Law Commons^™

Dangerous Digital Standing: Applying Spokeo And Transunion To Online Privacy Harms, Michael E. Ten Eyck

Vanderbilt Journal of Entertainment & Technology Law

In recent years, the California Invasion of Privacy Act (CIPA) has been used to sue website-holding companies for utilizing chat bots that record online conversations. Such claims have already generated high-profile class actions and multidistrict litigations, with many more expected. Because CIPA violations often occur writ large when websites retain data from their chat boxes, and the statute imposes relatively high damages, there exists an incentive for plaintiffs’ attorneys to seek out aggregated claims, generating time-consuming litigation. Meanwhile, the harms suffered by those bringing suit fall under the category of intangible privacy harms. The US Court of Appeals for the …

Chevron Was Not, And Cannot Be, Overruled: The Dullness Of Loper Bright, Edward L. Rubin

Vanderbilt Law School Faculty Publications

As expected, the Supreme Court declared, in Loper Bright Enterprises. v. Raimondo,' that "Chevron is overruled." The Court was notably vague about the principle that would replace it, declaring that "courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority," but providing little guidance about how this crucial task should be performed. This is an obvious defect in an opinion with innumerable defects, but the problems with the Court's decision go well beyond its specific flaws. The Court did not understand the decision that it claimed to overrule. Chevron is not simply a …

Silent Trusts And The Conflicts Of Laws, Jeffrey A. Schoenblum

Vanderbilt Law School Faculty Publications

There are good reasons why the settlor of a trust may not wish the beneficiaries of the trust to know of its existence at the time that the trust is created and funded or even for years thereafter. The settlor may not want beneficiaries to learn of the trust's existence until they have matured, accomplished a specific task, become self-supporting, or abandoned prob- lematic or destructive behaviors. In other instances, the settlor may not, in principle, be opposed to the beneficiaries learning about the existence of the trust but does not want to grant direct access to the trust instrument …

Presidential Regulation, Ganesh Sitaraman, Timothy Meyer

Vanderbilt Law School Faculty Publications

This Article documents and analyzes the rise of a new mode of economic governance: presidential regulation. Today, the President regularly bypasses not only Congress but also the executive branch’s own administrative agencies and directly imposes sweeping new economic regulations. President Biden, for instance, created new regulatory regimes governing producers of artificial-intelligence technologies, companies that trade […]

Statutory Contracts, Jeff Gordon

Vanderbilt Law School Faculty Publications

Private law offers a unique solution to the problem of long-term fiscal commitment. When Congress enacts a spending program that will take many years to reach fruition, there is a risk of a subsequent Congress or President cutting off funding in the interim. There is no escape from the problem within appropriations law itself One solution, however, is to entrust private sector allies as vessels of long-term commitment. As a matter of political economy, that solution draws on policy-feedback theory. As a matter of law, the solution rests on a mechanism that Congress already uses but has not recognized its …

Information For Environmental Governance: The Value Of State Of The Environmental Reports In A Polarized Era, Michael Vandenbergh, M. Caballero, Ethan I. Thorpe

Vanderbilt Law School Faculty Publications

The increasingly dysfunctional federal democratic process poses chal- lenges to effective, consistent responses to the most important environmental risks. Information about the state of the environment and the performance of environmental protection measures can play a surprisingly important role by providing the information necessary for the public and decision-makers to resist disinformation efforts and prioritize the responses to these threats. Until 1997 the White House Council on Environmental Quality (CEQ) produced annual State of the Environment (SOE) reports as required by Section 201 of the National Environmental Policy Act of 1969. In response to paperwork reduc- tion legislation adopted in …

Responsive Democracy And The Administrative State, Edward L. Rubin

Vanderbilt Law School Faculty Publications

I would like to thank Dean Micheal Scharf and Professor Jonathan Entin for inviting me to Case Western Reserve University School of Law to deliver the Frank J. Battisti Memorial Lecture and thank all of you for attending. It's really a pleasure to be here and to have the opportunity to offer a talk named after such a distinguished jurist. Judge Frank J. Battisti served on the United States District Court for the Northern District of Ohio for 33 years, and he was chief judge of that court for more than two decades. During his time on the bench, Judge …

Reconciling Regulatory Impact Analyses And Agencies, Sydney C. Schoonover, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Federal administrative agencies frequently undertake regulatory impact analyses to provide the basis for promulgating new regulations and justify the reasonableness of regulations upon judicial re- view. Using analytical methods, agencies quantify and compare the relative costs and benefits of regulatory alternatives, seeking policies that maximize net societal benefits, subject to statutory constraints. Loper Bright Enterprises v. Raimondo threatens to upend this methodological check on the rationality of agency action in two distinct ways: first by limiting the permissibility of regulatory impact analysis as a basis for regulation, and second by replacing technical and scientific-informed components of the analysis with judicial …

