Law Commons^™

Geography And Justice: Why Prison Location Matters In U.S. And International Theories Of Criminal Punishment, Steven A. Koh

Vanderbilt Journal of Transnational Law

This Article is the first to analyze prison location and its relationship to U.S. and international theories of criminal punishment. Strangely, scholarly literature overlooks criminal prison designation procedures--the procedures by which a court or other institution designates the prison facility in which a recently convicted individual is to serve his or her sentence. This Article identifies this gap in the literature--the prison location omission--and fills it from three different vantage points: (1) U.S. procedural provisions governing prison designation; (2) international procedural provisions governing prison designation; and (3) the relationship between imprisonment and broader theories of criminal punishment. Through comparison of …

Civil Actions For Acts That Are Valid According To Religious Family Law But Harm Women's Rights: Legal Pluralism In Cases Of Collision Between Two Sets Of Laws, Benjamin Shmueli

Vanderbilt Journal of Transnational Law

This Article analyzes the implications of legal pluralism when religious family law conflicts with state civil tort law. Refusal to grant a get (a Jewish divorce bill) in Jewish law, divorcing a wife against her will in Muslim Shari'a law, and bigamy and polygamy in Muslim Shari'a law are practices permitted by personal-religious family law that harm human rights. This Article seeks to answer the question whether tort law should overrule family law, with the proviso that it be applied sensibly when deciding family matters; or whether the two disciplines of law are complementary, in the sense that liberal tort …

Returning Sovereignty To The People, Hallie Ludsin

Vanderbilt Journal of Transnational Law

Governments across the world regularly invoke sovereignty to demand that the international community "mind its own business" while they commit human rights abuses. They proclaim that the sovereign right to be free from international intervention in domestic affairs permits them unfettered discretion within their territory. This Article seeks to challenge those proclamations by resort to sovereignty in the people, a time-honored principle that is typically more rhetorical than substantive. Relying on classical interpretations of sovereignty, this Article infuses substance into the concept of sovereignty in the people to recognize that a government is entitled to sovereign rights only as the …

Liberalizing The Law In The Land Of The Lord: Limits To The Americanization Of Israeli Religious Jurisprudence, Andrea B. Jenkins

Vanderbilt Journal of Transnational Law

This Note presents an analysis of American and Israeli constitutional jurisprudence concerning matters of religion. Recently, there has been a shift in Israel's High Court of Justice toward implementing values of individual rights and religious pluralism. Some have analogized this shift in focus to the role played by the U.S. Supreme Court. However, fundamental differences remain between the American and Israeli approaches, stemming from divergent conceptions of national identity encapsulated in the states' respective foundational legal documents.

This Note examines the interplay of national identity and religious jurisprudence and its effect on individuals' legal rights. In doing so, it demonstrates …

International Student Athletes And Ncaa Amateurism: Setting An Equitable Standard For Eligibility After Proposal 2009-22, Zachary R. Roth

Vanderbilt Journal of Transnational Law

The United States is often called the land of opportunity. In many ways it has proven so, but this is not always the case. International student athletes are not granted equitable treatment with their American peers under National Collegiate Athletic Association (NCAA) amateurism rules. While the NCAA bylaws, through Proposal 2009-22, grant international student athletes the right to participate on professional teams, the proposal does not give the athletes the ability to truly exercise that right. Through the lens of Turkish basketball player Enes Kanter, this Note explores amendments to NCAA by laws that are necessary for the NCAA to …

Copyright Infringement Of Music: Determining Whether What Sounds Alike Is Alike, Margit Livingston, Joseph Urbinato

Vanderbilt Journal of Entertainment & Technology Law

The standard for copyright infringement is the same across different forms of expression. But musical expression poses special challenges for courts deciding infringement disputes because of its unique attributes. Tonality in Western music offers finite compositional choices that will be pleasing or satisfying to the ear. The vast storehouse of existing public domain music means that many of those choices have been exhausted. Although independent creation negates plagiarism, the inevitable similarity among musical pieces within the same genre leaves courts in a quandary as to whether defendant composers infringed earlier copyrighted works or simply found their own way to a …

Man Versus Machine Review: The Showdown Between Hordes Of Discovery Lawyers And A Computer-Utilizing Predictive-Coding Technology, Nicholas Barry

Vanderbilt Journal of Entertainment & Technology Law

The discovery process is regularly capturing millions of pages of documents. Electronic storage is making storing documents cheaper and easier. When litigation begins, however, sorting through this massive amount of electronically stored information is costly and time intensive. Keyword searches are a start to managing the growing amount of electronic documents, but the discovery process is still falling behind in efficiency. Predictive coding could change all that.

