Law Commons^™

Climbing Mount Mitigation: A Proposal For Legislative Suspension Of Climate Change "Mitigation Litigation", J.B. Ruhl

Vanderbilt Law School Faculty Publications

This Article focuses on a different but related fundamental policy design question: How should federal agencies implement existing statutory authorities to contribute to a coherent national climate change policy? One might ask why we should be concerned with how existing laws can be employed given reasonable expectations that the Obama Administration and Congress are poised to make gains on new federal initiatives. For several reasons, however, it is unlikely that even bold new federal legislation-a comprehensive carbon tax on all fossil fuel consumption or a cap-and-trade program broadly encompassing major emission sources-will obviate the need to solve the puzzle of …

Reconsidering Reprisals, Michael A. Newton

Vanderbilt Law School Faculty Publications

The prohibition on the use of reprisals is widely regarded as one of the most sacrosanct statements of the jus in bello applicable to the conduct of modern hostilities. The textual formulations are stark and subject to no derogations. Supporters of the bright line ban describe it as a vital bulwark against barbarity. In the words of the International Committee of the Red Cross, the prohibition is absolute, despite the fact that the declarations of key states indicate residual ambiguity over the scope of permissible reprisals, particularly in the context of non-international armed conflicts. Reprisals are a recurring feature of …

The Consequences Of Congress's Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Vanderbilt Law Review

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …

Statewide Capital Punishment: The Case For Eliminating Counties' Role In The Death Penalty, Adam M. Gershowitz

Vanderbilt Law Review

The State of Texas is known as the capital of capital punishment.' But is that reputation deserved? In a way, yes. Texas sends more people to death row than any other state, and it executes them far faster. However, in another way, it is incorrect to suggest that "the State" of Texas is a prolific user of capital punishment. Death penalty cases are prosecuted by counties, not the state, and a majority of Texas's counties have never imposed the death penalty. In fact, only a handful of Texas's 254 counties regularly seek the death penalty. Many other states have a …

Preempting Discrimination: Lessons From The Genetic Information Nondiscrimination Act, Jessica L. Roberts

Vanderbilt Law Review

The Genetic Information Nondiscrimination Act ("GINA'), enacted in May 2008, protects individuals against discrimination by insurance companies and employers on the basis of genetic information. GINA is not only the first civil rights law of the new millennium, but it is also the first preemptive antidiscrimination statute in American history. Traditionally, Congress has passed retrospective antidiscrimination legislation, reacting to existing discriminatory regimes. However, little evidence indicates that genetic-information discrimination is currently taking place on a significant scale. Thus, unlike the laws of the twentieth century, GINA attempts to eliminate a new brand of discrimination before it takes hold. This Article …

Order At The End Of Life: Establishing A Clear And Fair Mechanism For The Resolution Of Futility Disputes, Ashley Bassel

Vanderbilt Law Review

On January 22, 2008, Ruben Betancourt was admitted to Trinitas Regional Medical Center in New Jersey for surgery for malignant thymoma, a cancer of the thymus gland (a small organ underneath the breastbone).' Following surgery, the patient developed brain damage due to lack of oxygen and, as a result, lapsed into unconsciousness. For the next five months, Mr. Betancourt was admitted to various medical facilities and readmitted finally to Trinitas in July 2008 for renal failure. For six more months, the unconscious patient remained in the hospital on an artificial ventilator, receiving renal dialysis and nutrition through tube feeding.

The …

Bringing It All Back Home: Establishing A Coherent Constitutional Framework For The Re-Regulation Of Homeschooling, Timothy B. Waddell

Vanderbilt Law Review

Bobby and Esther Riddle, the Supreme Court of West Virginia conceded, "did an excellent job" teaching their children, Jill and Tim- possibly better than the public schools could do."' Like many fundamentalist parents, the Riddles believed the Bible required them personally to teach their children, protect them from heresy and worldly influence, and resist government intrusions that could imperil their eternal salvation. Moreover, they believed they had constitutional rights to do so. Jill and Tim Riddle studied the same subjects as public schoolchildren, but their studies were interwoven with religious lessons based upon their parents' idiosyncratic view of Christian doctrine. …

The Behavioral Wedge: Reducing Greenhouse Gas By Individuals And Households, Michael P. Vandenbergh, Jonathan Gilligan, Gerald T. Gardner, Paul C. Stern

Vanderbilt Law School Faculty Publications

When nations fail to agree, can individual citizens make a difference? The third of our post-Copenhagen features is by Jonathan Gilligan, Thomas Dietz, Gerald T. Gardner , Paul C. Stern, and Michael P. Vandenbergh. They look at the effects that voluntary actions by individuals can have, and at the policies that can best encourage such actions.

