Law Commons^™

Co-Authorship Between Photographers And Portrait Subjects, Molly Torsen Stech

Vanderbilt Journal of Entertainment & Technology Law

work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author’s choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be situated in full light or obfuscated by shadow, among many other options. …

The Data Trust Solution To Data Sharing Problems, Kimberly A. Houser, John W. Bagby

Vanderbilt Journal of Entertainment & Technology Law

A small number of large companies hold most of the world’s data. Once in the hands of these companies, data subjects have little control over the use and sharing of their data. Additionally, this data is not generally available to small and medium enterprises or organizations who seek to use it for social good. A number of solutions have been proposed to limit Big Tech “power,” including antitrust actions and stricter privacy laws, but these measures are not likely to address both the oversharing and under-sharing of personal data. Although the data trust concept is being actively explored in the …

How Free Should A Freeport Be?: Reducing Money Laundering In The Art Market Through Freeport Regulation, Cates Grier Saleeby

Vanderbilt Journal of Entertainment & Technology Law

The tax incentives that luxury freeports provide have created opportunities for money laundering and other forms of financial crime through the sale of art. The use of such institutions in combination with the anonymity that art transactions allow can create a series of transactions that are difficult to track, making the market ripe for corrupt behavior. Legislation like the Anti-Money Laundering Act, the Bank Secrecy Act, and the Money Laundering Control Act have helped reduce financial crime, but an approach more narrowly tailored to the art market and the freeports that enable its high value sales would further the goals …

A Major Answer To The Major Questions Doctrine, Edward L. Rubin

Vanderbilt Law School Faculty Publications

The Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.

The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an …

Returning Integrated Genomic Risk And Clinical Recommendations: The Emerge Study, Ellen W. Clayton, Jodell E. Linder, Aimee Allworth, Sara T. Bland, 100 Others...

Vanderbilt Law School Faculty Publications

The potential of artificial intelligence (AI) to reduce health care disparities and inequities is recognized, but it can also exacerbate these issues if not implemented in an equitable manner. This perspective identifies potential biases in each stage of the AI life cycle, including data collection, annotation, machine learning model development, evaluation, deployment, operationalization, monitoring, and feedback integration. To mitigate these biases, we suggest involving a diverse group of stakeholders, using human-centered AI principles. Human-centered AI can help ensure that AI systems are designed and used in a way that benefits patients and society, which can reduce health disparities and inequities. …

The Case For Establishing A Collective Perspective To Address The Harms Of Platform Personalization, Aylet Gordon-Tapiero, Alexandra Wood, Katrina Ligett

Vanderbilt Journal of Entertainment & Technology Law

Personalization on digital platforms drives a broad range of harms, including misinformation, manipulation, social polarization, subversion of autonomy, and discrimination. In recent years, policy makers, civil society advocates, and researchers have proposed a wide range of interventions to address these challenges. This Article argues that the emerging toolkit reflects an individualistic view of both personal data and data-driven harms that will likely be inadequate to address growing harms in the global data ecosystem. It maintains that interventions must be grounded in an understanding of the fundamentally collective nature of data, wherein platforms leverage complex patterns of behaviors and characteristics observed …

Influencing “Kidfluencing”: Protecting Children By Limiting The Right To Profit From “Sharenting”, Charlotte Yates

Vanderbilt Journal of Entertainment & Technology Law

Statistics on children’s digital presences are staggering, with an overwhelming majority of children having unique digital identities by age two. The phenomenon of “sharenting” (parents sharing content of their children on social media) can start as early as a sonogram photo or a birth video and evolve into parent-run Instagram and TikTok accounts soon after. Content is often intimate, sometimes embarrassing, and frequently shared without children’s consent. Sharenting poses a myriad of risks to children including identity theft, digital kidnapping, exposure to child predators, emotional trauma, and social isolation. In the face of such significant risks to children’s well-being, one …

Delaware Supreme Court Requires Stockholder Vote To Approve Company’S Transfer Of Pledged Assets To Satisfy Defaulted Debt, Robert S. Reder

Vanderbilt Law Review En Banc

No abstract provided.

“Chalking Up A Victory For Deal Certainty”: Chancery Court Reinforces High Bar To Establishing “Mae” In Connection With Impact Of Covid-19, Robert S. Reder, Zachary R. Ryan

Vanderbilt Law Review En Banc

No abstract provided.

Type I Vs. Type Ii: Delaware Courts Discuss Enforceability Of Preliminary Agreements, Robert S. Reder, Evan T. Kowalski

Vanderbilt Law Review En Banc

No abstract provided.

Call Me, Beep Me, If You Want To Reach Me: Utilizing Telemedicine To Expand Abortion Access, Samantha A. Hunt

Vanderbilt Law Review

In June 2022, the Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization. The decision confirmed what the public already knew. An anonymously leaked draft version of what ultimately became Justice Samuel Alito’s majority opinion had braced the country for Dobbs’s keyholding. Overturning decades of precedent, the Court found that there is no right to abortion in the United States Constitution. Shortly thereafter, states began implementing restrictions and near-total bans on abortion. These laws had an immediate effect on the safety of pregnant people. In Tennessee, a state where abortion is now outlawed, one woman had …

Application Of Mfw Framework Defeats Challenge To Corporate Charter Amendment Favoring Control Stockholder, Robert S. Reder, Kathryn A. Fish

Vanderbilt Law Review En Banc

No abstract provided.

Copyright Co-Ownership In Uncertain Times: How Security Interests Can Save The Day, Evie Whiting, Ashleigh Stanley

Vanderbilt Journal of Entertainment & Technology Law

Films and television series are increasingly being created undera co-production model, making copyright co-ownership a common occurrence in the world of Hollywood content creation. So long as each co-owner’s rights are pre-negotiated and specifically delineated in their contracts, the co-owners can rest assured that their rights to the project and any potential derivative works are safe. Or can they?

In the modern entertainment landscape, where tentpole programming and related spinoffs and derivatives are the gold standard of content creation, the proper protection of co-owned copyrights is more important than ever. But tenuous financial outlooks pose a looming, existential threat to …

The Rise And Fall Of The Horseracing Integrity And Safety Act: How Congress Could Save The “Sport Of Kings”, Lucy Mcafee

Vanderbilt Journal of Entertainment & Technology Law

The Horseracing Integrity and Safety Act (HISA) has undergone several unsuccessful changes over the past decade in an effort to change how horseracing is regulated. After Congress successfully passed HISA in 2020, several lawsuits were filed to stop HISA from going into effect. Congress quickly passed an amendment to HISA—which the US Court of Appeals for the Sixth Circuit upheld—seemingly stopping such litigation, but it is clear from opponents’ statements that this is just the beginning. This Note will examine the constitutional arguments’ strengths and weaknesses through precedent to determine whether the long-awaited act, as amended, can stand the test …

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law Review

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an “element” that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

Enforcing Soft Law In International Investment Arbitration, Vera Korzun

Vanderbilt Journal of Transnational Law

Drawing examples from international environmental law, sustainable development, and corporate social responsibility, this Article examines the evolving role of international investment arbitration in the enforcement of non-binding soft law rules of international law. In doing so, the Article explains how investment tribunals can, and have been called upon to, interpret and, paradoxically, enforce soft law instruments. The Article calls for reevaluation of the nature of soft law and the role of investor-state dispute settlement in international rulemaking and enforcement. It also argues that for international environmental law and law on sustainable development, where the lack of an enforcement mechanism has …

How Transnationally Effective Are The Uk Migration Policies In Relation To Missing Migrants? A Transnational Law Perspective, Luke N. Eda

Vanderbilt Journal of Transnational Law

All over the world, several thousands of migrants go missing when they attempt to flee from war, violence, persecution, repressive regimes, systematic human rights violations, etc. Thousands die each year in deadly shipwrecks in a desperate attempt to enter Europe and the United Kingdom. In these instances of deaths and loss, international human rights law imposes duties on states to account for people missing in transnational migration and to respect the rights of members of their families. Despite such provisions, states sometimes deny that they have obligations to deal with cases of migrants reported missing in transnational migration until migrants …

The Death Of The Legal Subject, Katrina Geddes

Vanderbilt Law School Faculty Publications

The law is often engaged in prediction. In the calculation of tort damages, for example, a judge will consider what the tort victim’s likely future earnings would have been, but for their particular injury. Similarly, when considering injunctive relief, a judge will assess whether the plaintiff is likely to suffer irreparable harm if a preliminary injunction is not granted. And for the purposes of a child custody evaluation, a judge will consider which parent will provide an environment that is in the best interests of the child.

