Law Commons^™

Delaware Chancery Court Resets The Rules Of The Road For Disclosure-Only Settlements, Robert S. Reder, Lauren Messonnier Meyers

Vanderbilt Law Review En Banc

No abstract provided.

Statistical Testing Of Peremptory Challenge Data For Possible Discrimination; Application To Foster V. Chatman, Joseph L. Gastwirth

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Court Refuses To Dismiss Aiding And Abetting Claim Against Sell-Side M&A Financial Advisor, Robert S. Reder, Stephanie Stroup Estey

Vanderbilt Law Review En Banc

No abstract provided.

How Should A Judge Be: In Defense Of The Judge As Ceo, David Lat

Vanderbilt Law Review En Banc

No abstract provided.

Pointing A Way Toward A Brighter Future For Public Education: A Comment On Lynch V. Alabama, William R. Weaver

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Supreme Court Clarifies Cleansing Effect Of Fully-Informed Stockholder Vote, Robert S. Reder

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Court Dismisses Duty Of Loyalty Claim Against Disinterested, Independent Directors, Robert S. Reder, Tiffany M. Burba

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Chancery Court Extends Cleansing Effect Of Stockholder Approval Under Kkr To Two-Step Acquisition Structure, Robert S. Reder

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Chancery Disqualifies Lead Petitioners In Dell Appraisal Who Inadvertently Voted For Management Buyout, Robert S. Reder, Stanley Oneyeador

Vanderbilt Law Review En Banc

No abstract provided.

Explaining Scotus Repeaters, Richard M. Re

Vanderbilt Law Review En Banc

No abstract provided.

Diagnosis And Treatment Of The Superiority Problem, Jay Tidmarsh

Vanderbilt Law Review En Banc

No abstract provided.

Normalizing Erie, Suzanna Sherry

Vanderbilt Law School Faculty Publications

This Article argues that the Erie doctrine should be normalized by bringing it into line with ordinary doctrines of federalism. Under ordinary federalism doctrines – such as the dormant commerce clause, implied preemption, federal preclusion law, and certain special “enclaves” of federal common law – courts will displace state law to protect federal interests even when neither Congress nor the Constitution clearly articulates those interests. But under the Erie doctrine, the Supreme Court has mandated exactly the opposite approach: State law trumps federal interests unless those interests have been legislatively codified. This striking anomaly has not been noticed, in part …

How The International Criminal Court Threatens Treaty Norms, Michael A. Newton

Vanderbilt Journal of Transnational Law

This Article demonstrates the disadvantages of permitting a supranational institution like the International Criminal Court (ICC) to aggrandize its authority by overriding agreements between sovereign states. The Court's constitutive power derives from a multilateral treaty designed to augment sovereign enforcement efforts rather than annul them. Treaty negotiators expressly rejected efforts to confer jurisdiction to the ICC based on its aspiration to advance universal values or a self-justifying teleological impulse to bring perpetrators to justice. Rather, its jurisdiction derives solely from the delegation by States Parties of their own sovereign prerogatives. In accordance with the ancient maxim "nemo plus iuris transfer …

The Regulatory Contract In The Marketplace, Emily Hammond, David B. Spence

Vanderbilt Law Review

For decades, energy policy has struggled to reconcile two distinct visions for the future: the first seeks ever-more-competitive, efficient, and dynamic electricity markets, while the second seeks an ever-greener mix of electricity generation sources. Caught within this push-and-pull dynamic is the regulatory contract--a nineteenth-century concept that stands more for ordered regulation than competitive markets. This Article examines how piecemeal pursuit of two energy visions has produced mismatches between rapidly evolving markets and governance institutions that cannot change as quickly. To better evaluate these mismatches, the Article develops a framework that accounts not just for market operation and environmental externalities, but …

The Price Of Silence: How The Griffin Roadblock And Protection Against Adverse Inference Condemn The Criminal Defendant, Kelsey Craig

Vanderbilt Law Review

In 1965, the Supreme Court held in Griffin v. California that the Fifth Amendment privilege against compelled self-incrimination prohibits judges and prosecutors from pointing to a defendant's failure to testify as substantive evidence of guilt. This doctrine assumes that such a prosecutorial or judicial "adverse comment" compels a negative inference-that the defendant is hiding something. The Griffin Court held that this assumption amounts to an unfair penalty on a defendant's invocation of a constitutionally protected right. This doctrine, however, makes a dangerous misstep in additionally assuming that the prohibition of adverse comment and the administration of limiting instructions curtail a …

Regulation 2.0: The Marriage Of New Governance And "Lex Informatica", Abbey Stemler

Vanderbilt Journal of Entertainment & Technology Law

Throughout history, disruptive technologies have transformed industry and signaled the destruction or creation of regulatory structures. When crafting regulations, governments often utilize Regulation 1.0 approaches, characterized by top-down design standards that dictate exactly how the regulated must act in order to prevent market failures. Regulation 1.0 increases barriers to entry and decreases the room for business experimentation. Regulation 2.0, by contrast, is a theoretical approach for regulating companies that rely on platform-mediated networks. It marries New Governance theory and the concept of lex informatica. This marriage allows for the collaborative creation of design standards that are then enforced through mediating …

The Patentability Of Digital "Manufactures" As 3d Printing Expands Into The 4d World, Laura E. Powell

Vanderbilt Journal of Entertainment & Technology Law

Technological advances have always been supported by a robust patent system that encourages disclosure of inventions by providing protection to the inventor. Society has benefitted from this system, which has relied on a definition of "manufacture" that has essentially remained unchanged for over 200 years. However, with the advent of digital technologies, and in particular Four-Dimensional Printing, courts have been inconsistent in evaluating the patentability of such inventions. Recent Supreme Court and Federal Circuit decisions have indicated that some software may be eligible for patent protection. This is particularly important for 4D printing wherein the manifestation of the printed product …

Shining A Light On Shadow Money, John Crawford

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Court Addresses Entrenchment Claims Brought Against Directors Under Activist Hedge Fund Attack, Robert S. Reder, Stanley Oneyeador

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Court Invalidates Commonly-Used Corporate Classified Board Provision As Contrary To Delaware Law, Robert S. Reder, Lauren Messonnier Meyers

Vanderbilt Law Review En Banc

No abstract provided.

