Law Commons^™

Democracy's Distrust: Contested Values And The Decline Of Expertise, Suzanna Sherry

Vanderbilt Law School Faculty Publications

This response to Professor Dan Kahan’s recent Harvard Foreword, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, argues that while Kahan accurately describes the contemporary “neutrality crisis” and the consequent popular mistrust of the Supreme Court, he has mistaken its cause and thus proposes the wrong solution. Kahan attributes the crisis to “motivated cognition,” and asks judges to adopt techniques that rely on and foster an underlying popular agreement about cultural values. This response essay instead acknowledges the existence and inevitability of contested values in our constitutional democracy. The essay contends that the real causes of the neutrality …

Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry

Vanderbilt Law School Faculty Publications

This essay was written for “Supreme Mistakes: Exploring the Most Maligned Decisions in Supreme Court History.” A symposium on the worst Supreme Court decision of all time risks becoming an exercise best described by Claude Rains’s memorable line in Casablanca: “Round up the usual suspects.” Two things saved this symposium from that fate. First, each of the usual suspects was appointed defense counsel, which made things more interesting. Second, a new face found its way into the line-up: Erie Railroad v. Tompkins. My goal in this essay is to explain why Erie is in fact guiltier than all of the …

Rethinking Novelty In Patent Law, Sean B. Seymore

Vanderbilt Law School Faculty Publications

The novelty requirement seeks to ensure that a patent will not issue if the public already possesses the invention. Although gauging possession is usually straightforward for simple inventions, it can be difficult for those in complex fields like biotechnology, chemistry, and pharmaceuticals. For example, if a drug company seeks to patent a promising molecule that was disclosed but never physically made in the prior art, the key possession question is whether a person having ordinary skill in the art (PHOSITA) could have made it at the time of the prior disclosure. Put differently, could the PHOSITA rely on then-existing knowledge …

The Shaky Political Economy Foundation Of A National Renewable Electricity Requirement, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article argues that a national renewable portfolio standard (RPS) for electric power is not likely to advance its purported goals, nor is it likely to be adopted by Congress in its present proposed form. For one, a national RPS would have geographically disproportionate costs - those costs would be focused on a few, mostly natural resource-poor states, whereas the benefits of job growth and technological adoption in infant industries will be elsewhere. Second, the ability of firms to use operational flexibility regarding their nonrenewable fuel mix to substitute other nonrenewable energy sources for traditional fossil fuels undermines the purported …

To Transfer Or Not To Transfer: Identifying And Protecting Relevant Human Rights Interests In Non-Refoulement, Vijay Padmanabhan

Vanderbilt Law School Faculty Publications

Human rights law imposes upon States an absolute duty not to transfer an individual to another State where there are substantial grounds for believing he or she will be tortured or subjected to cruel, inhuman or degrading treatment. This protection, called non-refoulement, emanates from a theory of human rights that recognizes rights fulfillment requires States to protect those within their jurisdiction from rights violations perpetrated by third parties, including other States. Generally human rights law recognizes that resource constraints and/or competing rights restrict protection duties. But such limitations have not been recognized in the non-refoulement context with limited theorization as …

Organizational Apologies: Bp As A Case Study, Erin O'Connor

Vanderbilt Law School Faculty Publications

This Article examines the conduct of BP executives in the weeks following the Deepwater Horizon oil spill to illuminate the use of apology by organizations. After briefly describing the value of apology and its nuances from an evolutionary perspective, the Article describes how apology and other responsibility-accepting behaviors can be mobilized by organizations to avoid the costs of its apparently careless conduct. In particular, organizations can designate particular agents as spokespersons who possess the ability to portray a sense of sincerity and regret. Moreover, reconciliation by ingroup members appears to be more common than is reconciliation by outgroup members, likely …

Outsourcing, Modularity, And The Theory Of The Firm, Erin O'Connor, Gregg Kirchhoefer, Margaret M. Blair

Vanderbilt Law School Faculty Publications

Firms have increasingly moved productive activities from within to outside the firm through outsourcing arrangements. According to some estimates, the value of outsourcing contracts has been nearly 100 billion dollars per year since 2004. Firm outsourcing happens for a number of reasons, including to save labor costs, capture the benefits of regulatory arbitrage, and take advantage of economies of scale in the provision of firm needs. We review a number of outsourcing contracts for evidence that contract techniques are used to help modularize the relationship between the firm and its service provider. Consistent with what modularity theory might predict, some …

