Law Commons^™

A Regulatory Scheme For The Dawn Of Space Tourism, Molly M. Mccue

Vanderbilt Journal of Transnational Law

Today, companies like Blue Origin and Virgin Galactic have successfully launched paying customers into space, forging the future of the space tourism industry. While a growing space tourism industry promotes scientific advancement and opens an activity once reserved for trained astronauts to the public, the industry generates new issues and reveals the vulnerabilities of international space law. This Note explores the history of commercial spaceflight and the international agreements that comprise the current legal regime. It argues that space tourism presents a need for a new international agreement to address three vulnerabilities in the current international regime: environmental protections, protections …

Courts Without Court, Andrew G. Ferguson

Vanderbilt Law Review

What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, …

Russia, Ukraine, And The Future World Order, Ingrid W. Brunk, Monica Hakimi

Vanderbilt Law School Faculty Publications

Russia's invasion of Ukraine, initiated on February 24, 2022, is among the most—if not the most—significant shocks to the global order since World War II. This piece assesses the stakes of the invasion for the core principles that lie at the heart of contemporary international law and the world order that it has helped to create. We argue, relying in part on the other contributions to the October 2022 agora on Ukraine in the American Journal of International Law, that however this war ends, it will reshape, in ways large and small, the world we all inhabit.

Co-Authorship Between Photographers And Portrait Subjects, Molly T. Stech

Vanderbilt Law School Faculty Publications

Copyright law provides that when two or more authors create a single 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 …

Time To Repay Or Time To Delay? The Effect Of Having More Time Before A Payday Loan Is Due, Paige Marta Skiba, Susan Payne Carter, Kuan Liu, Justin Sydnor

Vanderbilt Law School Faculty Publications

We examine the effect of state laws on minimum payday loan durations that give some borrowers an additional pay cycle to repay their initial loan with no other changes to contract terms. Neoclassical models predict this “grace period” would reduce borrowers’ need for costly loan rollovers. However, in reality, borrowers’ repayment behavior with grace periods is very similar to borrowers with shorter loans, merely pushed out a few weeks. Potential explanations include heuristic repayment decisions and naïve present focus. A calibrated model suggests that present-focused borrowers get less than one-half of the benefit from a grace period that time-consistent borrowers …

The Emerging Authority Of Magistrate Judges Within U.S. District Courts, Tracey E. George, Christina L. Boyd, Albert H. Yoon

Vanderbilt Law School Faculty Publications

The federal judicial system is a hierarchy with district courts at the bottom, courts of appeals in the middle, and the Supreme Court at the top. A second, less visible, judicial hierarchy exists within district courts, with magistrate judges situated below district judges. Existing scholarship largely ignores magistrate judges, assuming they are agents tasked with procedural matters with little independent effect on federal courts adjudication. Using a combination of national administrative data (2000–2016) and original case-level data from nine district courts (1997–2014), we find that district courts not only grant meaningful responsibility and discretion to magistrate judges but do so …

Protecting What Matters: Reflections On A Central Bank's Role At Times Of War, Iris H-Y Chiu, Alan H. Brener

Vanderbilt Journal of Transnational Law

This Article explores the important and multifaceted roles of a central bank in extraordinary times of crisis such as war, focusing on the National Bank of Ukraine (NBU) and its responses in the face of the Russian invasion of Ukraine which began on February 24, 2022. During a time of martial law, institutional preservation and legitimacy can be threatened, but preserving these very institutional tenets is important in defending the nation under siege and in securing future restoration and rebuilding. In this light, we examine the NBU's difficult and conflicting choices in three respects: providing war finance, preserving banking and …

Money Grab: How The G20/Oecd Inclusive Framework For Taxation Could Unnecessarily Disrupt Corporate Incentives And Misallocate Taxing Rights, William T. Anderson

Vanderbilt Journal of Transnational Law

The Organisation of Economic Co-operation and Development (OECD) is proposing a dramatic shift to international corporate taxation that both sets a floor for corporate tax rates across the globe and transforms how countries obtain taxing rights over large multinational corporations. This Note focuses on the proposed framework for re-allocating taxing rights over corporations away from the traditional requirement of a physical presence in a country to mere revenues in a country. This Note identifies problems with the proposal as it relates to artificially altering corporate incentives and structures, as well as the proposal's incompatibility with theories of taxation- including Adam …