Predictive coding is capable of solving the time-intensive nature (and resultant growing cost) of processing discovery documents. Predictive coding is faster, cheaper, and more accurate than traditional linear document review, the current "gold …

Buy My Vote: Online Reviews For Sale, Kendall L. Short

Vanderbilt Journal of Entertainment & Technology Law

The Internet has granted consumers access to a wealth of information to use in researching products and services. A substantial portion of this information consists of online consumer reviews, which hold great influence over consumers' purchasing decisions due to their perceived honesty and independence from the company. The problem with relying on these reviews, however, is that real consumers may not be the authors; instead, companies often hire writers to fabricate reviews, known as "opinion spam," which can either be positive for the hiring company or negative toward an innocent competitor. Because these fake reviews are difficult to detect, both …

Access, Progress, And Fairness:Rethinking Exclusivity In Copyright, Nicolas Suzor

Vanderbilt Journal of Entertainment & Technology Law

This Article provides a detailed critique of the incentives-access binary in copyright discourse. Mainstream copyright theory generally accepts that copyright is a balance between providing incentives to authors to invest in the production of cultural works and enhancing the dissemination of those works to the public. This Article argues that dominant copyright theory obscures the possibility of developing a model of copyright that is able to support authors without necessarily limiting access to creative works. The abundance that the Internet allows suggests that increasing access to cultural works to enhance learning, sharing, and creative play should be a fundamental goal …

Decertifying Players Unions: Lessons From The Nfl And Nba Lockouts Of 2011, Nathaniel Grow

Vanderbilt Journal of Entertainment & Technology Law

This Article analyzes the National Football League (NFL) and National Basketball Association (NBA) lockouts of 2011, focusing in particular on the role union dissolution played in each work stoppage. Although the existing academic literature had generally concluded that players unions in the four major US professional sports leagues were unlikely to disband during a labor dispute, the unions in both the NFL and NBA elected to dissolve in response to lockouts by ownership. This Article provides an explanation for why the prior literature misjudged the role that union dissolution would play during the 2011 work stoppages. It argues that previous …

The Social Network And The Crowdfund Act: Zuckerberg, Saverin, And Venture Capitalists' Dilution Of The Crowd, John S. (Jack) Wroldsen

Vanderbilt Journal of Entertainment & Technology Law

By virtue of Title III of the JOBS Act, signed into law on April 5, 2012, crowdfunding could become a powerful, even revolutionary, force to finance start-up companies. It democratizes entrepreneurs' access to seed capital and converts the masses of Internet users into potential retail venture capitalists. Many have cautioned, though, that crowdfunding poses serious investment risks of start-up companies failing, committing fraud, and being mismanaged. Accordingly, the JOBS Act includes numerous disclosure obligations designed to mitigate such downside risks.

But what has been overlooked, and what this Article analyzes from a venture capitalist perspective, is that even if a …

The Disappearing Fourth Wall: Law, Ethics, And Experiential Theatre, Mary Lafrance

Vanderbilt Journal of Entertainment & Technology Law

The cutting edge of experiential theatre blurs the lines between performer and audience. Both the performer and the audience are vulnerable. Audiences may be subject to assaultive or disturbing behavior or images. The performance may take place in an unconventional venue that poses safety hazards. A single audience member may be alone with a performer, who may engage in provocative or shocking behavior, including verbal abuse or touching. The performer may invite similar conduct from the participant. Typically, the participant does not know in advance what will take place and does not sign a waiver. While the performer has a …

Tax Incentives For Innovation In A Modern Ip Ecosystem, Joshua Chao

Vanderbilt Journal of Entertainment & Technology Law

Technological innovation is a long-recognized catalyst for economic growth in the United States, and its promotion is an important feature of national economic policy, as evidenced by the presence of various tax incentives for innovation in the US Internal Revenue Code. Tax incentives are an important means by which governments can deliver subsidies to promote such innovation. To be effective, however, any system of tax incentives must be tailored for current economic conditions and competitive landscapes. In the current ecosystem of innovation in the United States, this means that, at the very least, the incentives for innovation in the US …

Pay-To-Delay Settlements: The Circuit-Splitting Headache Plaguing Big Pharma, Shannon U. Han

Vanderbilt Journal of Entertainment & Technology Law

At its passage, the Hatch-Waxman Act was hailed as a much-needed step in making generic drugs more readily available to consumers, easing some of the heavy burdens placed on consumers by the necessary, but flawed, patent system that essentially granted brand-name pharmaceutical manufacturers a de facto economic monopoly over their drugs. One consequence of the Act, unforeseen by legislators and regulators, was the creation of a perverse incentive on behalf of pharmaceutical patent holders to pay alleged patent infringers substantial cash payments to delay entry into the particular drug market. These pay-to-delay settlements--or reverse-payment settlements--have been at the center of …

