entertainment & Technology Law

As police body camera footage pervades courtrooms across the country as evidence in criminal trials, courts must reevaluate whether, and under which evidentiary frameworks, they will admit the footage to prove that what the footage depicts is true. This Note analyzes the frameworks under which courts have historically admitted filmic evidence: namely, through authentication and as demonstrative evidence. It concludes that body camera footage is distinct from evidence traditionally admitted through those frameworks because body camera footage is akin to an officer's assertive statement--the officer has discretion to activate and aim the body camera. Courts should therefore exclude the footage …

Prescriptions At A Price: America's Opioid Crisis And The Increasing Toll On Drug Record Privacy, Reem Blaik

Vanderbilt Journal of Entertainment & Technology Law

How should the US Constitution govern patient privacy in the face of a public health emergency? Declaring the United States' opioid crisis as a public health emergency may put the already-compromised integrity of drug record privacy at higher risk by virtue of emerging administrative responses, existing Supreme Court precedent, and acquiescent state laws. The White House convened a summit on opioids where the then-US attorney general discussed law enforcement responses to the crisis. Although the Fourth Amendment protects against unreasonable searches and seizures, the Supreme Court's third-party doctrine generally grants state and federal actors access to records released to third …

Corporate Cybersecurity: The International Threat To Private Networks And How Regulations Can Mitigate It, Eric J. Hyla

Vanderbilt Journal of Entertainment & Technology Law

Cyberattacks are occurring at an accelerating pace. Foreign nations are increasingly utilizing hacking as a tool for economic gain, acts of aggression, or international political expression. At risk are US consumers'personal data, private firms' bottom line, and the economies'integrity. In response, federal and state lawmakers have issued a series of disparate, uncoordinated policies seeking to strengthen cybersecurity practices. However, recent events indicate that these policies are less than ideal. This Note suggests that a unified response to cybersecurity is required and calls for the establishment of a single, central federal agency with authority over all cybersecurity regulations. Such an agency …

Reconceptualizing Isds: When Is Ip An Investment And How Much Can States Regulate It, Rochelle Dreyfuss, Susy Frankel

Vanderbilt Journal of Entertainment & Technology Law

Victories by states in two investor-state dispute settlements (ISDS), one involving Uruguay's regulation of tobacco trademarks and the other challenging a doctrine of Canadian patent law, have suggested to some that ISDS is not a threat to state regulation involving intellectual property rights. In this Article, we dispute that notion. We show how these awards open pathways for future disputes and we argue that neither the resolution of these cases nor changes in more recent investment agreements meaningfully alter the threat of ISDS and the chill it imposes on legitimate regulatory activity. We suggest that there would be fewer disputes …

Eli Lilly And The International Investment Law Challenge To A Neo-Federal Ip Regime, Jason Yackee, Shubha Ghosh

Vanderbilt Journal of Entertainment & Technology Law

This Article examines the implications of the Eli Lilly case-and international investment law (IIL) more generally-for the operation of an international intellectual property (IP) regime that functions along the lines of the "neo-federalist" model developed by Professors Dinwoodie and Dreyfuss. The neo-federalist model involves a world in which the international IP regime grants national political communities substantial discretion to pursue their own visions of the normatively proper balance between the rights of IP creators and of those who seek to use it. Importantly, that discretion involves the ability to alter the existing normative balance in either the direction of more …

The Limits Of International Copyright Exceptions For Developing Countries, Ruth L. Okediji

Vanderbilt Journal of Entertainment & Technology Law

The relationship between intellectual property (IP) protection and economic development is not better understood today than it was five decades ago at the height of the independence era in the Global South. Development indicators in many developing and least-developed countries reflect poorly in precisely the areas that are most closely associated with copyright law's objectives, such as promoting democratic governance, facilitating a robust marketplace of ideas, fostering domestic markets in cultural goods, and improving access to knowledge. Moreover, evidence suggests that copyright law has not been critical to the business models of the creative sectors in leading emerging markets. These …

Commodified Promises And Contract Theory, Brian H. Bix

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Supreme Court Refuses To Establish A Presumption Favoring Deal Price In Statutory Appraisal Proceedings, Robert S. Reder, Blake C. Woodward

Vanderbilt Law Review En Banc

No abstract provided.