Is Erie Normal, Michael S. Greve

Vanderbilt Law Review En Banc

No abstract provided.

The Constitution Of Agency Statutory Interpretation, Evan J. Criddle

Vanderbilt Law Review En Banc

No abstract provided.

In Praise Of (Some) Ex Post Regulation: A Response To Professor Galle, Kyle D. Logue

Vanderbilt Law Review En Banc

No abstract provided.

From Nuremberg To Kenya: Compiling The Evidence For International Criminal Prosecutions, Jennifer Stanley

Vanderbilt Journal of Transnational Law

The Prosecutor of the International Criminal Court has encountered significant difficulty in conducting investigations. Faced with violence on the ground, witnesses who fear repercussions, and limitations on resources, the Prosecutor has turned to relying on secondary forms of evidence, such as the reports of NGOs and other third-party information providers.

This Note argues that the Prosecutor's use of such evidence is problematic because it fails to adequately follow the evidentiary rules of the Court and, subsequently, to protect the rights of witnesses and defendants. Moreover, the Office of the Prosecutor's dependence on third-party evidence has stunted the Prosecutor's ability to …

Should The Best Offense Ever Be A Good Defense?, Colonel Gary P. Corn

Vanderbilt Journal of Transnational Law

The Chairman of the Joint Chiefs of Staff's Standing Rules of Engagement/Standing Rules for the Use of Force (SROE/SRUF) for U.S. Forces provides strategic guidance to the armed forces on the authority to use force during all military operations. The standing self-defense rules in the SROE for national, unit, and individual self-defense form the core of these use-of-force authorities. The SROE self-defense rules are incorrectly built on a unitary jus ad bellum framework, legally inapplicable below the level of national self-defense. Coupled with the pressures of sustained counter-insurgency operations, this misalignment of individual and unit self-defense authorities has led to …

Tax, Don't Ban: A Comparative Look At Harmful But Legitimate Islamic Family Practices Actionable Under Tort Law, Benjamin Shmueli

Vanderbilt Journal of Transnational Law

Massive migration of Muslims to the West in recent years has raised the question whether Shari'a--Islamic law--should apply to Muslim couples living in these countries. The issue is particularly acute when it comes to family life and the possibility of using tort law in cases of harmful religious practices that are permitted by Muslim law but are contrary to Western liberal values. Using tort law as a soft solution, that is, taxing that practice rather than banning it by criminal sanctions, may be a balanced and efficient solution, at least in some cases. The Article demonstrates this view--tax, don't ban--through …

Mystery Date: Advocating For A Harmonized System Of Expiration Date Labeling Of Food, Akshat Tiwari

Vanderbilt Journal of Transnational Law

Americans throw out roughly 25 percent of the food they bring home. Negative perceptions associated with expiration dates are a leading cause for this waste. However, a complex patchwork of state-run regulatory regimes and varying terminology makes it difficult for consumers to determine whether a food product is unsafe to eat or simply past a peak quality level arbitrarily set by manufacturers. Regulatory trends in Europe, the United Kingdom, Canada, Australia, and New Zealand suggest a move towards binding expiration date labeling through guidelines for establishing a "best before" or "use-by" date. This Note examines laws currently in place in …

Insuring Takings Claims, Christopher Serkin

Vanderbilt Law School Faculty Publications

Local governments typically insure themselves against all kinds of losses, from property damage to legal liability. For small- and medium-sized governments, this usually means purchasing insurance from private insurers or participating in municipal risk pools. Insurance for regulatory takings claims, however, is generally unavailable. This previously unnoticed gap in municipal insurance coverage could lead risk averse local governments to underregulate and underenforce existing regulations where property owners threaten to bring takings claims. This seemingly technical observation turns out to have profound implications for theoretical accounts of the Takings Clause that focus on government regulatory incentives. This Article explores the impact …

The Commensurability Myth In Antitrust, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

Modern antitrust law pursues a seemingly unitary goal: competition. In fact, competition—whether defined as a process or as a set of outcomes associated with competitive markets—is multifaceted. What are offered in antitrust cases as procompetitive and anticompetitive effects are typically qualitatively different, and trading them off is as much an exercise in judgment as mathematics. But despite the inevitability of value judgments in antitrust cases, courts have perpetuated a commensurability myth, claiming to evaluate “net” competitive effect as if the pros and cons of a restraint of trade are in the same unit of measure. The myth is attractive to …

Safety First: The Deceptive Allure Of Full Reserve Banking, Morgan Ricks

Vanderbilt Law School Faculty Publications

In Safe Banking, Professor Adam Levitin joins a venerable tradition in the money and banking literature. That tradition, called full reserve banking, has claimed a number of illustrious supporters over the years, including Professors Irving Fisher, Henry Simons, and Milton Friedman. The basic idea of full re­serve banking is seductive in its simplicity: "banks" should own nothing but physical cash. Because a full reserve bank has no in­vestments, it can suffer no investment losses. A run on such a bank would be harmless, because the bank would never fail to meet redemptions (barring any loss or theft of cash). The …