Law Commons^™

The Future Of Sharia Law In American Arbitration, Erin Sisson

Vanderbilt Journal of Transnational Law

A rising tide of Islamophobia in the United States has led, in recent years, to state-level efforts to prohibit the application of Sharia law in American courts. While these bans have been largely unsuccessful as legislation--the U.S. Tenth Circuit Court of Appeals has even declared one such ban unconstitutional--the growing uneasiness among Americans regarding the application of Sharia law persists. Similar tensions have been addressed in Canada and the United Kingdom through reform of the application of Sharia law in alternative dispute resolution (ADR) mechanisms. By taking a critical look at the American ADR system through the lens of Canadian …

Judges As Guardian Angels: The German Practice Of Hints And Feedback, Robert W. Emerson

Vanderbilt Journal of Transnational Law

The German practice of Richterliche Hinweispflicht is a judicial duty to give hints and feedback. In a very proactive position, the German judge asks questions of the parties designed to clarify and sharpen the key facts and issues and to give the parties a chance to correct matters that may be grounds for disposition. German judges also must ensure that the parties understand all matters that could affect the outcome of the case. In effect, the German judge's roles may be viewed as civil servant, teacher, and activist, rather than as umpire and overseer, as in the United States.

American …

Female Genital Mutilation And Designer Vaginas In Britain: Crafting An Effective Legal And Policy Framework, Lisa R. Avalos

Vanderbilt Journal of Transnational Law

The prevalence of female genital mutilation (FGM) in Britain and Europe has grown in recent years as a result of international migration, and European institutions have grown increasingly concerned with eradicating the practice. According to the European Parliament, approximately 500,000 girls and women living in Europe have undergone FGM and are suffering with the lifelong consequences of the procedure, and more than 30,000 girls in Britain are thought to be at risk of future FGM. Although Britain strengthened its law against FGM in 2003, the number of girls at risk continues to grow, and there have been no convictions for …

Challenges For "Affected States" In Accepting International Disaster Aid: Lessons From Hurricane Katrina, E. Katchka

Vanderbilt Journal of Transnational Law

The International Law Commission (ILC) draft articles on the protection of persons in the event of disasters purport to "facilitate an adequate and effective response to disasters that meets the essential needs of the persons concerned, with respect to their full rights" by setting forth complementary principles governing both individual state responsibilities and international cooperation in disaster response. The principles presented in the draft articles reflect an application of established international law principles as well as current, practical challenges to coordinating international disaster cooperation. This article applies specific ILC draft articles targeting the role of the state impacted by a …

Beyond Voluntary Corporate Social Responsibility: Corporate Human Rights Obligations To Prevent Disasters And To Provide Temporary Emergency Relief, Anastasia Telesetsky

Vanderbilt Journal of Transnational Law

Much of the focus of the emerging field of International Disaster Law is on state responsibility. Yet the source of some disasters is the failure of corporations to address known risks created by a company or located on company property. This Article queries whether there are obligations for corporations to act under international human rights law to prevent disasters where corporations have control over known hazards such as tailings dams or chemical dumps. This Article concludes that corporations have a legal duty to act in order to support and protect human rights whenever there is corporate knowledge of hazards that …

Attribution Of Conduct And Liability Issues Arising From International Disaster Relief Missions: Theoretical And Pragmatic Approaches To Guaranteeing Accountability, Giulio Bartolini

Vanderbilt Journal of Transnational Law

This Article analyzes legal issues related to harmful activities of international disaster relief personnel, focusing on two distinct issues. On the one hand, the analysis centers on internationally wrongful acts carried out by relief personnel and uncertainties related to the attribution of conduct, due to the array of actors involved in such missions. Such an examination will be carried out through the lens of draft articles adopted by the International Law Commission on the responsibility of states and international organizations where some non-exhaustive references are made to such scenarios. On the other hand, the Article focuses on liability issues that …

Nuclear Power, Risk, And Retroactivity, Emily Hammond

Vanderbilt Journal of Transnational Law

The 2011 Fukushima nuclear disaster presented a familiar scenario from a risk perception standpoint. It combined a classic" dread risk" (radioactivity), a punctuating event (the disaster itself), and resultant stigmatization (involving world wide repercussions for nuclear power). Some nuclear nations curtailed nuclear power generation, and decades-old opposition to nuclear power found a renaissance. In these circumstances, risk theory predicts a regulatory knee-jerk response, potentially resulting in inefficient overregulation. But it also suggests procedural palliatives that conveniently overlap with administrative law values, making room for the engagement of the full spectrum of stakeholders. This Article sketches the U.S. regulatory response to …

Fukushima's Shadow, Lincoln L. Davies, Alexis Jones

Vanderbilt Journal of Transnational Law

The March 11, 2011 tragedy at the Fukushima Daiichi power station in Japan immediately etched its place in history as arguably the most noteworthy of the three nuclear energy disasters to date. This Article surveys the response to Fukushima both in Japan and worldwide. It observes that rather than stopping what many thought was a burgeoning "nuclear renaissance," the global policy reaction post-Fukushima was more varied. Using the examples of Germany, the United States, and China, the Article examines the three general approaches to nuclear energy that nations have followed since Fukushima: abandonment, status quo, and expansion. The Article then …

The Democratization Of Energy, Joseph P. Tomain

Vanderbilt Journal of Transnational Law

The electricity industry is changing in dramatic ways. Most significantly, as demonstrated by the Obama Administration's Clean Power Plan, the country is witnessing the merger of energy and environmental regulation. Historically, energy regulation was driven by the need to produce more power for economic growth. By contrast, environmental regulation attended to the pollution of the environment. Production of energy depends upon the use of natural resources, and throughout the fuel cycle from extraction and transportation to the burning and disposal of those resources, the environment is directly affected. Most dramatically, greenhouse gas emissions present climate change challenges. In order to …

Illegally Evading Attribution? Russia's Use Of Unmarked Troops In Crimea And International Humanitarian Law, Ines Gillich

Vanderbilt Journal of Transnational Law

The Crimean Crisis of February and March 2014 poses several questions to International Law. This Article explores one of them: Does the use of unmarked troops, soldiers in uniforms but without nationality insignia, in Crimea violate principles of International Humanitarian Law (IHL)?

This Article first provides a brief summary of Crimea's history and the facts of the 2014 Crimean Crisis. It will be argued that IHL is applicable to the events in Crimea in February and March 2014 since the unmarked soldiers are attributable to Russia--either as Russian nationals or through Russia's exercise of control over them--and that there was …

Beyond Known Worlds: Climate Change Governance By Arbitral Tribunals?, Valentina Vadi

Vanderbilt Journal of Transnational Law

Can economic development and the fight against climate change be integrated successfully? What role, if any, does international investment law play in global climate governance? Can foreign direct investments (FDI) be tools in the struggle against climate change? What types of claims have foreign investors brought with regard to climate change--related regulatory measures before investment treaty arbitral tribunals? This Article examines the specific question as to whether foreign direct investments can mitigate and/or aggravate climate change. The interplay between climate change and foreign direct investments is largely underexplored and in need of systematization. To map this nexus, this Article proceeds …

If You Can't Beat Them, Join Them: The U.S. Solution To The Issue Of Corporate Inversions, Scott Deangelis

Vanderbilt Journal of Transnational Law

There is an old proverb, "If you can't beat them, join them, "that suggests that those who cannot win against some group should stop fighting and instead band together with them. It seems clear that when it comes to corporate inversions, the United States cannot win. Instead, countries overseas have taken advantage of tax break schemes to lure multinational companies away from the United States. This Note suggests that to prevent further foreign inversions, the United States should join these foreign countries in two ways. First, the United States should put its support behind the OECD's plan of a multilateral …

Should All Drugs Be Patentable?: A Comparative Perspective, Cynthia M. Ho

Vanderbilt Journal of Entertainment & Technology Law

Although there has been substantial discussion of the proper scope of patentable subject matter in recent years, drugs have been overlooked. This Article begins to address that gap with a comparative perspective. In particular, this Article considers what is permissible under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as how India and Canada have utilized TRIPS flexibilities in different ways to properly reward developers of valuable new drugs, while also considering the social harm of higher prices beyond an initial patent term on drugs.