Google’S Chrome Antitrust Paradox, Shaoor Munir, Konrad Kollnig, Anastasia Shuba -- Independent Researcher, Zubair Shafiq

Vanderbilt Journal of Entertainment & Technology Law

This Article examines Google’s dominance of the browser market, highlighting how Google’s Chrome browser plays a critical role in reinforcing Google’s dominance in other markets. While Google portrays Chrome as a neutral platform built on open-source technologies, this Article shows that Chrome is, in fact, instrumental in Google’s strategy to reinforce its dominance in the online advertising, publishing, and browser markets. The examination of Google’s strategic acquisitions, anticompetitive practices, and the implementation of so-called “privacy controls” underlines that Chrome is far from a neutral gateway to the web. Rather, it serves as a key tool for Google to maintain and …

The Purpose Of The Preliminary Injunction, Samuel L. Bray

Vanderbilt Law Review

This Article explores a reshaping of the preliminary injunction that is occurring in the federal courts. A preliminary injunction is designed to be a “hold in place” order, blocking actions by the parties that would undermine the efficacy of the court’s remedial options. But the preliminary injunction is becoming a device for accelerating the merits decision. Instead of a four-factor test for preliminary relief, increasingly there is one factor: the merits. This Article critiques this transformation, and it argues that the preliminary injunction should be recentered on the protection of the court’s remedial options.

Super-Canons, William N. Eskridge, Jr.

Vanderbilt Law Review

Especially since 2017, the Roberts Court has been imposing a new regime onto American public law. The new regime is paring back the authority of expert agencies to implement their delegated responsibilities, reducing the power of Congress to make long-term delegations while enhancing the power of the states and the President (and the U.S. Supreme Court itself), protecting and encouraging expression of religious values in public and commercial fora, limiting women’s rights to reproductive choice, and reducing the capacity of state and private institutions to inculcate diversity and inclusion.

This Article maintains that the new regime is not entirely driven …

Energizing Federal Action Toward A More Coherent National Nuclear Waste Policy, Sydney C. Schoonover

Vanderbilt Law Review

Nuclear power offers the United States one viable path toward decarbonization of the energy sector as the only zero-emission energy source capable of baseload generation. Despite the clear climatic, economic, and energy independence benefits of expanding reliance on nuclear power and the emergence of cheaper, safer, and more efficient advanced reactor technology that has lowered barriers to adoption, buildout of nuclear generation capacity faces impediments. The lack of a comprehensive national nuclear waste management strategy is perhaps the most significant obstacle to the siting of new nuclear power facilities. Currently, due to the federal government’s failure to establish a geologic …

Rethinking The Litigation Boom, Charlotte S. Alexander

Vanderbilt Law Review

This Article rethinks the functions and functioning of litigation booms. Using an original data set that tracks Fair Labor Standards Act cases during the 2000–2016 period, the Article shows that booms are not anomalies but are instead an expected behavior in our distributed system of civil law enforcement. Specifically, plaintiffs and their lawyers “herd” or converge on a particular type of case, fueled by information transmitted via networks, made available to the general public, or both. The data also reveal that booms can end on their own, reaching a natural tipping point without legislative or judicial retrenchment. This analysis has …

The Pamela Anderson Exception: How The Public Figure Doctrine Makes Involuntary Pornography A Subject Of Public Concern In Congress’S Revenge Porn Statute, Jared Kossover

Vanderbilt Law Review

Congress’s chosen remedy for the proliferation of online revenge porn has a design flaw. The Violence Against Women Reauthorization Act, codified in 15 U.S.C. § 6851, provides a civil right, enforceable in federal court, to victims of nonconsensual pornography. However, exceptions for matters within the “public concern,” written into the statute with the First Amendment in mind, weaken the force of the Act and threaten to make its proscriptions a nullity. This Note calls on Congress to narrow the public concern exception in the Violence Against Women Reauthorization Act to include only matters of political significance. Such an amendment will …

Understanding Brady Violations, Jennifer M. Mcaward

Vanderbilt Law Review

This largest-ever study of adjudicated violations of Brady v. Maryland provides a detailed and nuanced understanding of who suppresses material evidence in criminal cases, as well as why, how, where, and how often. Its findings complicate the conventional wisdom that Brady violations are the work of nefarious prosecutors who intentionally withhold material evidence from criminal defendants. While it is true that “bad faith” permeates this area of constitutional noncompliance, a substantial minority of Brady cases stem from “good faith” errors by prosecutors and suppression by law enforcement officers. Mostviolations occur in a small number of states, and most often, state …

