Law Commons^™

Safeguarding Public Pensioner Standing After Thole, Evelyn L. Stein

Vanderbilt Law Review

Today, public American pension funds hold over $6 trillion dedicated to rewarding the labor and stabilizing the retirements of millions of employees. These funds are facing increased scrutiny as activists draw more awareness to controversial investment strategies, resulting in litigation by plaintiffs arguing funds inappropriately prioritize goals other than financial returns. Structurally, many public funds operate with a defined benefit (DB) model, meaning fund beneficiaries are guaranteed specific payouts based on factors such as years of service and age at retirement. Because of this DB model, such litigation has been stymied by the U.S. Supreme Court's decision in Thole v. …

Justifying The Fourth Amendment, Daniel Epps

Vanderbilt Law Review

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment's content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment's constitutional protections are critically important-even if no one can agree exactly what those protections are.
This Article seeks a justification for the Fourth Amendment-the reason why search-and-seizure protections …

Looking Down The Road: The First Steps To A Public Interest Law Career, Amy Leipziger

Vanderbilt Social Justice Reporter

No abstract provided.

April 4, 1968: A Law Student’S Night In The Memphis Jail, Alex Jay Hurder

Vanderbilt Social Justice Reporter

No abstract provided.

Regulatory Settlement, Stare Decisis, And Loper Bright, Lisa Schultz Bressman, Kevin M. Stack

Vanderbilt Law School Faculty Publications

In Loper Bright v. Raimondo, the Supreme Court adopted and deployed a particular narrative about agency action in support of overruling Chevron: Agencies reverse their own statutory interpretations “as much as [they] like[],” creating pervasive instability in the law, thereby destroying private reliance interests. Based on a study of two decades of agency regulations affirmed by the D.C. Circuit under Chevron, we show how infrequently agencies reversed their interpretive positions. Our study suggests that the Court’s regulatory “whiplash” narrative is overstated and that there is an underappreciated institutional settlement for notice-and-comment rules under Chevron. Identifying this regulatory settlement …

Governing Complexity: A Comparative Assessment Of Four Governance Models With Applications To Climate Change Mitigation And Adaptation, J. B. Ruhl, Niko Soininen, Barbara Cosens, Lance Gunderson

Vanderbilt Law School Faculty Publications

Responses to ongoing global climate change include economy-wide mitigation efforts and large-scale societal adaptation that demand novel approaches to governance. An array of innovative governance models has been proposed since the late 1900s and early 2000s as scholars observed inadequacies of government-centric and formal legal approaches to natural resource management, complexity and uncertainty, failures of neoliberal economic reforms, and cross-scale institutional arrangements. Four such models have come to dominate the solution-oriented discourse on climate change governance: adaptive governance, transition governance, transformation governance, and anticipatory governance. We compare these models in terms of their origin and applicability to deal with the …

Failure To Fully Disclose Financial Advisor Conflicts In Two Controller Buyouts Dooms Application Of Mfw Framework, Robert S. Reder, Itza G. Mendez

Vanderbilt Law Review En Banc

No abstract provided.

Reading American Anarchy As A Legal History Of Immigrants: Forum On Willrich's American Anarchy Forum: Willrich's American Anarchy, Daniel J. Sharfstein

Vanderbilt Law School Faculty Publications

Michael Willrich’s American Anarchy is at once an extraordinary history of ideas about anarchism and the rule of law, a history of lawyering, and a history of the simultaneous emergence of a capacious administrative state alongside a robust set of judicially protected civil liberties. While Willrich tells a rich and intricate story of illiberal border administration, American Anarchy also shows radical immigrants at work over decades in New York, with the border and its oppressive administrative apparatus little more than a dim memory. This essay explores how the book is more than a history of the border—it’s a history of …

Holistic Criminal Justice, Hadar Dancig-Rosenberg

Vanderbilt Law Review

What does it mean to adopt a holistic approach to criminal justice? This symposium treats that question as a foundational inquiry into the theory, practice, and institutional architecture of criminal law. At a time of eroding public trust, a broad recognition that mass incarceration both reflects and entrenches structural inequality, growing pressure on legal actors to account for the human costs of their decisions, and anxiety about the rule of law, revisiting the normative commitments of criminal law feels like an urgent task. Holistic criminal justice is not a single method or intervention. It is a reorientation—a conceptual framework and …