The Teaching Function Of Patents, Sean B. Seymore

Vanderbilt Law School Faculty Publications

In theory, a patent serves the public good because the disclosure of the invention brings new ideas and technologies to the public and induces inventive activity. But while these roles inherently depend on the ability of the patent to disseminate technical knowledge, the teaching function of patents has received very little attention. Indeed, when the document publishes, it can serve as a form of technical literature. Because patents can, at times, communicate knowledge as well as, or better than, other information sources, patents could become a competitive source of technical information. Presently, however, patents are rarely viewed in this manner. …

Climate Change, Dead Zones, And Massive Problems In The Administrative State: A Guide For Whittling Away, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best …

Betrayal And Exploitation In Contract Law: A Comment On Breach Is For Suckers, Steven W. Feldman

Vanderbilt Law Review

No abstract provided.

With Bases Loaded, Alito Hits A Home Run, Kristin A. Collins

Vanderbilt Law Review

No abstract provided.

Common Answers For Class Certification, Richard A. Nagareda

Vanderbilt Law Review

No abstract provided.

Relative Difference And The Dean Method: A Comment On Getting The Math Right, Mark Bell

Vanderbilt Law Review En Banc

No abstract provided.

Reforming The Legal Ethics Curriculum: A Comment On Edward Rubin's What's Wrong With Langdell's Method And What To Do About It, Lauren Solberg

Vanderbilt Law Review En Banc

No abstract provided.

Defending A Social Learning Explanation: A Comment On The Origins Of Shared Intuitions Of Justice, Christopher B. Jaeger

Vanderbilt Law Review En Banc

No abstract provided.

Adaptive Management In The Courts, J.B. Ruhl, Robert Fischman

Vanderbilt Law School Faculty Publications

Adaptive management has become the tonic of natural resources policy. With its core idea of "learning while doing," adaptive management has infused the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, it is no exaggeration to suggest that these days adaptive management is natural resources policy. But is it working? Does appending "adaptive" in front of "management" somehow make natural resources policy, which has always been about balancing competing claims to nature’s bounty, something more and better? Many legal and policy scholars have asked that question, with …

Defending A Social Learning Explanation: A Comment On The Origins Of Shared Intuitions Of Justice, Christopher B. Jaeger

Vanderbilt Law Review En Banc

No abstract provided.

Common Answers For Class Certification, Richard A. Nagareda

Vanderbilt Law Review En Banc

No abstract provided.

Go West, Young Woman - The Mercer Girls And Legal Historiography, Kristin A. Collins

Vanderbilt Law Review En Banc

No abstract provided.

The Curse Of Bigness And The Optimal Size Of Class Actions, Alexandra D. Lahav

Vanderbilt Law Review En Banc

No abstract provided.

Dead On The Vine: Living And Conceptual Art And Vara, Charles Cronin

Vanderbilt Journal of Entertainment & Technology Law

The Visual Artists Rights Act of 1990 (VARA) broadened general copyright protection under U.S. law by granting to artists who have created certain copyrightable physical works of visual art, the moral rights of attribution and integrity. Since the time of VARA's enactment (and for some time before) many artists have worked with unconventional genres and media to produce art that is not comfortably accommodated among the visual art works contemplated by VARA. An increasing number of recent works of Conceptual and Appropriationist Art raise doubts about fixation and original expression, both of which are required for copyrightability which, in turn, …

The Weak Protection Of Strong Encryption: Passwords, Privacy, And Fifth Amendment Privilege, Nathan K. Mcgregor

Vanderbilt Journal of Entertainment & Technology Law

While the constitutional protection afforded private papers has waxed and waned for more than a century, the Supreme Court has greatly restricted the Fifth Amendment privilege against self-incrimination--at least as applied to voluntarily prepared documents. Specifically, where the government knows of the existence and location of subpoenaed documents, the Fifth Amendment guarantee will not justify a failure to produce them, unless the act of production would itself incriminate the defendant. However, the Self-Incrimination Clause still precludes the compelled creation of documents that are both incriminating and testimonial.