Relative to other areas of law, criminal law is oversaturated with prediction. Almost …

Unenforceable Waivers, Edward K. Cheng, Ehud Guttel, Yuval Procaccia

Vanderbilt Law School Faculty Publications

Textbook tort law establishes that waivers of liability-—especially those involving physical harm-—are often unenforceable. This Essay demonstrates through an extensive survey of the case law that despite being unenforceable, such waivers remain in widespread use. Indeed, defendants frequently use waivers even when a court has previously declared their specific waivers to be void. So why do such waivers persist? Often the simple answer is to hoodwink would-be plaintiffs. Waivers serve as costless deterrents to tort claims: Either they dupe naïve victims into believing that their claims are barred, or if not, the defendant is no worse off than before. Such …

Spac Mergers, Ipos, And The Pslra's Safe Harbor: Unpacking Claims Of Regulatory Arbitrage, Amanda M. Rose

Vanderbilt Law School Faculty Publications

Communications in connection with an initial public offering (IPO) are excluded from the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 (PSLRA). Unsurprisingly, IPO issuers do not share projections publicly-—the liability risk is too great. By contrast, communications in connection with a merger are not excluded from the safe harbor, and special purpose acquisition companies (SPACs) routinely share their merger targets’ projections publicly. Does the divergent application of the PSLRA’s safe harbor in traditional IPOs and SPAC mergers create an opportunity for “regulatory arbitrage” and, if so, what should be done about it? …

Time To Slapp Back: Advocating Against The Adverse Civil Liberties Implications Of Litigation That Undermines Public Participation, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

Defamation law is a catchall term encompassing civil claims for reputational harm to an individual, including slander and libel. Defamation claims originated in English common law and have since evolved within the American legal system. Scholars have characterized the law of defamation as “a forest of complexities, overgrown with anomalies, inconsistencies, and perverse rigidities” and as a “‘fog of fictions, inferences, and presumptions.’” Amid these inherent variations and complexities of defamation law and litigation — including the largely state-specific nature of tort law development — emerges a disturbing trend across jurisdictions. In the modern era, defamation claims have been used …

Growth ≠ Density: Zoning Deregulation And The Enduring Problem Of Sprawl, Christopher Serkin, Kelsea Best

Vanderbilt Law School Faculty Publications

According to its many critics, zoning bears significant responsi- bility for the housing crisis in America andfor promoting unsustain- able development patterns. Reformers argue that zoning reduces the supply of new housing and therefore drives up prices in thriving communities. Zoning also increases carbon emissions by restricting density in the urban core and promoting carbon-intensive, land- consuming, automobile-dependent sprawl in single-family suburbs. A growing chorus calls for relaxing zoning limits in order to pro- mote growth in the urban core as a response to the twin crises of housing costs and climate change. Relaxing zoning limits will al- most certainly …

Surveillance Technologies And Constitutional Law, Christopher Slobogin, Sarah Brayne

Vanderbilt Law School Faculty Publications

This review focuses on government use of technology to observe, collect, or record potential criminal activity in real-time, as contrasted with “transaction surveillance” that involves government efforts to access already-existing records and exploit Big Data, topics that have been the focus of previous reviews (Brayne 2018, Ridgeway 2018). Even so limited, surveillance technologies come in many guises, including closed-circuit television, automated license plate and facial readers, aerial cameras, and GPS tracking. Also classifiable as surveillance technology are devices such as thermal and electromagnetic imagers that can “see” through walls and clothing. Finally, surveillance includes wiretapping and other forms of communication …

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law School Faculty Publications

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an "element" that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

The Perils Of Asian-American Erasure, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Affirmative action, particularly its most well-known variant, race-conscious college admissions practices, has long occupied a precarious position in constitutional jurisprudence of equal protection and statutory antidiscrimination law. As a policy matter, affirmative action practices are necessary to reduce the impact of durable structural barriers to opportunity that have been imposed on members of identifiable racial groups because of their race. Legally, they’re on far less secure footing.

