Law Commons^™

Plea Bargains That Waive Claims Of Ineffective Assistance - Waiving Padilla And Fry, Nancy J. King

Vanderbilt Law School Faculty Publications

This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary. I also argue that although the Constitution does not prohibit …

Preemption Under The Controlled Substances Act, Robert A. Mikos

Vanderbilt Law School Faculty Publications

States are conducting increasingly bold experiments with their marijuana laws, but questions linger over their authority to deviate from the federal Controlled Substances Act. The CSA bans marijuana outright, and commentators have assumed that Congress sought to preempt all state laws that might somehow conflict with the CSA. Under the preemption rule now in vogue, state marijuana reforms are preempted if they either require someone to violate the CSA or, more controversially, if they pose an obstacle to Congress’s objective of eradicating marijuana. Seeking to avoid such conflicts, government officials have scuttled a number of important state marijuana reforms. This …

The Emotionally Intelligent Judge, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Judges, like all of us, have been acculturated to an ideal of dispassion. But judges experience emotion on a regular basis. Judicial emotion must be managed competently. The psychology of emotion regulation can help judges learn to prepare realistically for, and respond thoughtfully to, the emotions they are bound to feel. This short piece, written for a judicial audience, synthesizes research that can help judges accept, analyze, and shape the emotional aspects of their work.

Identifying A Maverick: When Antitrust Law Should Protect A Low-Cost Competitor, Taylor M. Owings

Vanderbilt Law Review

Shortly after taking office, President Barack Obama announced that his Administration would pursue a policy of vigorous antitrust enforcement in order to ensure healthy competition in the economy.' In two of the highest-profile antitrust cases that have followed, the United States Department of Justice ("DOJ") sought to block two proposed mergers in which the target companies were low-cost competitors in their industries. The DOJ won a judgment in November 2011 that blocked retail-tax giant H&R Block from acquiring 2nd Story Software, maker of the low-cost digital tax- preparation program TaxACT. A month later, the DOJ scored another "victory" when AT&T …

Bowman's Beanstalk: Patent Exhaustion In Self-Replicating Technologies, Zachary Loney

Vanderbilt Journal of Entertainment & Technology Law

The breakneck speed of innovation has once again brought uncertainty to the realm of patent law in the form of self-replicating technologies. Traditionally, the doctrine of patent exhaustion has provided a balance between the monopolistic powers of the patent holder and the consumer's freedom to utilize a purchased product without future interference. The rights holder receives compensation from the initial sale and retains the right to make and sell additional goods, while the consumer may use or resell their particular article without concern for additional fees or payments. Self-replicating technology blurs this line because a consumer's use inherently includes the …

Late Fathers' Later Children: Reconceiving The Limits Of Survivor's Benefits In Response To Death-Defying Reproductive Technology, Jeffrey W. Sheehan

Vanderbilt Journal of Entertainment & Technology Law

When Congress instructed the Social Security Administration to begin paying a social insurance benefit to "widows and orphans" in the 1930s, it simplified the process of determining an applicant's relationship to an insured decedent in two significant ways: First, Congress ordered the agency to honor the intestate laws of each state when determining whether an applicant was actually the child of a decedent, and second, it ordered the agency to treat any child who could qualify as an intestate heir as if that child actually depended on the parent financially at the time of the parent's death. Three-quarters of a …

In Search Of Safe Harbor: Suggestions For The New Rule 506(C), Usha Rodrigues

Vanderbilt Law Review En Banc

No abstract provided.

Blood Diamonds And Non-State Actors, Ian Smillie

Vanderbilt Journal of Transnational Law

The KPCS is a unique undertaking. It has all of the bells and whistles required to be an effective watchdog for an industry prone to theft, corruption, smuggling, and violence. It currently has the power of law in almost eighty national jurisdictions, and it has the blessing of the United Nations and the WTO. It is tripartite in nature, encompassing a wide range of important industry players and civil society organizations from Europe, North America, and Africa.

It is something of a tragedy, however. Its consensus decision making process has turned it into a dozy talk shop--unwilling and unable to …

Constraining Targeting In Noninternational Armed Conflicts, Peter Margulies

Vanderbilt Journal of Transnational Law

An American drone pilot thousands of miles away from Afghanistan sees a tempting target on his computer screen. Thanks to the Predator drone's video capabilities,' the pilot is treated to the spectacle of a known Taliban commander and over a dozen other armed men greeting a dozen tribesmen, who are also armed to the teeth. Everyone depicted on-screen has a gun. The pilot fires the Predator's missile. Shortly thereafter, he confirms the deaths of thirty Taliban fighters and associated forces.