The "private papers" doctrine has remained relatively stable for approximately thirty years now, …

Is That Really Me?: Social Networking And The Right Of Publicity, Rachel A. Purcell

Vanderbilt Journal of Entertainment & Technology Law

Social networking websites are ubiquitous in modern culture and popular with people of all ages and demographics. Operators of this kind of site, which consist largely of third party generated content, are immune from many types of civil liability for third party postings under the Communications Decency Act. However, the Act does not immunize these providers from intellectual property right infringements. Recent court decisions suggest that this immunity exception may extend not only to federal intellectual property rights, but state intellectual property rights like the right of publicity. This Note will evaluate the emerging circuit split regarding state intellectual property …

I Put You There: User-Generated Content And Anticircumvention, Rebecca Tushnet

Vanderbilt Journal of Entertainment & Technology Law

This Article discusses recent rulemaking proceedings before the Copyright Office concerning the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA). During these proceedings, non-institutionally affiliated artists organized to assert their interests in making fair use of existing works, adding new voices to the debate. A proposed exemption for noncommercial remix video is justified to address the in terrorem effect of anticircumvention law on fair use. Without an exemption, fair users are subjected to a digital literacy test combined with a digital poll tax, and this regime suppresses fair use. The experience of artists (vidders) confronting the law illustrates both …

A Chance For Redemption: Revising The "Persecutor Bar" And "Material Support Bar" In The Case Of Child Soldiers, Kathryn White

Vanderbilt Journal of Transnational Law

Armed groups in conflicts around the world frequently exploit child soldiers. Despite the unique experience of child soldiers, who are frequently recruited by means of force and deceit, immigration law as it is currently applied may bar former child soldiers from receiving asylum in the United States. In particular, the prevailing agency interpretation of the "persecutor bar" and the "material support bar" equates child soldiers with adults who have committed serious atrocities. This Note argues that the application of these asylum bars to former child soldiers runs against social values and standards of moral culpability in the United States. Child …

Catfish, Shrimp, And The Wto: Vietnam Loses Its Innocence, Do T. Cong

Vanderbilt Journal of Transnational Law

This Article explores the advantages that WTO membership brings to Vietnam in connection with antidumping disputes. In particular, this Article examines the trade relationship between Vietnam and the United States, including disputes over catfish and shrimp, prior to Vietnam's accession to the WTO. The Article concludes that Vietnam's WTO membership and experience with catfish and shrimp will serve exporters well when new trade disputes arise. Vietnamese exporters will better understand their options and will be better equipped to defend themselves in antidumping disputes.

Civil Society And Democracy In Japan, Iran, Iraq And Beyond, Shiva Falsafi

Vanderbilt Journal of Transnational Law

This Article addresses the mystery of why some countries appear to become democracies seamlessly while others face insurmountable obstacles. While acknowledging the importance of civil society to democratization at the time of transition, this Article argues that broad historical civil society movements, even if devoid of immediate political impact, also facilitate the passage to democracy at a later date.

This Article takes a comparative look at the constitutional, labor, and women's movements in Japan, Iraq, and Iran, from the nineteenth century to the present. It demonstrates that the resilience of Japanese civil society from 1868 onward secured the country's successful …

With Bases Loaded, Alito Hits A Home Run, Ellen S. Pogdor

Vanderbilt Law Review En Banc

No abstract provided.

The Quasi-Class Action Method Of Managing Multi-District Litigations: Problems And A Proposal, Charles Silver, Geoffrey P. Miller

Vanderbilt Law Review

This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys' compensation, (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees, and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily …