Law Commons^™

Netchoice, Regulatory Competition, And The Real Battle Behind Social Media Regulations, Tao Huang, Assistant Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

Regulating online social media platforms has been a fiercely debated issue for years. The NetChoice case decided by the US Supreme Court 2023 Term arises from a circuit split regarding Florida and Texas laws that regulate social media content moderation. Most discussions on regulation of social media content moderation have focused on whether social media platforms are speakers (editors) or carriers (conduits), and whether their moderation practice constitutes editorial judgment (i.e., protected speech). This Article argues that this framing of the debate ignores another more important role of social media platforms—as regulators. Platforms, when they enact and enforce their content …

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 …

Trouble, Trouble, Trouble: Taylor Swift, Ticketmaster, And Arbitration, Imre S. Szalai Professor Of Social Justice

Vanderbilt Journal of Entertainment & Technology Law

Through Ticketmaster’s use of arbitration and the controversy surrounding Ticketmaster’s botched sale of tickets for Taylor Swift’s The Eras Tour, this Article explores problems with the broad use of arbitration in the United States. Arbitration, a private contractual method of resolving disputes in a binding manner, is a neutral process that can provide many benefits. However, under the current broad scope of arbitration law, virtually every type of claim can be arbitrated. A more limited arbitration law could provide more robust enforcement of laws, greater accountability and transparency, and stronger development of precedent within our legal system. Stronger parties (like …

In Code We Trust: Blockchain’S Decentralization Paradox, Sangita F. Gazi

Vanderbilt Journal of Entertainment & Technology Law

This Article explores blockchain technology’s decentralization and governance challenges. It interrogates the tension between the idea of a trustless, decentralized economy at the core of blockchain’s promise and the realities of power concentration and information asymmetry. Examining the ramifications of the Crypto Winter of 2022 on trust and governance within the blockchain ecosystem, the Article also underscores a critical paradox within blockchain ecosystems. It argues that despite the foundational ethos of decentralization and open participation, the governance structures of major blockchain networks manifest significant centralization, challenging the narrative of an egalitarian, user-driven evolution. The current state of blockchain’s centralities fundamentally …

Artificial Intellectual Property, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The year is 2031. You just got up. Your smartwatch has registered the movement, and the coffee maker is on. After your shower, you pick up your phone or read the latest news on the New York Times app on your VR goggles or palm. Except for a few remaining columnists, the news is all written by AI machines. At work, you are responsible for a report on a new product for your company, and you use Al to design the product and prepare the pitch, including the visuals and text of your presentation to the C-suite. The Al system …

Chancery Court Rejects Argument That Corwin Is Inapplicable To Post-Signing Board, Robert S. Reder, Jonathan Rose

Vanderbilt Law School Faculty Publications

No abstract provided.

Delaware Supreme Court Rules That Officer Exculpation Amendments Do Not Require Separate Class Vote Of Non-Voting Shares, Robert S. Reder, Ricky Bayon-Barrera

Vanderbilt Law School Faculty Publications

Before 2022, Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL") permitted corporations, via amendments to their corporate charters, to exculpate corporate directors from personal liability for breaches of their duty of care ("& 102(b)(7)"). Delaware amended & 102(b)(7) in 2022 to allow corporations to extend exculpation to officers (the "2022 Amendment").

Goncharov (1973), Internet Folklore, And Corporate Copyright, Stacey M. Lantagne Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

Goncharov (1973) is a meme, which is a term broadly used to refer to a species of viral internet creativity. Memes can be many different things, but Goncharov is an especially rich, complex, collaborative, and mutating one. It revolves around a movie that does not exist. Goncharov is a fictional Martin Scorsese film that the internet collectively pretends was produced in 1973. Over the course of a few feverish weeks in the fall of 2022, social media users, with no coordination and without knowledge of each other or the overall project, created a cast, storyline, soundtrack, reviews, fanfiction, and a …

And The Two Shall Become One: Conceptualizing The Right Of Publicity As The Nexus Of Trademark And Copyright Law, Alvin Zhang, J.D. Candidate

Vanderbilt Journal of Entertainment & Technology Law

The right of publicity, which bars the unauthorized commercial use of a celebrity’s likeness, has become increasingly important in recent years. As generative artificial intelligence (AI) threatens to replace singers’ voices and actors’ appearances on screen, people are increasingly looking to the right of publicity to protect entertainers from exploitation.

Defining the right of publicity, however, is notoriously difficult. Since the right overlaps with both trademark and copyright law, circuit courts are currently split over whether to apply the trademark-based Rogers test or the copyright-based transformative use test.

This Note, in addressing this split, proposes a legal framework under which …

On Entityness And Takeovers: Acquisition Valuation, Theory Of The Firm, And Coase’S Error, Robert J. Rhee

Vanderbilt Law Review

This Article advances a theory of entityness that theorizes the firm and its relationship to the acquisition premium. This theory is the first scholarly analysis to construct a general model of takeover valuation by integrating the modern finance theory of asset value and a corrected Coasean theory of the firm. The acquisition premium is an enigma. Acquirers must pay it. But why? Isn’t the market price tethered to fundamental value through an efficient market? This enigma reveals a key insight about firms. The theory of entityness postulates that the acquisition premium is compensation for a capitalized asset intrinsic in the …

Discharging Government Debt, Nicole Langston

Vanderbilt Law Review

The bankruptcy system tries to strike a balance between a fresh economic start through debt forgiveness, or discharge, and the need to repay creditors. When the debt is owed to the government, however, the scale seemingly tips toward repayment because of the government’s role in providing essential services to society. But there are certain debts owed to the government that can be forgiven in bankruptcy and some that cannot. The consumer bankruptcy system does not forgive government-owed child support debt, penal debt, and student loan debt, which are disproportionally carried by poor women and racial minorities, but the system does …

Fighting Mass Arbitration: An Empirical Study Of The Corporate Response To Mass Arbitration And Its Implications For The Federal Arbitration Act, Richard Frankel

Vanderbilt Law Review

Mass arbitration represents the newest battleground between corporations and consumer and employee advocates over mandatory arbitration and access to justice. Companies thought they had finally won the arbitration wars after the U.S. Supreme Court ruled that they could insert class action bans into their arbitration clauses, bestowing companies with widespread immunity from a large swath of consumer and employee claims.

Recently, however, consumer and employee advocates have responded to class action bans by filing thousands of individual arbitration demands, which have exposed companies to millions of dollars in filing fees and resulted in large settlements. This practice has become known …

Original Discontent, William Magnuson

Vanderbilt Law Review

There are many theories of constitutional interpretation. Most, but not all, assert that, in interpreting the U.S. Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders, and ratifiers. This Article argues that, in doing so, judges, scholars, and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the …

Private Governance Comes Of Age: Vandenbergh, Light & Salzman’S Private Environmental Governance, Robert V. Percival

Vanderbilt Law Review En Banc

No abstract provided.

A “Profoundly Contractarian Predisposition”: Delaware Courts Decide Recent Drafting Disputes By Limiting Their Review To Four Corners Of Contracts, Robert S. Reder, Kathleen E. Sharkey

Vanderbilt Law Review En Banc

No abstract provided.

Voting Rights In The South Foreword, Karla Mckanders

Vanderbilt Social Justice Reporter

No abstract provided.

Voting Rights In The South: Challenges And Opportunities For An Equal Right To Vote, Anita Earls

Vanderbilt Social Justice Reporter

No abstract provided.

Redefining Race In Redistricting, R. Jared Evans, Victoria Wenger

Vanderbilt Social Justice Reporter

No abstract provided.

New Digital Dangers To Democracy: How Artificial Intelligence Could Supercharge Black Voter Suppression, Paul M. Barrett, Cecely Richard-Carvajal

Vanderbilt Social Justice Reporter

No abstract provided.

Sustained, Strategic Organizing Paves The Way For Jail Voting Work In Tennessee

Vanderbilt Social Justice Reporter

No abstract provided.

Getting It Right The First Time: Making Child Sex Offender Sentencing In The Fourth Circuit More Efficient With A New Methodology For Crafting Content- Based Special Conditions Of Supervised Release, Nicholas S. Curcio

Vanderbilt Law Review En Banc

Defendants convicted of child-sex crimes across the U.S. Court of Appeals for the Fourth Circuit have brought a number of appeals in recent years claiming that portions of their sentences must be vacated. They assert that the district court judges that sentenced them failed to abide by their statutory obligations under 18 U.S.C. § 3583(d) to appropriately impose certain restrictions on their ability to consume pornographic material or use the internet following their release from prison. While the Fourth Circuit tried to address this issue in 2020, appeals in the following years revealed that some district court judges were still …

Chancery Court Applies Entire Fairness Standard Of Review In Assessing Actions Of Conflicted Fiduciaries Engaging In “Value- Destructive” Spac Transactions, Robert S. Reder, John Rand Dorney

Vanderbilt Law Review En Banc

No abstract provided.

Chancery Court Declares Corwin Unavailable To Defend Against Unocal Claim For Injunctive Relief Applies Enhanced Scrutiny In Reviewing Defensive Measures Allegedly Adopted To Forestall Investor Activism, Robert S. Reder, Kathleen E. Sharkey

Vanderbilt Law Review En Banc

No abstract provided.

Central Bank Undersight: Assessing The Fed’S Accountability To Congress, Andrew T. Levin Professor Of Economics, Christina Parajon Skinner Assoc. Professor

Vanderbilt Law Review

As America’s central bank, the Federal Reserve (“Fed”) is unique among independent agencies in exercising powers that the U.S. Constitution granted to the legislative branch—namely, regulating the value of money and borrowing funds directly from the public. In delegating these powers, Congress designed the Fed to ensure that its monetary policy decisions would be insulated from political interference. Furthermore, Congress has a constitutional obligation to maintain effective oversight of the Fed’s exercise of these duties. Over the past fifteen years, however, the scope and complexity of monetary policy has outpaced Congress’s ability to monitor these policies through existing mechanisms of …

Is Sunlight The Best Disinfectant? The Role Of Regulation In Addressing Cybersecurity Concerns, Reagan Leverett

Vanderbilt Law Review

The technological landscape in the United States is changing rapidly, and this transformation carries with it unprecedented challenges for administrators, companies, and investors alike. In particular, cybersecurity concerns are growing in light of the new opportunities for cyber malfeasance in this landscape—opportunities to pillage corporate databases and exploit the sensitive consumer information housed therein. For administrators, these new threats challenge prevailing regulatory frameworks and demand novel solutions. For companies, this landscape brings financial and reputational threats. For stakeholders, the cyber era presents the risk of investment losses and, in some cases, loss of personal data.

The Securities and Exchange Commission …

The Internal Law Of Democracy, Kevin M. Stack

Vanderbilt Law Review

The conventional focus of election law is the constitutional, statutory, and judicial constraints on election officials. But the operation of elections also depends on the law that election officials themselves create. This “internal law of democracy”—produced by state and local election officials and addressed to election personnel and workers—provides on-the-ground guidance on registration, voting, and vote counting; specifies internal processes and protocols; and interprets and translates the meaning of constitutional and statutory law for use within the election bureaucracy.

This Article initiates examination of the internal law of democracy. The Article begins by introducing the idea of internal law—developed in …

Genealogy In Constitutional Law, Charles W. Tyler

Vanderbilt Law Review

Genealogy is a form of argument that seeks to discredit social phenomena by exposing their pernicious ancestry. In recent years, the U.S. Supreme Court has used genealogy to undermine key provisions of written law, doctrinal rules, longstanding practices, and private conduct in cases involving a wide range of constitutional issues.

After comprehensively documenting this development, this Article contends that genealogy can advance conclusions within several widely recognized modalities of constitutional interpretation. More specifically, genealogy can be used to undermine assertions of authority implicit in arguments from precedent, tradition, and ethos. And it can be used to reveal its object’s function …

The New Social Contracts, Andrew Keane Woods Professor Of Law

Vanderbilt Law Review

Contracts rule our digital world. Platform terms of service determine speech rights, privacy rights, and much more. This is no accident—from the very beginning, the U.S. model of internet governance was explicitly built around private ordering. In this context, it is worth asking what contract law and contract scholarship have to say about the public harms of digital dealmaking.

The answer, quite surprisingly, is: not much. To be sure, the rise of the digital economy has generated over two decades of sustained scholarship and several huge national reform efforts aimed at updating contract law. But this work has largely focused …

Dismantling A Marketplace For Private Violence: Reclaiming The Modern Weapons Of War To Forestall Filibusters Of The Web, Rachel Dodge

Vanderbilt Law Review

Civilian military activism is a challenge that U.S. policymakers have struggled with since the Founding. The United States’ first answer to this issue was the Neutrality Act of 1794, which embodied the young nation’s rejection of private violence and fear of being dragged into international conflicts by overzealous citizens. For decades, the Neutrality Act remained an important tool in the government’s repertoire and was amended to close newfound loopholes and respond to evolving technologies. In the mid-1800s, however, the government’s enforcement efforts waned, culminating in a period where the acts of the government and those of the governed bled together …

Losing Lives Despite “Lifesaving” Exceptions: Examining The Fatal Flaws Of Vague Abortion Bans And The Spectrum Of Medical Decisionmaking In Cancer Care, Kiersten Wood

Vanderbilt Law Review

On June 24, 2022, the Supreme Court upended decades of precedent pertaining to reproductive health when it held that abortion fell outside the purview of constitutionally protected rights. Since then, conservative states have raced to institute stringent abortion bans, with many lacking explicit exceptions for pregnant individuals enduring medical emergencies that necessitate care. Ambiguous statutory language has induced a chilling effect in the medical arena, where providers risk criminal and civil liabilities by performing requested and medically recommended abortions for emergent patients when fetal development would risk the life of the pregnant individual. Seized in the crossfire of hyperpolarized politics, …