Standardization And Routine In Criminal Law, Eric S. Fish

Vanderbilt Law Review

What does it mean to adopt a holistic approach to criminal justice? This symposium treats that question as a foundational inquiry into the theory, practice, and institutional architecture of criminal law. At a time of eroding public trust, a broad recognition that mass incarceration both reflects and entrenches structural inequality, growing pressure on legal actors to account for the human costs of their decisions, and anxiety about the rule of law, revisiting the normative commitments of criminal law feels like an urgent task.

Holistic criminal justice is not a single method or intervention. It is a reorientation-a conceptual framework and …

The Reasonable Officer And The Disabled Subject, Jamelia N. Morgan

Vanderbilt Law Review

Police violence against disabled people is a  fundamental problem of policing. Whether through so called wellness checks, quality of life policing, or coercive state civil commitment procedures, disabled people are often on the receiving end of intrusion, violence, and rights violations by law enforcement. Yet, so, too, is everyone else. That disabled people are similarly, and yet uniquely, vulnerable to intrusion, violence, and rights violations by law enforcement might seem like just another group to add to the list of groups harmed by policing and police violence. However, the focus on disability does not merely bring to the forefront problems …

Anti-Holistic Algorithms, Itay Ravid

Vanderbilt Law Review

This Article presents a critical tension in modern criminal justice between holistic criminal justice aspirations and algorithmic governance: whether the holistic rehabilitation and reintegration project can survive technological determinism. As criminal legal systems embrace algorithmic risk assessment tools as solutions to address recidivism, this Article reveals a profound epistemological concern: the fundamental incompatibility between viewing offenders as whole persons capable of transformation and reducing them to statistical probabilities within computational matrices. By doing so, it demonstrates how algorithmic mediation fundamentally alters and potentially destroys the holistic message itself.

In establishing this argument, the Article advances in two stages. It first …

Justice Through Proximity: Theoretical Foundations And Practical Applications Of Collaborative Justice, Federica Coppola, Jarrell E. Daniels

Vanderbilt Law Review

This Article introduces a collaborative justice framework as a model for addressing crime and reimagining approaches to policymaking and legal education. The framework emphasizes the prevention and resolution of criminal matters through holistic strategies that confront the structural and social determinants of crime and victimization including poverty, systemic inequality, trauma, unjust policies, and institutional neglect while also promoting broader systemic change. At its core is the active engagement between legal system actors especially decisionmakers such as judges, prosecutors, and policymakers and legal system impacted individuals and communities, fostering a more equitable distribution of decisionmaking power between justice providers and justice …

Plan-B Activist Defense: Defending Animal-Rights Activists In Courtrooms Hostile To Political Argumentation, Hadar Aviram

Vanderbilt Law Review

In recent years, several animal rights activists faced criminal charges for rescuing animals from factory farms. The standard legal approach in these cases has been relying on the necessity defense, which has a long history in cases of civil disobedience and ideologically driven crime. Animal law scholarship on this topic tends to focus on explaining why the defense applies to open rescue. However, as recent trials have demonstrated, actual courtrooms in rural counties tend to be hostile to the necessity defense, and judges can and do rely on Supreme Court precedent to keep it out of the courtroom.

This Article's …

“Justice Of Our Own”: Defining Success At The Red Hook Community Justice Center, Hadar Dancig-Rosenberg, Peter Dixon

Vanderbilt Law Review

This study examines how success is defined at the Red Hook Community Justice Center in Brooklyn, NYC, through a participatory, community centered lens. Moving beyond standard metrics, it articulates a locally grounded vision of success centered on empowerment, support, systemic accountability, and community trust. Drawing on the Everyday Peace Indicators approach, we convened nine focus groups and two public voting sessions with neighborhood residents, justice professionals, youth, former defendants, and family members. Participants generated and ranked 72 indicators, which we thematically clustered into six key categories reflecting the diverse contexts in which participants perceived the Center's impact: (1) rehabilitation and …