This Article brings valuable insight into this area at a critical …

Applying Patent-Eligible Subject Matter Restrictions, J. Jonas Anderson

Vanderbilt Journal of Entertainment & Technology Law

The US Supreme Court's difficulty in promulgating a standard for patent-eligibility has not gone unnoticed in the academy. Hundreds of academic conferences, including this one, have been devoted to the topic. The goal of this Article is not to solve the seemingly intractable problem of patent-eligibility doctrine. The goal of this Article is rather more modest. Instead of normatively assessing patent-eligible subject matter doctrine, this Article seeks to identify which foundational theories of patent-eligible subject matter can most readily be applied by courts and the US Patent and Trademark Office via Section 101. In doing so, this Article categorizes the …

Patent-Eligible Processes: An Audience Perspective, Timothy R. Holbrook, Mark D. Janis

Vanderbilt Journal of Entertainment & Technology Law

Many of the problems with modern patent-eligibility analysis can be traced back to a fundamental philosophical divide between judges who treat eligibility as the primary tool for effectuating patent policy and those who take patent-eligibility as nothing more than a coarse filter to be invoked in rare cases. After several years in which the coarse filter approach seemed to have the upper hand, the eligibility-as-king approach now is firmly in ascendancy. This Article resists that trend, exploring more centrist approaches to patent-eligibility, particularly in the context of process inventions. This Article first examines the practice of undertaking an eligibility analysis …

Confronting Legal And Technological Incongruity: Remote Testimony For Child Witnesses, Elizabeth A. Mulkey

Vanderbilt Journal of Entertainment & Technology Law

Child victims are often the only eyewitnesses in cases against their abusers. A child's testimony may be necessary for a prosecutor to secure a conviction. However, the child must often face his or her abuser and relive the traumatic experience while giving this testimony. Any accommodations or protection of a child witness at trial must be balanced against the defendant's rights under the Confrontation Clause. The Supreme Court's decision in Maryland v. Craig allows child victims to testify via one-way, closed-circuit television in some circumstances, but the Court has not addressed two-way, closed-circuit testimony or remote testimony. In the absence …

Father(S?) Of Rock & Roll: Why The Johnnie Johnson V. Chuck Berry Songwriting Suit Should Change The Way Copyright Law Determines Joint Authorship, Timothy J. Mcfarlin

Vanderbilt Journal of Entertainment & Technology Law

"Father(s?) of Rock & Roll" utilizes a unique and historic resource--the previously unseen deposition testimony of Chuck Berry and his piano man Johnnie Johnson--to analyze the problems with how copyright law currently determines joint authorship and to propose a new "Berry-Johnson" joint authorship test. In 2000, Johnson sued Berry, claiming he co-wrote the music to nearly all the significant songs in the Berry canon. Granted access to the case file, I quote and analyze key portions of their deposition testimony, using it as a case study of high-level collaborative creativity and exploring what it can teach us about how best …

The Public Interest Inquiry For Permanent Injunctions Or Exclusion Orders: Shedding The Myopic Lens, P. Andrew Riley, Scott A. Allen

Vanderbilt Journal of Entertainment & Technology Law

President Obama's 2013 veto of a US International Trade Commission (ITC) exclusion order, issued to address Apple Inc.'s infringement of a patent owned by Samsung, thrust the ITC's public interest inquiry into the spotlight. Historically, however, these factors rarely weighed against a remedy at the ITC. Likewise, US district courts have rarely declined to issue a permanent injunction after finding a patent valid and infringed due solely to the public interest factor--the last of the four factors that the Supreme Court put in place in eBay Inc. v. Merc Exchange, L.L.C. More recent decisions addressing the public interest in both …

An Immovable Object And An Unstoppable Force: Reconciling The First Amendment And Antidiscrimination Laws In The Claybrooks Court, Erin A. Shackelford

Vanderbilt Journal of Entertainment & Technology Law

This Note broadly addresses the problem of racial stereotyping and racial roles in the media. It is viewed through the lens of Claybrooks v. ABC, Inc., a recent federal district court decision of first impression. In Claybrooks, the court dismissed the plaintiffs discrimination claims, ruling that casting decisions were protected under the First Amendment. This Note will address the problem of racial discrimination by focusing on racial misrepresentations in the media and the role of reality television programs in that landscape. Specifically, this Note will propose a new solution for the Claybrooks court. This analysis will assert that cast members …

Drones, Henry H. Perritt Jr., Eliot O. Sprague

Vanderbilt Journal of Entertainment & Technology Law

Drones represent the latest revolution in civilian aviation. The sophisticated miniaturized electronics, electric propulsion systems, low cost, and ability to capture close-in imagery make microdrones attractive assets for aerial activities that have never before been feasible. Larger configurations--machodrones--have longer endurance and range and the capability to fly at higher altitudes. They will complement manned airplanes and helicopters in missions for which their cost proves advantageous or for which manned flight is too hazardous or otherwise undesirable. Specific features of electric propulsion, control systems, and the capability of autonomous flight maneuvers will stimulate new types of missions for microdrones; in other …

The Internet After Aereo: How To Save Innovation From The Public Performance Right, Patrick C. Tricker

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court's decision in American Broadcasting Companies, Inc. v. Aereo, Inc. overturned the Second Circuit's rule that separate copies create separate performances without clarifying the scope of a performance. The decision creates significant ambiguity surrounding the public performance right and potentially massive liability for cloud-computing companies. Since cloud computing allows customers to run programs remotely from a company's servers, two independent customers watching different copies of the same movie from the same cloud results in the cloud conducting a public performance. This Note examines this problem, concludes that the current public performance regime has become obsolete, and proposes a …

Losing The Best And The Brightest: The Disappearing Wage Premium For H-1b Visa Recipients, Danielle M. Drago

Vanderbilt Journal of Entertainment & Technology Law

The pressure for immigration reform in the technology industry revolves heavily around the use of the H-1B visa, which allows companies to temporarily hire highly skilled workers. This Note provides an empirical analysis of the historical wages of H-1B workers and domestic workers in the technology industry to determine whether H-1B workers earn more or less than domestic workers in the same industry. In the technology industry, H-1B workers' wage premium has eroded in recent years relative to domestic workers, leading to stagnant wages that may deter the "best and the brightest" from choosing to enter into the H-1B process. …

Initial Interest Confusion "Internet Troika" Abandoned? A Critical Look At Initial Interest Confusion As Applied Online, Connie D. Nichols

Vanderbilt Journal of Entertainment & Technology Law

The Ninth Circuit's opinion in Brookfield Communications, Inc. v. West Coast Entertainment Corp. seemingly created a standard to be applied in trademark infringement cases on the Internet. Despite the cautions contained within the Ninth Circuit's holding, Brookfield ushered in an era in which many courts placed emphasis on three factors of the "likelihood of confusion" test finding initial interest confusion in many online infringement cases based solely on these three factors. For over a decade, inconsistent application within the Ninth Circuit and other jurisdictions created a disjointed body of case law on initial interest confusion online. The Ninth Circuit's opinion …