While the facts above, particularly the presence of the known Taliban commander, tend to show that the strike was consistent …

Defending Democracy: A New Understanding Of The Party-Banning Phenomenon, Gur Bligh

Vanderbilt Journal of Transnational Law

Recent years have witnessed a growing tendency among established democracies to battle political extremism by banning extremist parties. This Article explores this phenomenon in its wide-ranging international manifestations. The Article aims to challenge the prevalent paradigm underlying the discussion of party banning and to introduce a new paradigm for conceptualizing the party-banning phenomenon in its current reincarnation. Traditionally, the discussion concerning party banning has been strongly shaped by the traumatic experience of Hitler's rise to power and the collapse of the Weimar Republic. Hence, it has focused upon parties that are overtly opposed to democracy, like communist or fascist parties. …

The Reciprocity Of Search, Tun-Jen Chiang

Vanderbilt Law Review

The discussion of search in patent law always focuses on one particular model of search: producers of commercial products are supposed to identify the patents that their products might infringe and then negotiate a license from the owners of those patents. This one-sided view of search responsibility is most evident in doctrine. As a doctrinal matter, patent law imposes an absolute duty on the producer of a commercial product to find all relevant patents and obtain licenses from each of the owners before commencing manufacture. Failure to meet this duty is punished by liability for infringement, where ignorance of the …

Patent Prior User Rights: What's The Fuss, Jacob Neu

Vanderbilt Law Review

No abstract provided.

"Gray Zone" Constitutionalism And The Dilemma Of Judicial Independence In Pakistan, Anil Kalhan

Vanderbilt Journal of Transnational Law

Many countries exist in a "gray zone" between authoritarianism and democracy. For countries in this conceptual space--which is particularly relevant today given the halting path of change in the Arab world--scholars, judges, and rule of law activists conventionally urge an abstract notion of' judicial independence" as a prerequisite for successful democratic transition. Only recently, for example, Pakistan's judiciary was widely lauded for its "independence" in challenging the military regime. However, judicial independence is neither an all-or-nothing concept nor an end in itself. With the return of civilian rule in Pakistan, a series of clashes between Parliament and the Supreme Court …

Jurisdictional Standards (And Rules), Adam L. Muchmore

Vanderbilt Journal of Transnational Law

This Article uses the jurisprudential dichotomy between two opposing types of legal requirements--"rules" and "standards"--to examine extraterritorial regulation by the United States. It argues that there is natural push toward standards in extraterritorial regulation because numerous institutional actors either see standards as the best option in extraterritorial regulation or accept standards as a second-best option when their first choice (a rule favorable to their interests or their worldview) is not feasible.

The Article explores several reasons for this push toward standards, including: statutory text, statutory interpretation theories, the nonbinary nature of the domestic/foreign characterization, the tendency of extraterritorial regulation to …

Lexis Nexus Complexus: Comparative Contract Law And International Accounting Collide In The Iasb-Fasb Revenue Recognition Exposure Draft, Kurt S. Schulzke, Gerlinde Berger-Walliser, Pier L. Marchini

Vanderbilt Journal of Transnational Law

U.S. and international accounting-standard setters plan to launch a new, global revenue accounting standard, Revenue from Contracts with Customers, in 2013. Poised at the nexus of comparative contract law and international accounting, the proposal's contract-based revenue recognition model creates new legal risks and opportunities for accountants, lawyers, clients, and financial statement users. Despite its focus on legally enforceable contracts, the proposed standard was drafted without input from the legal community. This Article models the proposal's complex contract-analysis process, demonstrating that its revenue outcomes may vary materially because of seemingly minor interjurisdictional differences in law applicable to "open-price" contracts; offers practice …

Hate Speech And Persecution: A Contextual Approach, Gregory S. Gordon

Vanderbilt Journal of Transnational Law

Scholarly work on atrocity-speech law has focused almost exclusively on incitement to genocide. But case law has established liability for a different speech offense: persecution as a crime against humanity (CAH). The lack of scholarship regarding this crime is puzzling given a split between the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia on the issue of whether hate speech alone can serve as an actus reus for CAH-persecution. This Article fills the gap in the literature by analyzing the split between the two tribunals and concluding that hate speech alone may be the …

Beyond Regulation: A Comparative Look At State-Centric Corporate Social Responsibility And The Law In China, Virginia H. Ho