In Appreciation Of The Tarlock Effect, J.B. Ruhl

Vanderbilt Law School Faculty Publications

So, what is one to do about The Tarlock Effect? It didn't take long for me to realize early in my academic career-well before my foray into climate change adaptation policy-that there's just no escaping it. So I learned to appreciate it. Better yet, take advantage of The Tarlock Effect! My way of doing so is easy: when the next brilliant law review idea pops into my head, I read Dan's CV, knowing he probably has said something meaningful on the theme and hoping not everything worth saying. When I find the inevitable-indeed he has thought of it-I read his …

When Genealogy Matters: Intercountry Adoption, International Human Rights, And Global Neoliberalism, Barbara Stark

Vanderbilt Journal of Transnational Law

Genealogy isn't what it used to be. Once genealogy was the route to "legitimacy," whether literally--a "fillius nullius," a child of no one, was illegitimate, a bastard--or more fancifully--a tastefully mounted family crest could be obtained for virtually any surname, for a price. Or genealogy referred to the painstaking search for roots, the recovery of a personal history, the excavation of a trajectory that would give meaning to the present. But we are all legitimate now. And DNA testing provides more information than anyone can process, including, for some, the refutation of cherished ancestral myths, a good chance of developing …

Chinese Legal Development Assistance: Which Rule Of Law? Whose Pragmatism?, Samuli Seppanen

Vanderbilt Journal of Transnational Law

China is both a recipient and a donor of foreign development aid. As a donor state, China insists that it does not interfere in the internal affairs of foreign states, and it criticizes Western human rights conditionality and rule of law advocacy in development cooperation. Due to this non-interventionist posture, Chinese foreign development aid is commonly seen to exclude politically sensitive assistance for governance institutions and the legal sector in particular. This article demonstrates that Chinese foreign development aid does, in fact, include a legal component. Chinese legal development assistance comprises advice on law reform in developing countries; capacity-building programs …

Regulating Geoengineering: Applications Of Gmo Trade And Ocean Dumping Regulation, Elizabeth F. Quinby

Vanderbilt Journal of Transnational Law

Geoengineering--the deliberate, large-scale manipulation of the environment--is being increasingly considered as an emergency solution to curb global warming, as efforts to reduce greenhouse gas emissions have largely proved inadequate. This Note explores one form of proposed geoengineering: solar radiation management, which contemplates spraying reflective particles into the stratosphere to cause a global cooling effect. Geoengineering presents many challenges to regulators because of its potential to cause trans-boundary harm, its relative ease of enactment, and its unknown nature. Current international environmental treaties do not address geoengineering and would likely inadequately regulate it. But premature multilateral geoengineering regulations, if agreed to by …

Community Participation In Development, George K. Foster

Vanderbilt Journal of Transnational Law

A remarkable series of legal reforms and private innovations has given municipalities, indigenous peoples, and other local groups vital opportunities to influence development projects and secure economic benefits. This Article demonstrates the existence of this global trend and offers a model for explaining how and why it has manifested, as well as why--despite impressive gains--many communities still lack what they would consider sufficient influence or benefits. First, the Article argues that all of the formal rights and powers that local interests have secured in recent years result from pressure by communities and their supporters and are designed to address specific …

Made In Misery: Mandating Supply Chain Labor Compliance, Julia Zenker

Vanderbilt Journal of Transnational Law

Virtually all consumer products in the developed world are produced in supply chain factories abroad. Media exposes periodically reveal the deplorable working conditions in factories that produce products for world-renowned brands. Public institutions, however, tend to be too weak to enforce local labor laws in the prime jurisdictions for supply chain manufacturing, and the recent efforts of private regulators to maintain labor standards throughout the chains have failed. This Note argues that supply chain labor compliance ought to be mandatory, not aspirational. Several examples of innovative public-private partnerships have delivered on the promise of supply chain labor maintenance. In order …

Ebola Does Not Fall From The Sky: Structural Violence & International Responsibility, Matiangai Sirleaf

Vanderbilt Journal of Transnational Law

This Article challenges the conventional understanding that international crises are limited to instances of direct physical violence. Instead, it argues that the disproportionate distribution of infectious diseases like Ebola is a form of structural violence that warrants international intervention. In the field of global public health, structural violence is a concept used to describe health inequities and to draw attention to the differential risks for infection in the Global South, and among those already infected, for adverse consequences including death, injury, and illness. This Article clarifies how the concept of structural violence can be operationalized in law. It illustrates the …