The Law Of War In The War Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

The struggle to define the contours of the legal regime and to correctly communicate those expectations to the broader audience of civilians is a recurring problem that is integrally related to the current evolution of warfare. Shaping the expectations and perceptions of the political elites who control the contours of the conflict is perhaps equally vital. The paradox is that as the legal regime applicable to the conduct of hostilities has matured over the last century, the legal dimension of conflict has at times overshadowed the armed struggle between adversaries. As a result, the overall military mission will often be …

Constitutional Adjudication In Japan: Context, Structures, And Values, John O. Haley

Vanderbilt Law School Faculty Publications

Judges in Japan share the prevailing communitarian orientation of their society, an orientation that rejects Manichean choices and moral or "scientific" absolutes, but instead relies on their collective and individual perceptions of community values, including the global community, shared by peers. They also, I believe, accept an unstated premise that legislative and administrative decisions reflect a consensus among the participants--not a simple majority. The issue remains as to who participates--who sits at the table--but the political and administrative processes do not routinely require merely fifty-one out of a hundred votes. As a consequence, judges are cautiously conservative. They adhere to …

Putting The Shock Value In First Amendment Jurisprudence: When Freedom For The Citizen-Journalist Watchdog Trumps The Right Of Informational Privacy On The Internet, Clay Calvert, Mirelis Torres

Vanderbilt Journal of Entertainment & Technology Law

This Article, which takes the July 2010 ruling by the Fourth Circuit in Ostergren v. Cuccinelli as a point of departure, explores the growing tension between the First Amendment right of Free Speech and the nascent right to online informational privacy. The Article addresses the "shock value" in First Amendment jurisprudence, stretching from Cohen v. California and Texas v. Johnson through the recent ruling in Ostergren. The Article also examines the traditional watchdog function of the press increasingly performed on the Internet by so-called citizen-journalists akin to Betty Ostergren. The Article concludes that while the Fourth Circuit's decision in Ostergren …

Electronic Medical Records: A Prescription For Increased Medical Malpractice Liability?, Blake Carter

Vanderbilt Journal of Entertainment & Technology Law

The cost and quality of health care is and most likely will continue to be one of the most important issues that the United States faces in the coming decade. Although no powerful antidote exists to cure this industry of all of its ailments, one potential suggestion to treat some of the symptoms is the introduction of electronic medical records (EMRs).

Members of the medical community, patients, and even politicians all agree that EMRs offer promising opportunities to improve the overall quality of health care. However, lost in the discussion of these opportunities, is a consideration of the potential side …

Keep America Exceptional! Against Adopting Japanese And European-Style Criminalization Of Contributory Copyright Infringement, Salil K. Mehra

Vanderbilt Journal of Entertainment & Technology Law

This brief Article, written in connection with a Symposium hosted by the Vanderbilt Journal of Entertainment and Technology Law, addresses nascent criminal enforcement against contributory copyright infringement in connection with P2P file sharing. Using Judge Posner's analysis in the Aimster case as a lens, it discusses recent cases in Japan and Sweden. This Article contends that criminalization involves an inherent uncertainty involving an innovator's knowledge of, and intent for, the future uses of the platform by others. Despite the difficulty of this task, since Japan and the E.U. have seen criminal prosecutions brought against contributory infringers, it should not evoke …

What's In A Name?: Predictably Regulating Cyberfraud To Protect The Democratic Political Process, Whitney C. Boshers

Vanderbilt Journal of Entertainment & Technology Law

In recent elections, political candidates have capitalized on the Internet as a central organizing resource. As a result of the low-cost, high-reward nature of campaign websites, some candidates have begun to register Web addresses--or domains--in opponents' names in order to disrupt the democratic political process. Engaging in a practice known as cyberfraud, these individuals register for domains containing the candidate's name, such as 'firstnamelastname.com." Then, instead of finding themselves on the candidate's official campaign website, voters access a website operated by the candidate's opponent that contains misleading or outright false information. Unfortunately, most political candidates have little recourse for such …

Some Thoughts On The Evolution Of Executive Equity Compensation, Herwig Schlunk

Vanderbilt Law Review En Banc

No abstract provided.

The Mercer Girls Guide To Immigration, Jennifer M. Chancon

Vanderbilt Law Review En Banc

No abstract provided.

Antitrust Merger Efficiencies In The Shadow Of The Law, Daniel D. Sokol, James A. Fishkin

Vanderbilt Law Review En Banc

No abstract provided.

