Law Commons^™

The Public Meaning Of Rfra Versus Legislators' Understanding Of Rlpa: A Response To Professor Laycock, James M. Oleske Jr.

Vanderbilt Law Review En Banc

No abstract provided.

Reviving Hanlester Network: A Safe Harbor For Harmless Remunerations Under The Anti-Kickback Statute, Cameron T. Norris

Vanderbilt Law Review En Banc

No abstract provided.

Why Wynne Worries Me, Edward A. Zelinsky

Vanderbilt Law Review En Banc

No abstract provided.

Rethinking The Right To Vote Under State Constitutions, Michael T. Morley

Vanderbilt Law Review En Banc

No abstract provided.

The Future Of Proxy Total Maximum Daily Loads After Virginia Department Of Transportation V. Epa, Kyle Kyle Robisch

Vanderbilt Law Review En Banc

No abstract provided.

Why Wynne Should Win, Dan T. Coenen

Vanderbilt Law Review En Banc

No abstract provided.

The Dormant Coordination Clause, Michael S. Greve

Vanderbilt Law Review En Banc

No abstract provided.

Comptroller V. Wynne And The Futile Search For Non-Discriminatory State Taxation, Adam B. Thimmesch

Vanderbilt Law Review En Banc

No abstract provided.

Hobby Lobby In Constitutional Waters: Two Life Rings And An Anchor, Gregory P. Magarian

Vanderbilt Law Review En Banc

No abstract provided.

How To Explain The "Implicit Exceptions" To Patent-Eligible Subject Matter, Wesley D. Markham

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court has as of late taken renewed interest in what inventions or discoveries are deserving of entry into the patent system. Section 101 of Title 35 opens the door to "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." Certain things--now referenced by the Court as "laws of nature, natural phenomena, and abstract ideas"--necessarily fall outside the statute's scope. The question is, why? Not why as a matter of policy, but why as a matter of law. The Court has not yet picked (or at …

Copyright's Knowledge Principle, Jenny L. Sheridan

Vanderbilt Journal of Entertainment & Technology Law

This Article argues that copyright jurisprudence has lost sight of the knowledge principle at the heart of the constitutional justification for copyright. The Framers envisioned the objective of copyright as promoting the advancement of knowledge for a democratic society by increasing access to published works. Under what is best termed the "knowledge principle," access to existing knowledge is a necessary condition for the creation of new knowledge. Copyright jurisprudence has largely protected the interests of producers--from early booksellers to modern Hollywood film companies--failing to notice the central role of access to works as a necessary pre-condition to the creation of …

Undocumented Migrants And The Failures Of Universal Individualism, Jaya Ramji-Nogales

Vanderbilt Journal of Transnational Law

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This Article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants in international human rights law, which are far fewer than often assumed. The Article demonstrates through a close analysis of relevant law that …

A Little Bit Of Laches Goes A Long Way: Notes On Petrella V. Metro-Goldwyn-Mayer, Inc., Samuel L. Bray

Vanderbilt Law Review En Banc

No abstract provided.

United States V. Carolina: How True Does Truthful Have To Be, Elissa Philip

Vanderbilt Law Review En Banc

No abstract provided.

Soy Dominicano - The Status Of Haitian Descendants Born In The Dominican Republic And Measures To Protect Their Right To A Nationality, Monique A. Hannam

Vanderbilt Journal of Transnational Law

On September 25, 2013, the Constitutional Tribunal of the Dominican Republic retroactively interpreted the Dominican Constitution to deny Dominican citizenship to children born to irregular migrants in Dominican territory since 1929. The tribunal's decision disproportionately affects approximately two hundred thousand persons of Haitian descent. In general, states have the right to determine their nationality criteria. However, the Dominican Republic violated international law by arbitrarily and discriminatorily depriving the Haitian descendants of their Dominican nationality and by increasing the incidence of statelessness. The international community should intervene urgently and decisively on behalf of the Haitian descendants. This Note proposes specific ways …

Determining International Responsibility Under The New Extra-Eu Investment Agreements: What Foreign Investors In The Eu Should Know, Freya Baetens, Gerard Kreijen, Andrea Varga

Vanderbilt Journal of Transnational Law

The EU's newly acquired competence over foreign investment poses largely unprecedented legal challenges: the Union's unique structure and functioning are bound to raise questions about the traditional format of international investor-State arbitration. Anticipating these challenges, the European Commission has proposed a Regulation on managing the financial responsibility that arises out of such arbitrations; a revised version of this proposal was adopted by the European Parliament and the Council of the European Union. After outlining the contemporary international investment regime, as well as the relevant aspects of the EU legal system, this Article scrutinizes three problematic issues under international law that …

The Dehumanization Of International Humanitarian Law: Legal, Ethical, And Political Implications Of Autonomous Weapon Systems, Markus Wagner

Vanderbilt Journal of Transnational Law

In the future, a growing number of combat operations will be carried out by autonomous weapon systems (AWS). At the operational level, AWS would not rely on direct human input. Taking humans out of the loop will raise questions of the compatibility of AWS with the fundamental requirements of international humanitarian law (IHL), such as the principles of distinction and proportionality, as well as complicate allocation of responsibility for war crimes and crimes against humanity.