Tweet To Defeat Government Bribes: Limiting Extraterritorial Jurisdiction Under The Foreign Corrupt Practices Act To Combat Global Corporate Corruption, Sarah Routh

Vanderbilt Journal of Transnational Law

Congress enacted the Foreign Corrupt Practices Act (FCPA) in the 1970s to address the rampant bribery of foreign officials by US companies. Because that resulted in a competitive disadvantage to US companies in the global corporate community, Congress amended the Act to add § 78dd-3, which extended the FCPA's jurisdiction to foreign entities and individuals whose alleged offenses had occurred within the United States. This led to a vast overall increase in enforcement matters, but foreign entities and individuals have been impacted the most, even if their actions have had virtually no connection to the United States. Not only have …

Cedaw And Treaty Compliance: Promoting Access To Modern Contraception, Katherine Sochacki

Vanderbilt Journal of Transnational Law

Modern contraception is widely recognized as a crucial component of family planning services and is recognized as a reproductive right under international human rights law. However, unmet need for contraception remains high, as many women in the developing world lack access to family planning services. This Note examines the role of the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) and its powers as a treaty monitoring body in increasing access to modern contraception. Drawing on empirical research, the example of CEDAW's influence on abortion rights, and the domestic politics theory of treaty compliance, this Note …

Governing Xenophobia, E. Tendayi Achiume

Vanderbilt Journal of Transnational Law

The problem of xenophobia has gained remarkable notoriety of late, and reports from around the world paint a chilling picture of its virulence, especially where refugees and other involuntary migrants are concerned. How should one understand this global picture of xenophobic contestation and its fallout, and specifically, how should one understand international law's relationship to both?

The first contribution of this Article is to introduce an emerging global framework intended by states and other international actors to improve global cooperation to combat the problem of xenophobia. This global anti-xenophobia framework (the Framework) is rooted in international human rights law and …

"Development" Versus" Sustainable Development"?: (Re-) Constructing The International Bank For Sustainable Development, Johanna A.P. Lorenzo

Vanderbilt Journal of Transnational Law

This Article scrutinizes the potential contribution of the World Bank, as an international economic organization, to the sustainable development agenda. Analyzing the reforms in policies, procedures, and organizational structure that accompanied the Bank's involvement in ostensibly political,non-economic matters such as human rights, environmental protection, and good governance--all of which are critical components of sustainable development--this Article contends that, contrary to the so-called mission creep argument, the evolution of the Bank's mandate is legally defensible and normatively desirable. Instead of amending its constituent instrument, the Bank has optimized the teleological-evolutionary approach to treaty interpretation to expand and reconstruct its mandate in …

Water Management On The Brahmaputra And The Applicability Of The Unece Water Convention, Stephanie Biggs

Vanderbilt Journal of Transnational Law

The Brahmaputra River is one of the world's largest transboundary waterways, yet it lacks a coherent, international management framework. The river, which flows from China through India and into Bangladesh, has been subject to decades of stalled negotiations, gamesmanship, and stop-gap oversight measures. As climate change and population growth place new stressors on the Brahmaputra and its riparian states, this arrangement will become untenable. Moreover, obtaining consensus may soon become impossible as the region grows increasingly water scarce. There is a brief window of opportunity to rectify inadequate management of the river and address urgent issues such as environmental protection …

The Evolution And Identification Of The Customary International Law Of Armed Conflict, Sir Michael Wood

Vanderbilt Journal of Transnational Law

Despite the many widely ratified treaties on the law of armed conflict (LOAC, also referred to as international humanitarian law (IHL)), customary international law remains of great importance in this branch of international law. So far as concerns international armed conflicts, customary international humanitarian law (CIHL) is of special importance in connection with states not party to Additional Protocol I of 1977. So far as concerns non-international armed conflicts, CIHL is of crucial importance for all states, since, for the most part, treaty provisions are rudimentary. The International Court of Justice has also had occasion to state that "a great …

Operational Challenges In Ground Operations In Urban Areas: An Idf Perspective, Nitsan Alon