As a constitutional matter, these measures have been summarily divorced from any reparative purpose since the “diversity rationale” emerged from Regents of the University of California v. Bakke as the only compelling interest …

Concordance Of International Regulation Of Pediatric Health Research, Ellen W. Clayton, Mark A. Rothstein Jd, Et Al.

Vanderbilt Law School Faculty Publications

International, multi-site, pediatric health research has shown great promise by vastly increasing the amount and heterogeneity of biospecimens and clinical records. However, considerable impediments are created by the significant costs and delays associated with obtaining regulatory approval in numerous countries, which is often complicated by varying and sometimes opaque research ethics standards and procedures. Although it is unlikely that the global community could reach consensus on a single set of research ethics policies and procedures, voluntary policy pronouncements by countries agreeing to defer to the approval of research ethics bodies in other countries might be a way forward.

Deference is …

Education And Electronic Medical Records And Genomics Network, Challenges And Lessons Learned From A Large-Scale Clinical Trial Using Polygenic Risk Scores, Ellen Wright Clayton, John J. Connolly, Et Al.

Vanderbilt Law School Faculty Publications

Polygenic risk scores (PRS) have potential to improve health care by identifying individuals that have elevated risk for common complex conditions. Use of PRS in clinical practice, however, requires careful assessment of the needs and capabilities of patients, providers, and health care systems. The electronic Medical Records and Genomics (eMERGE) network is conducting a collaborative study which will return PRS to 25,000 pediatric and adult participants. All participants will receive a risk report, potentially classifying them as high risk (∼2-10% per condition) for 1 or more of 10 conditions based on PRS. The study population is enriched by participants from …

Differences By Race And Ethnicity In Title Ix's Effect On Women's Health, W. Kip Viscusi, Joni Hersch, Delaney Beck

Vanderbilt Law School Faculty Publications

Title IX greatly expanded adolescent females’ participation in athletic activities, which may have led to health benefits that extend into later life. Previous research has not explored whether health benefits arising from Title IX differ by race or ethnicity and has not examined women at older ages when health problems become more evident. This article examines the effect of Title IX on racial and ethnicity disparities in health outcomes by considering women aged 42–52 years. White women in these age groups exhibit declines in their self-assessed health status and increases in many health-related ailments, consistent with other evidence on temporal …

Compensating Differentials For Occupational Health And Safety Risks: Implications Of Recend Evidence, W. Kip Viscusi, Thomas J. Kniesner

Vanderbilt Law School Faculty Publications

The most enduring measure of how individuals make personal decisions affecting their health and safety is the compensating wage differential for job safety risk revealed in the labor market via hedonic equilibrium outcomes. The decisions in turn reveal the value of a statistical life (VSL), the value of a statistical injury (VSI), and the value of a statistical life year (VSLY), which have both mortality and morbidity aspects that we describe and apply here. All such tradeoff rates play important roles in policy decisions concerning improving individual welfare. Specifically, we explicate the recent empirical research on VSL and its related …

How Regulations Undervalue Occupational Fatalities, W. Kip Viscusi, Robert J. Cramer

Vanderbilt Law School Faculty Publications

The U.S. Occupational Safety and Health Administration establishes incentives for safety by setting and enforcing regulatorystandards. Using four and a half decades of inspection data, this article provides a comprehensive analysis of the factors underpinning penalties following fatalities. The “fatality premium” for regulatory violations following a worker death is quitemodest and is several orders of magnitude below the value-of-a-statistical-life figure needed to establish efficient levels of deterrence in the absence of all other financial incentives. Although there are low statutory caps on penalties, only 8% of thepenalties for violations involving fatalities are constrained by the cap, suggesting that current statutes …