Vanderbilt Journal of Transnational Law

Corporate social responsibility (CSR) is often understood as the voluntary actions firms take beyond legal compliance. However, in recent years, governments around the world have also begun to actively promote CSR, reflecting broader governance trends that embrace "soft law," quasi-voluntary standards, and other novel incentives to move companies toward and beyond minimum regulatory goals. Comparative legal scholarship has only recently begun to consider the intersections of these mechanisms with positive law, formal institutions, and traditional regulatory enforcement structures. The adoption of these policies in historically weak regulatory environments raises puzzling questions about their motivation, scope, and potential. As a leader …

Towards A Declaratory School Of Government Recognition, Joshua Downer

Vanderbilt Journal of Transnational Law

Recognition of governments has historically been a political matter. Governments could choose to recognize or not to recognize any other government, free from the auspices of international law. However, in the wave of prodemocracy optimism after the dissolution of the Soviet Union, a group of international legal scholars declared the existence of a universal democratic entitlement, which implied that recognition of governments had legal significance. These scholars, known collectively as the Manhattan school, are generally regarded as having vastly overstated the legal implications of the shift toward democratic governance. While it is true that there is scant evidence of a …

Stateless In The United States: Current Reality And A Future Prediction, Polly J. Price

Vanderbilt Journal of Transnational Law

Statelessness exists in the United States--a fact that should be of concern to advocates of strict immigration control as well as those who favor a more welcoming policy. The predominant reasons for statelessness include the presence of individuals who are unable to prove their nationality and the failure of their countries of origin to recognize them as citizens. Migrants with unclear nationality, already a problem for the United States, obstruct efforts to control immigration by the deportation of unauthorized aliens. These existing problems of national identity will increase exponentially if birthright citizenship in the United States is amended to exclude …

Solving "The Gravest Natural Resource Shortage You've Never Heard Of": Applying Transnational New Governance To The Phosphate Industry, Chelsae R. Johansen

Vanderbilt Journal of Transnational Law

Experts believe that global reserves of phosphates, an essential and irreplaceable ingredient in fertilizers, will only last another fifty to one hundred years. Although the consequences of a phosphate shortage include a global famine and decreased world population, the phosphate industry today operates with little concern for sustainable mining and use of the resource. Because the current system of international governance is neither raising awareness of the looming phosphate shortage nor incentivizing phosphate-industry members to act sustainably, the future of phosphates and of food security depend on a decentralized system of internal industry governance known as Transnational New Governance. This …

Proportionality In Military Force At War's Multiple Levels: Averting Civilian Casualties Vs. Safeguarding Soldiers, Ziv Bohrer, Mark Osiel

Vanderbilt Journal of Transnational Law

To what lengths may a state go to protect its soldiers in war? May it design its military operations to further that goal if this significantly increases civilian casualties? International law currently offers no clear answers. Because recent wars have seen many states prioritize soldier safety over avoiding civilian casualties, spirited debate has arisen over the legal defensibility of this practice. This debate currently focuses on an ethics code proposed by two influential Israeli thinkers and allegedly embodied in Israel's conduct of its 2008-2009 Gaza war with Hamas. This Article shows that current discussion fails to appreciate how judgments about …

Is Seasteading The High Seas A Legal Possibility? Filling The Gaps In International Sovereignty Law And The Law Of The Seas, Ryan H. Fateh

Vanderbilt Journal of Transnational Law

Seasteading--homesteading of the modern era--is a desire to develop above-water settlements in international waters known as seasteads. Once a fleeting dream, seasteading has entered the realm of possibility with the technological advancements and financial contributions of The Seasteading Institute (TSI). TSI's ultimate goal is ambitious: to establish permanent seasteads as sovereign states recognized by the United States and eventually by other members of the United Nations. Because international law promulgated by the United Nations addresses only state actors and TSI is a nonstate actor, this Note argues that international law does not prohibit the seastead communities from merely existing in …

A Behavioral Economic Approach To Nuclear Disarmament Advocacy, Alexander S. Rinn

Vanderbilt Journal of Transnational Law

Nuclear disarmament advocates have provided a strong moral voice for the total disarmament of nuclear weapons, but if they are to remain credible participants in the disarmament process, they must redouble their efforts to assist in the difficult technical and political obstacles that stand in the way of a world without nuclear weapons. This Note first outlines impediments to disarmament towards which advocates could helpfully direct their attention, such as: conventional force imbalances; developing "proliferation-safe" civil nuclear technologies; enforcing nonproliferation obligations; and verifying nuclear disarmament. Second, it explains how tools from behavioral economics and negotiation theory could inform a more …

Reverse-Rhetorical Entrapment: Naming And Shaming As A Two-Way Street, Suzanne Katzenstein

Vanderbilt Journal of Transnational Law

"Naming and shaming," the process of exposing, publicizing, and condemning human rights abuses, is one of the most important and common strategies used by human rights advocates. In an international political system where power is typically defined in terms of military strength and market size, advocacy groups draw on a mixture of moral and legal means to pressure governments to improve their human rights behavior. In general, the mere act of naming and shaming can promote human rights norms by reinforcing the shared understanding that some types of government conduct are beyond the pale.'