Confronting The Racial Pay Gap, Stephanie Bornstein

Vanderbilt Law Review

For several decades, a small body of legal scholarship has addressed the gender pay gap, which compares the median full-time earnings of women and men. More recently, legal scholars have begun to address the racial wealth gap, which measures racial disparities in family economic security and wealth accumulation. Yet a crucial component of both the gender pay gap and the racial wealth gap remains unaddressed in the legal literature: the pay gap between the earnings of White workers and workers of color. Today, all women average eighty-two cents to each dollar men earn, but Black and Latinx workers average only …

Policing The Police: Personnel Management And Police Misconduct, Max Schanzenbach

Vanderbilt Law Review

Police misconduct is at the top of the public policy agenda, but there is surprisingly little understanding of how police personnel management policies affect police misconduct. Police-civilian interactions in large jurisdictions are, in principle at least, highly regulated. But these regulations are at least partially counteracted by union contracts and civil service regulations that constrain discipline and other personnel decisions, thereby limiting a city’s ability to manage its police force. This Essay analyzes police personnel management by bringing forth evidence from a variety of data sources on police personnel practices as well as integrating an existing, but relatively siloed, literature …

Gravity And Grace: Foreign Investments And Cultural Heritage In International Investment Law, Valentina Vadi

Vanderbilt Journal of Transnational Law

Globalization and international economic governance have promoted dialogue and interaction among nations, potentially increasing cultural diversity and providing the funds to recover and preserve cultural heritage. However, these phenomena can also jeopardize cultural diversity. Foreign direct investments in the extraction of natural resources have the potential to change cultural landscapes, destroy monuments, and erase memories. In parallel, international investment law constitutes a legally binding and highly effective regime that demands that states promote and facilitate foreign direct investment. Does the existing legal framework adequately protect cultural heritage vis-a-vis the economic interests of foreign investors? To address this question, this Article …

Security Council Resolutions And The Double Function Of Explanation Of Votes, Mark Klamberg

Vanderbilt Journal of Transnational Law

UN Security Council resolutions are not always clear: they sometimes need to be interpreted. Members of the Security Council may make statements in connection with their votes, termed explanation of votes. Explanation of votes may have at least two functions. First, they may contribute to the formation of customary international law. Secondly, they can be used as a means for interpreting Security Council resolutions in relation to a specific situation or dispute. The present Article examines different trajectories of conversations to show how Security Council resolutions and explanation of votes may protect the status quo in some instances and act …

Defending Henrietta Lacks: Justification Of Ownership Rights In Separated Human Body Parts, Arseny Shevelev, Georgy Shevelev

Vanderbilt Journal of Transnational Law

Since the time of Moore v. Regents of the University of California, it has become a well-established and widespread view that a person, when their separated body parts are misappropriated, is forced to limit themselves to fiduciary and other non-proprietary claims against those who violate the bodily inviolability of their separated parts. Now, with the filing of a lawsuit in defense of the rights in body parts of the victim of racial discrimination, Henrietta Lacks, the judicial system has an opportunity to justify itself by adopting a different perception of rights in human body parts. This Article focuses on the …

Conservation Options: Conservation Easements, Flexibility, And The "In Perpetuity" Requirement Of Irc § 170(H), Molly Teague

Vanderbilt Law Review

Conservation easements have been closely tied to tax incentives since the 1970s, when Congress passed legislation to encourage land preservation. In an attempt to balance the desire to conserve more land with the desire to prevent tax abuses, Congress later passed § 170(h) of the Internal Revenue Code, which requires that conservation easements be donated “in perpetuity” to be eligible for the federal tax deduction.

As climate change increases global temperatures, shifts migratory patterns, and causes sea levels to rise, conservation easements’ ability to adapt to changing circumstances must also become part of Congress’s balancing equation. This Note evaluates the …

Why Can’T We Be Frands?: Anti-Suit Injunctions, International Comity, And International Commercial Arbitration In Standard-Essential Patent Litigation, Raghavendra R. Murthy

Vanderbilt Law Review

Picking up a smartphone to contact someone across the globe isfacilitated by technical standards like 5G. These standards allow for technological compatibility worldwide. For instance, a 5G capable device can connect to 5G networks anywhere in the world because the same 5G standard is used globally. Standards, particularly those integral to the telecommunications industry, are also highly complex and contain many patents that are necessarily infringed when the standard is implemented. To avoid rampant patent infringement, owners of these standard-essential patents (“SEPs”) are required to license them to standard implementers at fair, reasonable, and non-discriminatory (“FRAND”) rates when their patents …

Exponential Growth Bias And The Law: Why Do We Save Too Little, Borrow Too Much, And Fail To React On Time To Deadly Pandemics And Climate Change?, Doron Teichman,, Eyal Zamir, Professor Of Commercial Law

Vanderbilt Law Review

Many human decisions, ranging from the taking of loans with compound interest to fighting deadly pandemics, involve phenomena that entail exponential growth. Yet a wide and robust body of empirical studies demonstrates that people systematically underestimate exponential growth.

This phenomenon, dubbed the exponential growth bias (“EGB”), has been documented in numerous contexts and across different populations, using both experimental and observational methods.

Despite its centrality to human decisionmaking, legal scholarship has thus far failed to account for the EGB. This Article presents the first comprehensive study of the EGB and the law. Incorporating the EGB into legal analysis sheds a …

Unclean Patents, Sean B. Seymore

Vanderbilt Law School Faculty Publications

The doctrine of unclean hands is perhaps the most storied affirmative defense in civil cases. It allows a court to dismiss a lawsuit without reaching the merits if the patent owner (patentee) engaged in misconduct related to the claim being asserted. In patent law, the Supreme Court has stated that the doctrine is of "paramount interest" given the nature of the patent bargain between the inventor and the public. Nonetheless, unclean hands has been a relatively dormant defense in patent cases, other than in the specific context of patent procurement at the Patent Office (where it has evolved into the …

The Public Right To Education, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Public education is "the most important function of state and local government" and yet not a "fundamental right or liberty." This Article engages one of constitutional law's most intractable problems by introducing "the public right to education" as a doctrinal pathway to a constitutional right to education process in three steps. First, it identifies that the otherwise right-to-education foreclosing case, San Antonio Independent School District v. Rodriguez, only contemplated education as a fundamental right or liberty interest. Second, by identifying public education as a due process protected property interest, this Article presents a viable pathway for circumventing Rodriguez. Third, mindful …

Bringing Predictability To The Chaos Of Punitive Damages, W. Kip Viscusi, Benjamin J. Mcmichael

Vanderbilt Law School Faculty Publications

Punitive damages remain unique in the American legal system. Awarded in the civil context with none of the protections offered in criminal law, courts levy punitive damages to punish and deter. The Supreme Court of the United States has clearly stated that courts may only seek to achieve these two goals when imposing punitive damages. A closer reading of the Court's punitive damages jurisprudence, however, reveals another goal that has largely been ignored: predictability. Unlike punishment and deterrence, predictability is not a purpose for which to award punitive damages. Instead, the Court requires that, when awarded, the level of punitive …

Without Accommodation, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

Under the Americans with Disabilities Act (ADA), workers with disabilities have the legal right to reasonable workplace accommodations provided by employers. Because this legal right is unique to disabled workers, these workers could, in theory, enjoy greater access to the types of accommodations that are desirable to all workers including the ability to work from home, to work flexible hours, and to take leave. This Article compares access to these accommodations, which have become increasingly desirable during the COVID-19 pandemic, between disabled workers and nondisabled workers. Using 2017-2018 data from the American Time Use Survey's Leave and Job Flexibilities Module, …

Racial Capitalism In The Civil Courts, Lauren Sudeall, Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg

Vanderbilt Law School Faculty Publications

This Essay explores how civil courts function as sites of racial capitalism. The racial capitalism conceptual framework posits that capitalism requires racial inequality and relies on racialized systems of expropriation to produce capital. While often associated with traditional economic systems, racial capitalism applies equally to nonmarket settings, including civil courts.

The lens of racial capitalism enriches access to justice scholarship by explaining how and why state civil courts subordinate racialized groups and individuals. Civil cases are often framed as voluntary disputes among private parties, yet many racially and economically marginalized litigants enter the civil legal system involuntarily, and the state …

And A Public Defender For All, Sara Mayeux

Vanderbilt Law School Faculty Publications

The Senate confirmation of Ketanji Brown Jackson to the Supreme Court last week means that she is soon to be the first Supreme Court justice with prior experience as a federal public defender. This is historic in its own right, though it is not quite as surprising on closer inspection, since the institution of the federal public defender — in its currently prevailing organizational particulars, anyway — dates back only to the 1970s. Still, given that several of the justices previously worked as federal prosecutors, Jackson’s confirmation injects a welcome measure of professional balance to the lineup. Moreover, Jackson can …

Worth A Shot: Encouraging Vaccine Uptake Through “Empathy”, Dr. Jody Lyneé Madeira

Vanderbilt Journal of Entertainment & Technology Law

Pro- and anti-vaccine organizations and individuals have frequently invoked empathy as a strategy for increasing uptake of COVID-19 precautions, including vaccinations. On one hand, vaccine supporters deployed empathy to defuse conflict, prioritize safeguarding the collective welfare, and avoid government mandates. On the other hand, vaccine opponents used empathy to emphasize the alleged individual effects of pandemic precautions, mobilize public voices, and stress the importance of medical freedom in policy-making contexts.

This Article first defines empathy and reviews empathy scholarship, paying particular attention to its relationship with narrative and the contexts where empathy can be difficult or dangerous. It then applies …

The Future Of Ai Accountability In The Financial Markets, Gina-Gail S. Fletcher, Michelle M. Le

Vanderbilt Journal of Entertainment & Technology Law

Consumer interaction with the financial market ranges from applying for credit cards, to financing the purchase of a home, to buying and selling securities. And with each transaction, the lender, bank, and brokerage firm are likely utilizing artificial intelligence (AI) behind the scenes to augment their operations. While AI’s ability to process data at high speeds and in large quantities makes it an important tool for financial institutions, it is imperative to be attentive to the risks and limitations that accompany its use. In the context of financial markets, AI’s lack of decision-making transparency, often called the “black box problem,” …

Solving For Law Firm Inclusion: The Necessity Of Lawyer Well-Being, Katrina Lee

Vanderbilt Journal of Entertainment & Technology Law

Chances are, in a room of one hundred law firm partners in the United States, at most, one Black woman would be present. Statistically, if there were a Black, Latinx, or Asian woman in that room, she would be the only one. Women of color make up only 3.79 percent of all partners, counting equity and nonequity partners. The percentage of Black women among all partners has remained solidly under one percent—0.57 percent in 2009 and 0.80 percent in 2020. And so, women of color lawyers starting at law firms inevitably enter spaces that are overwhelmingly white and male—spaces where …

Challenging Some Baseline Assumptions About The Evolution Of International Commissions Of Inquiry, Michael A. Becker

Vanderbilt Journal of Transnational Law

Conventional accounts of the historical development of international commissions of inquiry reflect a progress narrative consisting of three propositions: (1) that recourse to inquiry bodies has increased dramatically in the post-Cold War era, (2) that inquiry bodies have evolved from mechanisms for "pure" fact- finding into quasi-judicial bodies that engage with international law, and (3) that the function of inquiry bodies has shifted from diplomatic dispute settlement to norm enforcement and accountability. Part I explains how this narrative simplifies and distorts the rich history of inquiry bodies in international affairs. Part II shows how the idea of a post-Cold War …

Authoring Prior Art, Joseph P. Fishman, Kristelia Garcia

Vanderbilt Law School Faculty Publications

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow …

The Regulation Of Foreign Platforms, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In August 2020, the Trump Administration issued twin executive orders banning tech platforms TikTok and WeChat from the United States. These were not the first actions taken by the Trump Administration against Chinese tech platforms. But more than any other, the ban on TikTok sparked immediate outrage, confusion, and criticism.

This Article offers a new framework for thinking about national security restrictions on foreign tech platforms. A growing body of scholarship draws on principles from regulated industries, infrastructure industries, and public utilities to show how the regulation of tech platforms is not only viable but also has significant precedent and …

The Reckoning: The Return Of Genomic Results To 1444 Participants Across The Emerge3 Network, Ellen W. Clayton, Kathleen A. Leppig, Et Al.

Vanderbilt Law School Faculty Publications

The goal of Electronic Medical Records and Genomics (eMERGE) Phase III Network was to return actionable sequence variants to 25,084 consenting participants from 10 different health care institutions across the United States. The purpose of this study was to evaluate system-based issues relating to the return of results (RoR) disclosure process for clinical grade research genomic tests to eMERGE3 participants.

Policing Police Tech: A Soft Law Solution, Farhang Heydari, Barry Friedman, Max Isaacs, Katie Kinsey

Vanderbilt Law School Faculty Publications

Policing agencies are undergoing a rapid technological revolution. New products—with almost unfathomable capacities to collect, store, monitor, and transmit data about us—constantly are coming to market. In the hands of policing agencies, some of these products may promise real benefits to society. But too often these public safety benefits are unproven. And many of these products present real harms, including risks to privacy, freedom of speech, racial justice, and much more. Part of “public safety” is being safe from these harms as well.
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