Brain-Dead Surrogacy And Testamentary Disposition: Legal Rights Over One’S Body For Reproductive Purposes, Cassandra L. Nelson

Vanderbilt Law Review

Through the advancement of modern medical technology, including life-support machines and in vitro fertilization, it may soon become possible to carry out brain-dead surrogacy—that is, gestational surrogacy in brain-dead carriers. When a person experiences brain death, life-support machines can nevertheless artificially maintain the body’s homeostatic functions, including the ability to gestate a fetus, for several years thereafter. There have already been several reported instances of brain-dead pregnant people on ventilation successfully carrying and delivering children. In light of the United States’ historical interest in promoting familymaking, this emerging avenue for surrogacy could increase the availability of surrogates and expand opportunities …

Central Clearing The U.S. Treasury Market, Yadav Yesha, Joshua Younger

Vanderbilt Law School Faculty Publications

In October 1956, the famed U.S. architect Frank Lloyd Wright revealed a radical and ambitious new project. The Illinois would be a mile high, four times the height of the Empire State Building (at that point still the tallest building in the world). Key to this vision was a type of foundation known as the taproot, which offered a means by which to secure such a towering edifice while still enabling architectural creativity-or, as Wright put it, to "make rigidity possible at [ ] extreme heights." A similar design had previously protected another Wright design, the Imperial Hotel in Tokyo, …

Race, The Academy, And The Constitution Of The War On Drugs, Jeffrey Bellin, Bennett Capers

Vanderbilt Law School Faculty Publications

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only in- creased since the war was declared in 1971. David Pozen's new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a "right" to use drugs with surprising, if fleeting, suc- cess. Pozen asks what might have been, exploring why the courts backtracked and effectively re- moved the Constitution as a meaningful obstacle to drug prohibitions. …

Central Clearing The U.S. Treasury Market, Yesha Yadav

Vanderbilt Law School Faculty Publications

This Essay considers this regulatory response. It focuses on the introduction of mandatory central clearing for most trades in U.S. Treasuries-a proposal seeking to significantly reshape the day-to-day functioning of the Treasury market.10 Central clearing is a well-established means by which to reduce the risk of loss associated when trading parties default. It does so by providing a well-resourced and informed central counterparty (CCP) to step into and stand behind trades. CCPs help promote stability by reducing the probability of, and potential losses associated with, the default of a trading counterparty. But they also impose certain costs on market participants …

Reimagining The Music Industry: In Search Of A More Perfect Union, Loren E. Mulraine Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

This Article challenges the long-standing accepted business model of the music industry, including recording contract terms, ownership of masters, artist recoupment, and copyright terminations. It explores the negative implications of failing to revise these methods and neglecting to create a more equitable relationship between artists and recording companies. Indeed, the music industry is an outlier from almost every commercial industry in its financing structure. As such, this Article suggests that the future industry model should include equity ownership of master recordings. It then reviews the need to revise contract terms and eliminate the unilateral options and the unduly burdensome clauses …

Shareholder Litigation In Delaware: An Empirical Investigation, James D. Cox, Randall S. Thomas, Lynn Bai

Vanderbilt Law Review

The empirical study of shareholder litigation in state courts is a seriously underexamined subject. To remedy this gap, we collected data on all 4,741 fiduciary duty complaints filed in the Delaware Court of Chancery over a sixteen-year period, from January 1, 2004, to December 31, 2019. After removing the duplicative cases consolidated into a lead complaint, the number of unique complaints was reduced to 2,958 in our dataset. In our coding, we examined over one hundred variables (with many variables being further subdivided into as many as eight subvariables) for each of these cases, including information about the parties, claims, …

Destroy, Rebuild, Repeat: How To Break The Climate Disaster Cycle, Mark Nevitt

Vanderbilt Law Review

Climate change is fundamentally reshaping how we live, where we live, and whether we invest in or retreat from climate-exposed communities—but climate and disaster law is not changing with the climate. This legal latency is driven by antiquated statutes, doctrines, and policies that have not kept pace with the climate moment. Ex ante adaptation decisions governing where to live are life and death choices that shape ex post disaster response. Laws and policies should facilitate sound climate decisionmaking, but too often they frustrate individual and governmental decisions on whether to stay or retreat. In this Article, I argue that laws …

Retaliation And Confrontation Of The State, Jon Mcneal

Vanderbilt Law Review

Popular resistance to the weaponization of government has eroded in America. On the political Right, the post-Reagan consensus favoring limited government has given way to a new generation of leaders—like Vice President J.D. Vance and Florida Governor Ron DeSantis—who openly advocate for using state power against their political opponents. Collectively they are the New Right: a populist, antiestablishment, conservative movement opposing pluralistic systems, institutions, and cultural elites. While both political liberals and conservatives have wielded state power against their adversaries, leveraging state power to reward friends and punish enemies is fundamental to the New Right’s worldview. Following German jurist Carl …

In Government We Trust: Judicial Deference To Government Evidence In Removal Proceedings, Marie S. Celentino

Vanderbilt Law Review

On its face, the Form I-213 appears to be a humble bureaucratic form unremarkable to the untrained eye. In reality, this document alone can singularly sustain the federal government’s case for the deportation of a noncitizen in removal proceedings. The Form I-213 sits at the cradle of interlocking judicial and procedural norms within immigration practice that largely diminish the due process rights of noncitizens facing deportation. This Article sheds light on two important but relatively underexamined phenomena that undergird this system: how a disregard for evidentiary rules largely eliminates the government’s burden of proof in removal proceedings and how judicial …

Reasonable Ai: A Negligence Standard, Mihailis E. Diamantis

Vanderbilt Law Review

Even as artificial intelligence (“AI”) promises to turbocharge social and economic progress, its human costs are becoming apparent. For example, selfdriving technology will someday make traffic jams a thing of the past, but technologists now acknowledge that it will never eliminate all traffic deaths. By design, AI behaves in unexpected ways. That is how it finds unanticipated solutions to complex problems. But unpredictability also means that AI will sometimes harm us. To curtail these harms, scholars and lawmakers have proposed strict regulations (to help ensure firms develop safe algorithms) and strict corporate liability (for injuries that nonetheless occur). These rigid …

How Regulators Can Use Ai, John J. Nay, Troy A. Paredes

Vanderbilt Law Review En Banc

No abstract provided.

How Different Are The Trump Judges?, Stephen J. Choi, Mitu Gulati

Vanderbilt Law Review En Banc

Donald J. Trump’s first presidency broke the mold in many ways, including how to think about judicial appointments. Unlike other recent presidents, President Trump was open about how “his” judges could be depended on to rule in particular ways on key issues (e.g., guns, religion, and abortion) he was courting voters on. Other factors, such as age and personal loyalty to Trump, seemed important criteria as well. With selection criteria such as these, one might expect that Trump would select from a smaller pool of candidates than other presidents. Given the smaller pool and deviation from traditional norms of picking …

Proving The Future In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Expert opinion about dangerousness—the risk of reoffending—is commonly introduced at sentencing, criminal commitment proceedings, and some types of pretrial detention hearings. This Essay argues that the rules governing the admissibility of scientific evidence should apply to this testimony and that, on that assumption, such evidence must be (1) “material” (logically relevant, empirically generalizable, and epistemologically germane), (2) “probative” (a measure of accuracy, which is more stringent when the evidence is from an expert), (3) helpful to the factfinder (through promoting “incremental validity”), and (4) presented in a non-prejudicial manner (i.e., in a way that minimizes the possibility it will be …

Cleaning The Plastic Spring, Trip Johnson

Vanderbilt Law Review

Everyday plastic items typically display the chasing arrows symbol with a resin identification code. When seen on a plastic product, this seemingly insignificant trade combination causes the average consumer’s mind to confer unwarranted environmental benefits to the item. Plastic, unlike aluminum, glass, or paper, poses barriers to recycling that diminish a region’s recycling capabilities. Despite knowing most Americans lack the knowledge necessary to properly discard plastic waste, plastic-producing companies continue to plaster chasing arrows symbols and resin identification codes onto their products. Worse yet, these companies do so without explaining the available recycling opportunities or challenges associated with recycling most …

Reversing Perverse Incentives And Aligning Interests: A Statutory Approach To Combatting Sex Trafficking In The Hospitality Industry, Sara Seymour

Vanderbilt Law Review

The hospitality industry has a sex trafficking problem: Seventy-five percent of sex trafficking victims report coming into contact with a hotel at some point during their trafficking. Though hotel franchisors publicly tout their efforts to combat sex trafficking, they are not properly or adequately incentivized to intervene in a meaningful way. The majority of hotels in the United States are franchised, and for every franchised room that is rented out—whether for sex trafficking or otherwise—hotel franchisors receive royalties. Further, franchisors are motivated to dictate material consistency, like what brand of soap to use, but not safety measures, because it allows …