Restituting Nazi-Looted Art: Domestic, Legislative, And Binding Intervention To Balance The Interests Of Victims And Museums, Katharine N. Skinner

Vanderbilt Journal of Entertainment & Technology Law

The Nazis engaged in widespread art looting from Holocaust victims, either taking the artwork outright or using legal formalities to effect a transfer of title under duress. Years later, US museums acquired some of these pieces on a good-faith basis. Now, however, they face lawsuits by the heirs of Holocaust victims, who seek to have the museums return the artwork. Though good title cannot pass to the owner of stolen property under US law, unfavorable statutes of limitations, high financial hurdles, or discovery problems, among other obstacles, bar many of these claimants from seeking recovery. Though some museums have amicably …

Will Professor Nimmer's Change Of Heart On File Sharing Matter?, Rick Sanders

Vanderbilt Journal of Entertainment & Technology Law

In a significant reversal, the leading copyright treatise, Nimmer on Copyright, has changed its position on the controversial subject of whether merely making a copyrighted work available for distribution violates the distribution right--an issue most significant in the context of peer-to-peer file sharing. Nimmer on Copyright had previously concluded that the distribution right did not extend so far. It now embraces whole-heartedly the "making available" theory of copyright infringement. Courts and practitioners should not follow suit. First, the treatise relies heavily on legislative materials that predate the actual passage of the current Copyright Act. Second, it argues that the current …

The Derivative Right,Or Why Copyright Law Protects Foxes Better Than Hedgehogs, Daniel Gervais Ph.D.

Vanderbilt Journal of Entertainment & Technology Law

The derivative right is at the very core of copyright theory. What can and cannot be reused to create a new work impacts freedom of expression but also impacts the value of the markets for works and their various "derivatives." The derivative right includes forms of derivation and adaptation, such as making a movie from a novel or translating a book. It also covers what this Article refers to as penumbral derivatives, which the US Copyright Act captures using the phrase "based upon" with respect to preexisting works. This leads to indeterminacy about the scope of the derivative right, which …

Wipo And The American Constitution: Thoughts On A New Treaty Relating To Actors And Musicians, Hannibal Travis Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

The World Intellectual Property Organization (WIPO) is seeking to reform U.S. copyright law. The WIPO Treaty on Audiovisual Performances (AV Treaty) would restrict the communication of actors' and musicians' performances without authorization. The treaty would probably make it illegal to display or show clips of performances, or make a movie or YouTube video by transforming or adapting other actors' or musicians' performances, particularly when the original credits and copyright information are dropped. This Article analyzes key provisions of the AV Treaty to ascertain whether they change US law, or merely globalize existing US doctrines. This Article describes the threat posed …

Guantanamo's Greatest Hits: The Semiotics Of Sound And The Protection Of Performer Rights Under The Lanham Act, John Tehranian

Vanderbilt Journal of Entertainment & Technology Law

As Bruce Springsteen and Ronald Reagan, Jackson Brown and John McCain, and Tom Morello and Paul Ryan can attest, the exploitation of creative works for political or commercial purposes that run contrary to artists' ideals can stir passions and trigger lawsuits. Yet for performers who are not authors of the exploited works, there is little meaningful legal relief provided by the federal Copyright Act. Instead, such performers--from featured singers and dancers to actors and other personalities known for their distinctive traits--have leaned on alternative theories for recovery, thereby raising the specter of liability outside of copyright law for such unwelcome …

Music And Emotion In Victim-Impact Evidence, Emily C. Green

Vanderbilt Journal of Entertainment & Technology Law

Aristotle famously said that the "law is reason free from passion," and nothing arouses passion better than music. Thus, when victim-impact evidence evolved from simple oral statements to include photographs, video footage, and musical clips, scholars and judges alike expressed concern that music might be too emotional and may make it difficult for the jury to make a rational decision based on logic rather than feeling. Recent scholarship in the field of law and emotion, however, notes that emotions are inevitable in law and further suggests that these emotions can be used constructively in the legal system. Thus, musically induced …

From Berne To Beijing: A Critical Perspective, David Lange

Vanderbilt Journal of Entertainment & Technology Law

Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law's Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange's preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated …

Shareholder Litigation In Mergers And Acquisitions, Randall S. Thomas, C. N.V. Krishnan, Ronald W. Masulis