The International Copyright Problem And Durable Solutions, Susy Frankel

Vanderbilt Journal of Entertainment & Technology Law

The calls for copyright reform at both the national and international level are growing louder. Many authors, owners, distributors, users, and consumers are dissatisfied with the current regime, but solutions are not easy to find. Existing rules are inadequate to deal with copyright in the digital world and partial solutions are not likely to be durable. The problems of copyright are not confined to one jurisdiction. Just as the creation and dissemination of copyright works are global, copyright's legal problems are an international problem. Existing international rules alone cannot provide the solution to this policy debate, but they do have …

Invalidated Patents And Associated Patent Examiners, Shine Tu

Vanderbilt Journal of Entertainment & Technology Law

This study attempts to determine whether there are common characteristics between examiners who issue invalidated patents. This study uses two new patent databases that code for nearly 1.7 million patents and approximately one thousand patents that were litigated to a 'final" judgment between 2010 and 2011. This study finds that approximately one-third of patents that are litigated to final judgment are found invalid. Most invalidated patents are found in technology centers 1600, 2600, and 2700, which correspond to biotechnology and organic chemistry, communications, and computer science, respectively. Most patents are invalidated on prior art-type novelty and obviousness grounds. This study …

The Ironies Of Automation Law: Tying Policy Knots With Fair Automation Practices Principles, Meg L. Jones

Vanderbilt Journal of Entertainment & Technology Law

Rapid developments in sensors, computing, and robotics, including power, kinetics, control, telecommunication, and artificial intelligence have presented opportunities to further integrate sophisticated automation across society. With these opportunities come questions about the ability of current laws and policies to protect important social values new technologies may threaten. As sophisticated automation moves beyond the cages of factories and cockpits, the need for a legal approach suitable to guide an increasingly automated future becomes more pressing. This Article analyzes examples of legal approaches to automation thus far by legislative, administrative, judicial, state, and international bodies. The case studies reveal an interesting irony: …

The Lisbon Agreement: Why The United States Should Stop Fighting The Geneva Act, Danielle Dudding

Vanderbilt Journal of Entertainment & Technology Law

In May 2015, members of the World Intellectual Property Organization (WIPO) held a Diplomatic Conference that resulted in the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications. The Act modified the Lisbon Agreement (originally created in 1958), extending its previous protection of appellations of origin to geographical indications as well. The United States, which remains a non-party to the Lisbon Agreement, has been adamantly against the expansion of the Agreement to geographical indications. This Note explores the issues surrounding the Geneva Act, the state of the law and international agreements leading up to the Act, …

Secondary Data: A Primary Concern, Kelsey L. Zottnick

Vanderbilt Journal of Entertainment & Technology Law

This Note addresses privacy concerns implicated by rising secondary data mining. Secondary data mining is the use of personal information for a purpose other than the original. This complex technology drives billions of dollars in commercial industry yet remains largely unregulated. This Note examines the current state of the data mining industry and the behavioral fallacies that belie societal concerns about online privacy. Further, relevant federal, state, and constitutional laws appear outstripped by these technological advances. An analysis of potential privacy solutions examines the advantages and disadvantages of implementing each one through the privacy community, the federal government, and the …

Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell

Vanderbilt Journal of Entertainment & Technology Law

When does work become play and play become work? Court shave considered the question in a variety of economic contexts, from student athletes seeking recognition as employees to professional blackjack players seeking to be treated by casinos just like casual players. Here, this question is applied to a relatively novel context: that of online gold farming, a gray-market industry in which wage-earning workers, largely based in China, are paid to play fantasy massively multiplayer online games (MMOs) that reward them with virtual items that their employers sell for profit to the same games' casual players. Gold farming is clearly a …

Passive Takings: State Inaction And The Duty To Protect Property, Christopher Serkin

Vanderbilt Law School Faculty Publications

As conventionally understood, regulatory takings doctrine protects property owners from the most significant costs of legal transitions. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be, and that governments can violate the Takings Clause by failing to act in the face of a changing world. This is much more than a minor refinement of takings law because government liability for failing to act means that, in at least some circumstances, the Takings Clause imposes an affirmative obligation on the government to protect property. This liability runs counter to …