Torture In The Eyes Of The Beholder, Mary-Hunter M. Mcdonnell, Loran F. Nordgren, George Loewenstein

Vanderbilt Journal of Transnational Law

This Article draws upon recent social psychological research to demonstrate the psychological difficulty of distinguishing between torture and enhanced interrogation. We critique the accuracy of evaluations made under the current torture standard using two constructs--reliability and validity--that are employed in the social sciences to assess the quality of a construct or metric. We argue that evaluations of interrogation tactics using the current standard are both unreliable and invalid. We first argue that the torture standard is unreliable because of the marked variation in the manner in which different jurisdictions interpret and employ it. Next, we draw on recent social psychological …

A Club Of Incumbents? The African Union And Coups D'Etat, Eki Y. Omorogbe

Vanderbilt Journal of Transnational Law

This Article considers the response of the Organization for African Unity (the OAU, founded in 1963) and its successor, the African Union (the AU, which began operating in 2003) to coups d'etat, since 1997. The Article addresses these organizations' policies concerning unconstitutional changes of government, as well as the application of these policies. In considering these issues, the Article examines the response of the AU to the coups in Togo (2005), Mauritania (2005 and 2008), Guinea (2008), Madagascar (2009), and Niger (2010). In each case, the AU was unwilling to recognize the government that came to power through coup, even …

Rethinking Jurisdictional Discovery Under The Hague Evidence Convention, Kathleen B. Gilchrist

Vanderbilt Journal of Transnational Law

When a federal court in the United States compels the discovery of information located abroad to determine whether it has jurisdiction over the defendant, the court can apply the Federal Rules of Civil Procedure or the Hague Evidence Convention. This Note argues that the approach taken by most courts--applying the balancing test formulated by the Supreme Court in Societe Nationale Industrielle Aerospatiale v. U.S. District Court and favoring application of the Federal Rules--is misguided. Courts should apply the Evidence Convention more often in jurisdictional discovery disputes. They can do so under the existing legal framework with one of three holdings: …

The United States--El Salvador Extradition Treaty, Kelly P. Lineberger

Vanderbilt Journal of Transnational Law

This Note discusses the dramatic proliferation of the Mara Salvatrucha (MS-13) over the last two decades, primarily focusing on the efforts of the United States and El Salvador to bring the notorious MS-13 to justice. The United States' deportation policy in the mid-1990s and its impact on the presence of MS-13 in El Salvador and the United States set the backdrop for an analysis of the current weapons available to combat the gang's transnational threat. As the international implications of MS-13's actions expanded in the late 1990s, the United States and El Salvador began to charter a number of bilateral …

From Ideology To Pragmatism: China's Position On Humanitarian Intervention In The Post-Cold War Era, Jonathan E. Davis

Vanderbilt Journal of Transnational Law

This Article fills a gap in the literature by examining in depth China's state practice and official pronouncements in respect of nine post-Cold War cases typically cited by academics when considering the international legal status of humanitarian intervention. The majority of today's commentary and scholarship holds that the People's Republic of China's position on sovereignty and intervention remains inflexible and absolutist, much as it was for the PRC's first four decades. This Article contends that this view is outdated and overly simplistic: while China continues to champion a strong conception of state sovereignty in interstate relations, it has signaled a …

The Threat Of Force As An Action In Self-Defense Under International Law, James A. Green, Francis Grimal

Vanderbilt Journal of Transnational Law

Self-defense is a universally accepted exception to the prohibition of the use of force in international law, and it has been subjected to careful academic scrutiny. The prohibition of the threat of force, although equally important in terms of its normative status to the prohibition on use, has attracted far less academic commentary to date. This Article examines the relationship between the two prohibitions--of the use and threat of force--and considers the largely unexplored possibility of states utilizing a threat of force as a means of lawful defensive response: self-defense in the form of a threat. The status of this …

Elections And Government Formation In Iraq: An Analysis Of The Judiciary's Role, Charles P. Trumbull Iv, Julie B. Martin

Vanderbilt Journal of Transnational Law

In 2005, the people of Iraq ratified a permanent Constitution, a significant milestone in the journey from Saddam Hussein's authoritarian rule to democratic governance. Among the Constitution's fundamental guarantees are the separation and balance of powers, the selection of Parliament through regular and periodic popular election, and an independent judiciary empowered as the authority on constitutional interpretation. Iraq's commitment to democracy and the Constitution was put to the test five years later with the first parliamentary election under the new Constitution. The run-up to the elections was marred by political disputes, violence, and legal challenges, as Iraqis argued over controversial …

The Convention On Cluster Munitions: An Incomplete Solution To The Cluster Munition Problem, Daniel J. Raccuia