Naming and shaming may also work …

Cognitive Conflicts And The Making Of International Law: From Empirical Concord To Conceptual Discord In Legal Scholarship, Jean D'Aspremont

Vanderbilt Journal of Transnational Law

The international legal scholarship, in its quest for a paradigm able to apprehend international norm-generating processes qualifying as lawmaking, has been oscillating between static approaches and dynamic approaches. The former are based on the author of the norm (subjecthood) or its formal origin (pedigree) whilst the latter (e.g., participation) try to capture and explain the intricate and multidimensional fluxes between the authors of the norms and the norms themselves (impact or dynamic pedigree). International legal scholars have thus been resorting to various and diverging paradigms to make sense of international lawmaking. All of these approaches will be described in further …

Lawyers And Precedent, Harlan G. Cohen

Vanderbilt Journal of Transnational Law

What role do lawyers, as lawyers, play in the creation, development, and maintenance of the international legal order? This is an oddly underexplored question. It has become increasingly popular to look at the role various non-state actors--nongovernmental organizations (NGOs), grassroots activists, scientists, insurgent groups, among many others--play in the shaping of international law. It has also become common to talk in terms of the "disaggregated state," and of how various substate actors--central bankers, regulators, judges, and military personnel--shape international law and policy through their interactions with each other. Nor have international lawyers ever been particularly shy about their importance to …

Constraining Global Corporate Power: A Short Introduction, Peter J. Spiro

Vanderbilt Journal of Transnational Law

This Essay sets out three models of institutional constraint of global corporate power. First is private lawmaking, in which the non-state power of firms is countered by the non-state power of civil society organizations. Second are nonlegalized processes under public institutional umbrellas, in which public entities host standards-setting mechanisms. Finally, there is the prospect of fully legalized regimes, the equivalent of global regulation. These models have been emerging bottom-up rather than as part of a grand scheme. After describing the three models, this Essay considers the future of global regimes aimed at constraining corporate conduct. Distinct institutional approaches could persist. …

Optimal Asylum, Shalini B. Ray

Vanderbilt Journal of Transnational Law

The U.S. asylum system is noble but flawed. Scholars have long recognized that asylum is a "scarce" political resource, but U.S. law persists in distributing access to asylum based on an asylum seeker's ability to circumvent migration controls rather than the strength of the asylum seeker's claim for protection. To apply for asylum, an asylum seeker must either arrange to be smuggled into the United States or lie to the consulate while abroad to obtain a nonimmigrant visa. Nonimmigrant visa requirements effectively filter the pool of asylum applicants according to wealth, educational attainment, and intent not to remain in the …

220 Years Later And The Commonwealth Is Still Imposing Laws On The United States, Michael P. Geiger

Vanderbilt Journal of Transnational Law

The United States has been combating the bribery of foreign officials for 35 years through the Foreign Corrupt Practices Act (FCPA). Both domestic and international prosecutions for bribery remained almost nonexistent for decades. In recent years, the United States experienced an explosion of enforcement actions under the FCPA. Broad enforcement theories and increased prosecutorial effort have greatly expanded the scope of the FCPA. Moreover, the passage of the UK Bribery Act in 2010 has forced many U.S. organizations to face additional and conflicting antibribery regimes. Although the United States remains the world leader in prosecuting the bribery of foreign officials, …

Expanding The Vienna Convention On Consular Relations, Sarah G. Mccroskey

Vanderbilt Journal of Transnational Law

Article 37 of the Vienna Convention on Consular Relations (VCCR) aims to protect the interests of foreign national children by requiring consular notification whenever these children come into the custody of the state. Consular assistance can be invaluable for foreign national parents and children who may not understand the language or the culture and who may be subject to discrimination based on their nationality. However, the VCCR is currently inadequate in two major ways. First, the protections of Article 37 are only triggered when the child in custody is a foreign national, leaving vulnerable to unfair treatment families in which …