Vanderbilt Law School Faculty Publications

Using hand-collected data, we examine the targeting of shareholder class action lawsuits in merger & acquisition (M & A) transactions, and the associations of these lawsuits with offer completion rates and takeover premia. We find that M & A offers subject to shareholder lawsuits are completed at a significantly lower rate than offers not subject to litigation, after controlling for selection bias, different judicial standards, major offer characteristics, M & A financial and legal advisor reputations as well as industry and year fixed effects. M & A offers subject to shareholder lawsuits have significantly higher takeover premia in completed deals, …

Unintended Consequences: The Impact Of The Court's Recent Cases On Structural Ineffective Assistance Of Counsel Claims, Lauren D. Sudeall

Vanderbilt Law School Faculty Publications

Advocates seeking indigent defense reform have often relied on civil litigation to prospectively enforce the Sixth Amendment right to counsel and to attack structural deficiencies of indigent defense systems-such as under- funding-that are likely to lead to system-wide ineffective assistance. Although the United States Supreme Court has addressed myriad aspects of postconviction ineffective assistance of counsel claims made in the criminal context, particularly in the last decade or so,' many of these cases have had little direct bearing on the way in which advocates have attempted to enforce the Sixth Amendment in the civil context. The Supreme Court has never …

What’S To Know? Puzzles In The Literature On The Value Of Statistical Life, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Notwithstanding the general acceptance of the value of statistical life (VSL) estimates for policy assessment purposes, several important unresolved issues remain. First, the results from revealed preference studies are systematically higher than those from stated preference studies, potentially limiting the usefulness of stated preference studies in generalizing the VSL estimates to different populations and kinds of risks. Second, extrapolating the results of meta-analyses to project the VSL for different population groups requires that such generalization be reflective of the underlying economic content of what average VSL estimates reflect. Third, government agencies within and across countries place differing emphasis on types …

Do Vcs Use Inside Rounds To Dilute Founders? Some Evidence From Silicon Valley, Brian Broughman, Jesse Fried

Vanderbilt Law School Faculty Publications

In the bank-borrower setting, a firm's existing lender may exploit its positional advantage to extract rents from the firm in subsequent financings. Analogously, a startup's existing venture capital investors (VCs) may dilute the founder through a follow-on financing from these same VCs (an “inside” round) at an artificially low valuation. Using a hand-collected dataset of Silicon Valley startup firms, we find little evidence that VCs use inside rounds to dilute founders. Instead, our findings suggest that inside rounds are generally used as “backstop financing” for startups that cannot attract new money, and these rounds are conducted at relatively high valuations …

The Incredible Shrinking Confrontation Clause, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

Sharp turns in the Supreme Court's recent Confrontation Clause jurisprudence have left scholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded as the Court's decisions in Davis v. Washington and Bryant v. Michigan revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right.

Recent scholarship strives to reanimate the jurisprudence by expanding the doctrinal definition of "testimonial" statements - the sole form of evidence Associate Professor, William & Mary Law School. I would like …

Interpreting Regulations, Kevin M. Stack

Vanderbilt Law School Faculty Publications

The age of statutes has given way to an era of regulations, but our jurisprudence has fallen behind. Despite the centrality of regulations to law, courts have no intelligible approach to regulatory interpretation. The neglect of regulatory interpretation is not only a shortcoming in interpretive theory but also a practical problem for administrative law. Canonical doctrines of administrative law ” Chevron, Seminole Rock/Auer, and Accardi ” involve interpreting regulations, and yet courts lack a consistent approach. This Article develops a method for interpreting regulations and, more generally, situates regulatory interpretation within debates over legal interpretation. It argues that a purposive …

What Is The Essential Fourth Amendment?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen Schulhofer provides a strong, popularized brief for interpreting the Fourth Amendment as a command that judicial review precede all non-exigent police investigative actions that are more than minimally intrusive. This review points out a few places where Schulhofer may push the envelope too far or not far enough, but concludes that More Essential Than Ever is a welcome reminder for scholars and the public at large that the Fourth Amendment is a fundamental bulwark of constitutional jurisprudence and deserves more respect than the Supreme Court has given …

Can The States Keep Secrets From The Federal Government?, Robert A. Mikos

Vanderbilt Law School Faculty Publications

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer information …

Environmental Law And Fossil Fuels: Barriers To Renewable Energy, Uma Outka

Vanderbilt Law Review

Renewable energy is gaining momentum around the globe, but the United States has only just begun to change its energy trajectory away from fossil fuels. Today, only about 10% of electricity in the United States is generated from renewable energy, and most of that comes from hydroelectric power plants that have been operating for many years. The U.S. Energy Information Administration projects 30% of new capacity over the next twenty years will utilize renewable resources, without significant changes in U.S. energy policy, but at that pace renewable energy will still account for only 16% of generated electricity. These prospects stand …