Vanderbilt Journal of Transnational Law

Cluster munitions have been a significant weapon in the world's arsenals for the last half-century, but their use has drawn sharp criticism for its impact on civilian populations. The weapons function by releasing dozens of small "bomblets" over a wide area. For years the debate over these weapons was focused on whether they violated the norms of international humanitarian law, but the 2008 Convention on Cluster Munitions has altered the discussion, banning the weapons outright. However, the major states that use the weapons, including the United States, have not joined the Convention, and the use of cluster munitions continues. This …

Hedge Fund Regulation Via Basel Iii, Wulf A. Kaal

Vanderbilt Journal of Transnational Law

This Article is a rejoinder to a recent comment by Professor Romano on an earlier paper I coauthored with Christian Kirchner. Professor Romano suggests regulatory arbitrage, rather than the targeted regulation of bank lending to hedge funds under Basel II, as a hedge against systemic failure. I contend that it was not harmonization through Basel II but rather the profitability of certain assets and business strategies that caused banks to hold similar assets and engage in similar strategies. In particular, I find that the increasing role of hedge funds in the credit derivatives market, in combination with the market's recent …

A New Standard For Evaluating Claims Of Economic Persecution Under The 1951 Convention Relating To The Status Of Refugees, Lauren M. Ramos

Vanderbilt Journal of Transnational Law

The United Nations Convention and Protocol Relating to the Status of Refugees define the requirements for qualification as a "refugee" and the protection that should be afforded to qualifying persons. Satisfying the Convention definition of refugee usually qualifies a person for asylum; thus, interpretation of its requirements can determine whether an alien is able to escape alleged persecution in his or her country of origin. Currently, 147 countries are parties to the Convention, the Protocol, or both, including the United States. In order to qualify for refugee status, an asylum seeker must prove a well-founded fear of persecution. However, the …

Building A Latin American Coalition On Forests: Negotiation Barriers And Opportunities, Maria Banda, John Oppermann

Vanderbilt Journal of Transnational Law

This Article looks at how these difficulties might be remedied to allow Latin America to lead the world to a robust anti-deforestation agreement. Part I provides a concise background on the REDD talks at the 2009 Copenhagen Climate Conference, which serves as a useful illustration of the substantive and procedural challenges in the ongoing deforestation negotiations. It identifies the main stakeholders at the climate talks and the camps in which national delegations organized themselves at Copenhagen. It then reviews the major substantive roadblocks in the REDD negotiations and identifies a series of analytical, ideological, and structural barriers that impeded significant …

The Double-Helix Double-Edged Sword: Comparing Dna Retention Policies Of The United States And The United Kingdom, Erica S. Deray

Vanderbilt Journal of Transnational Law

Forensic scientists have used DNA profiling technologies to link suspects to crimes since Alec Jeffreys first proposed the idea in the 1970s. Recognizing the potential for using DNA databases to solve crimes and to prevent future crimes, England and Wales attempted to greatly expand its DNA database by allowing for the collection and indefinite retention of DNA profiles from arrestees. The European Court of Human Rights, however, issued a ruling in 2008 in the case of S. & Marper v. United Kingdom, advising the United Kingdom to restrict use of DNA profiles from arrestees and to establish time frames for …

Ambivalence And Activism: Employment Discrimination In China, Timothy Webster

Vanderbilt Journal of Transnational Law

Chinese courts have not vigorously enforced many human rights, but a recent string of employment discrimination lawsuits suggests that, given the appropriate conditions, advocacy strategies, and rights at issue, victims can vindicate constitutional and statutory rights to equality in court. Specifically, carriers of the hepatitis B virus (HBV) have used the 2007 Employment Promotion Law to ground legal challenges against employers who discriminate against them in the hiring process. Plaintiffs' relatively high success rate suggests official support for making one prevalent form of discrimination illegal. Central to these lawsuits is a broad network of lawyers, activists, and scholars who actively …

The "Common-Law Regime" Of Foreign Sovereign Immunity: The Actual Possession Rule In Admiralty, David J. Bederman

Vanderbilt Journal of Transnational Law

It has been a long-standing rule in admiralty that in order for a foreign sovereign to assert immunity in U.S. courts, the res that is the object of the maritime claim must be in the actual possession of the foreign state at the time the case is brought. Inasmuch as Samantar recognized the existence of a "common-law regime" that preexisted the Foreign Sovereign Immunities Act (FSIA), this Article examines whether the actual possession rule remains in force today. The FSIA codified the actual possession rule in its provisions for the handling of admiralty claims against foreign sovereigns, but this has …