This Article addresses the development toward greater autonomy in military technology along three dimensions: legal, ethical, and political concerns. First, it analyzes the potential dehumanizing …

The Essential Role Of Courts For Supporting Innovation, Erin O'Connor

Vanderbilt Law School Faculty Publications

Commercial parties commonly resolve their disputes in arbitration rather than courts. In fact, some estimate that as many as 90 percent of international commercial contracts opt for arbitration of future disputes, and others claim that some industries never resort to courts. However, a study of arbitration clauses in a wide variety of contracts, including franchise agreements, CEO employment contracts, technology contracts, joint venture agreements and consumer cell phone contracts, reveals that parties very often carve out a right to resort to courts for the resolution of claims designed to protect information, innovation, and reputation. Studies of international and cross-border contracts …

Can I Be Sued For That? Liability Risk And The Disclosure Of Clinically Significant Genetic Research Findings, Ellen Wright Clayton, Amy L. Mcguire, Et Al.

Vanderbilt Law School Faculty Publications

Genomic researchers increasingly are faced with difficult decisions about whether, under what circumstances, and how to return research results and significant incidental findings to study participants. Many have argued that there is an ethical—maybe even a legal—obligation to disclose significant findings under some circumstances. At the international level, over the last decade there has begun to emerge a clear legal obligation to return significant findings discovered during the course of research. However, there is no explicit legal duty to disclose in the United States. This creates legal uncertainty that may lead to unmanaged variation in practice and poor quality care. …

Credibility And War Powers, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In late August 2013, after Syrian civilians were horrifically attacked with sarin gas, President Barack Obama declared his intention to conduct limited airstrikes against the Syrian regime of President Bashar al-Assad. A year earlier, President Obama had announced that the use of chemical weapons was "red line" for the United States. Advocates for military action now argued that if the credibility of American threats diminished, dictators would have license to act with impunity. President Obama himself seemed to embrace this justification for action. "The international community’s credibility is on the line," he said in early September. "And America and Congress’s …

Anatomy Of An Uprising: Women, Democracy, And The Moroccan Feminist Spring, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

During the Arab Spring, Moroccan men and women first took to the streets on February 20, 2011 to demand governmental reforms. Their movement became known as the Mouvement du 20-Février. In a series of protests, Moroccans called for democratic change, lower food prices, freedom for Islamist prisoners, and rights for the Berber people. Initially, King Mohammad VI attempted to suppress the movement. When this approach did not succeed, in a televised speech, the King agreed to reform the government. In June 2011, the constitutional committee proposed changes that would reduce the King’s absolute powers, implement democratic reforms, and create a …

Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle

Vanderbilt Law School Faculty Publications

Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists,including judges and jurors.

This article describes similarities, as well as key differences, of legal and scientific cultures. And it explains six key principles about neuroscience that …

Group To Individual Inference In Scientific Expert Testimony, Christopher Slobogin, David Faigman, John Monahan

Vanderbilt Law School Faculty Publications

A fundamental divide exists between what scientists do as scientists and what courts often ask them to do as expert witnesses. Whereas scientists almost invariably inquire into phenomena at the group level, trial courts typically need to resolve cases at the individual level. In short, scientists generalize while courts particularize. A basic challenge for trial courts that rely on scientific experts, therefore, concerns determining whether and how scientific knowledge derived from studying groups can be helpful in the individual cases before them (what this Article refers to as "G2i'). To aid in dealing with this challenge, this Article proposes a …

The Implications Of Private Environmental Governance, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

If we look back twenty years from now, will private governance be as much a part of environmental law and policy as market mechanisms, or will it have faded into the woodwork along with many other promising new developments? In this Essay, I briefly examine four issues that will play a large role in determining the answer to this question. Part I examines whether PEG is a coherent, discrete concept. Part II explores the extent to which PEG affects environmental behavior and environmental quality. Part III discusses the interactions between private and public environmental governance. Part IV then evaluates whether …

Delay And Its Benefits For Judicial Rulemaking Under Scientific Uncertainty, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

The Supreme Court’s increasing use of science and social science in its decision-making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay — defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or …

Introducing New Voices, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Students rarely have the time to repackage last semester's research for submission to law reviews. Even if they do, law reviews are loathe to publish work submitted by students. Publication in a peer-reviewed journal is unlikelier still. Enter NEW VOICES. Our best students are the next generation of scholars, the academic farm team as it were. If we can identify and nurture them early, perhaps they will produce better scholarship down the road. And reading their work can invigorate our own, by allowing us to see things in a fresh new light.

The Classical Constitution And The Historical Constitution: Separated At Birth, Suzanna Sherry

Vanderbilt Law School Faculty Publications

No abstract provided.

Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig

Vanderbilt Law School Faculty Publications

Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best practices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure …

The Judges Of The U.S. Judicial Panel On Multidistrict Litigation, Tracey E. George, Margaret S. Williams

Vanderbilt Law School Faculty Publications

The United States Judicial Panel on Multidistrict Litigation (or "MDL Panel") is one of a small number of special federal courts created pursuant to Article III by Congress and staffed by a Chief-Justice-appointed group of Article III judges for limited terms. The MDL Panel is a powerful judicial institution with substantial discretion over complex litigation in the United States. For all practical purposes, it controls where many of the most far-reaching and significant private civil actions will be resolved which can affect procedural and substantive rights of the parties. An understanding of who has served on the MDL Panel would …

Alleyne On The Ground: Factfinding That Limits Eligibility For Probation Or Parole Release, Nancy J. King, Brynn E. Applebaum

Vanderbilt Law School Faculty Publications

This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, …