Vanderbilt Journal of Transnational Law

The Israel Defense Forces (the IDF) is well versed in conducting ground operations. Since its inception along with the establishment of the State of Israel in 1948, the IDF has conducted a number of ground operations, as part of conflicts both long and short, against various actors, and in different circumstances. The Independence War of 1948, the Six Day War of 1967, and the Yom Kippur War of 1973 provided experience with ground operations against organized state militaries. The large-scale maneuver in the First Lebanon War of 1982 and the more limited maneuver in the Second Lebanon War of 2006 …

Challenges In The Interpretation And Application Of The Principle Of Distinction During Ground Operations In Urban Areas, Colonel Noam Neuman

Vanderbilt Journal of Transnational Law

This Article focuses on the tension between the often-referred-to articulation of the principle of distinction, as reflected in Additional Protocol I, and four practices that have been continuously employed in ground operations by most if not all of the world's militaries: masking, firing warning shots, breaching structures, and maneuvering with heavy machinery. These practices may very well result in incidental harm to civilians or incidental damage to civilian objects, yet they are either directed at an object that is not necessarily a military objective or they are not directed at any object or person at all. In light of the …

Some Reflections On The "Incidental Harm" Side Of Proportionality Assessments, Emanuela-Chiara Gillard

Vanderbilt Journal of Transnational Law

The rule on proportionality represents the most apparent manifestation of the balance between military necessity and considerations of humanity that underpins IHL. As military operations are taking place in densely populated areas with increasing frequency, the rule's significance for the protection of civilians has become even more key. It is of central relevance to the current discussions on the use of explosive weapons in populated areas.

Determining what falls into the two "sides" of the proportionality assessment as clearly as possible is essential to the proper application of the rule in practice. The expected "military advantage side" of the equation …

Special Issue: The Law Of Armed Conflict, Ben Wahlhaus, Hannah Lidicker

Vanderbilt Journal of Transnational Law

Few areas of international law are as consequential as the Law of Armed Conflict (LOAC). At its very core, it entails an endeavor to regulate death and destruction both for those who participate in a conflict and for those who are simply affected by the conflict.

LOAC is also of continued relevance. The number of armed conflicts around the world does not seem to be on the wane, and thus there is no shortage of situations in which LOAC remains applicable.

Just as the law retains its consequence and relevance, the study of LOAC retains its importance. Old questions warrant …

Four Comments On The Application Of Proportionality Under The Law Of Armed Conflict, Lieutenant Colonel Roni Katzir

Vanderbilt Journal of Transnational Law

The existence of the principle of proportionality as a norm is undisputed, and military commanders in armed conflicts around the world apply it continuously. As the principle is formulated in general terms--prohibiting attacks that may be expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects, or a combination thereof, that would be excessive in relation to the military advantage anticipated--it is also clear that interpreting and applying the different elements of the principle is no simple task.

This Article shall consider four select issues regarding different elements of the principle of proportionality.

First …

Keynote Address: The Recent Evolution Of The International Law Of Armed Conflict: Confusions, Constraints, And Challenges, Dr. Yoram Dinstein

Vanderbilt Journal of Transnational Law

The distinct honor conferred on me touches my heart, but I promise you that it will not go to my head. I realize that basically I am honored because I have reached an advanced age. Nevertheless, perhaps that age enables me to fully appreciate the trajectory of legal progress made in the past few decades. I was asked by the organizers of this conference to look back to my formative years and share with you insights as regards international law and the law of armed conflict (LOAC). Doing so, what comes first to mind is the unprecedented, immense growth of …

The Role Of Nonstate Entities In Developing And Promoting International Humanitarian Law, Dr. Knut Dormann

Vanderbilt Journal of Transnational Law

In recent years, both states and nonstate entities, the number of which has increased, have found ways to stimulate debate about how to interpret, apply, and clarify international humanitarian law (IHL). The development, interpretation, and clarification of IHL have largely occurred not so much through treaty making, but through other, non-legally binding avenues. There is a spectrum of such activity, ranging from state-driven processes aimed at producing non-legally binding outcomes, to hybrid processes involving states, independent experts, and various bodies. The International Committee of the Red Cross (ICRC) serves as a prominent actor in this regard, initiating ICRC-specific initiatives, expert …