Beyond Autonomy: Rethinking Deception In Sexual Assault Law, Marie Manikis

Vanderbilt Law Review

This Article focuses on recent developments in Britain in which courts have recognised gender deception as a sexual assault by using an autonomy based argument to define deception/fraud that vitiates consent in sexual offences. This Article argues against the defensibility of a framework that criminalizes deception on the basis of an ill defined autonomist based understanding as opposed to a more restrictive standard. It proposes that any adopted standard should incorporate social context and be reflexive of the ways that the state has contributed to these contexts, namely the social conditions under which the deceit takes place as well as …

A Fear About Holistic Justice, Farhang Heydari

Vanderbilt Law Review

It is a great irony of our criminal system that the enforcement of our criminal laws has long had aspects of lawlessness. Although criminal statutes define impermissible conduct by members of the public, they generally offer little guidance for state actors enforcing them.' Officers can choose which offenders to cite or arrest and which to let go. Prosecutors can choose which charges to pursue and what pleas to offer. Executives select whom to pardon and how to allocate enforcement resources. Some see the discretion vested in government actors as a virtue-- a safety valve in a system that punishes too …

Waiting For Godot: Thinking About Criminal Law After Mass Incarceration, Jonathan Simon Professor Of Law,

Vanderbilt Law Review

This brilliant set of close observations and careful analyses on some of the most cutting-edge issues arising in criminal law and reform of the criminal-justice system arrives at a time of great uncertainty as to the direction of change in criminal justice in the United States. After roughly a decade of reform and a significant surge in social movements criticizing the excesses of policing and punishment, the national conversation around crime has shifted back toward fear and a preference for "tough" law-and-order policies. Each one of these essays is packed with a great deal of insight and detail about very …

Criminal Punishment As A Human Right?, Saira Mohamed Professor Of Law,

Vanderbilt Law Review

In the last thirty years, criminal punishment has emerged as a primary tool in service of the protection of international human rights. The development of the field of international criminal law has transformed mass human rights violations into crimes, and the crowning achievement of the field has been the creation of the International Criminal Court. Human rights tribunals, meanwhile, also have embraced the institutions of the criminal law and, through doctrines such as the due diligence standard, have translated states' obligations under human rights instruments into duties to criminally prosecute and punish. Those who were present at the creation might …

Student-Athletes, Universities, And Society: Balancing The Symbiosis, Casey Faucon

Vanderbilt Journal of Entertainment & Technology Law

Elite student-athletes at prominent sports schools are locked in a symbiotic relationship with their universities and with society’s consumers of college sports. For most student-athletes, receiving the benefits of a college education and professional development in exchange for providing their skills and services through athletic participation is mutually beneficial. For these student-athletes, their relationship to the university is still, at its core, educational and professional development based. For the rarefied student-athletes in popular sports, more akin to professional athletes, the nature of their relationship to the university is not always educational. For some of these student-athletes, they attend college and …

Private Equity’S Viable Path To College Athletics Investment: Potential Entity Mechanisms And Antitrust Considerations, Michael Llg

Vanderbilt Journal of Entertainment & Technology Law

The recent House settlement with the National Collegiate Athletic Association was another blow to traditional collegiate governance in an age of uncertainty in college athletics. In the wake of the House settlement and other recent decisions, multiple private equity funds have shown interest in investing on a school-by-school basis or buying out dozens of teams to form a new commercialized league in select sports. Many questions remain with the viability of private investment in college athletics. Unlike traditional private equity investment, schools are 501(c)(3) nonprofit organizations typically operating within an athletic conference. This creates an additional hurdle to for-profit investing …

A Speaker-Based Approach To Content Moderation: The Case Of Livestreaming, Maayan Perel

Vanderbilt Journal of Entertainment & Technology Law

Livestreams on social media represent a unique form of User-Generated Content. Delivering events and experiences in real time, while turning passive listeners into an involved audience, livestreaming facilitates users’ engagement and participation. Streaming promotes freedom of expression and facilitates diversity and pluralism in news reporting. It further allows users to maintain truth and authenticity in a potentially fabricated realm of Generative Artificial Intelligence (AI). Speakers are eager to capitalize on the instantaneous nature of livestreaming; some are using it to document newsworthy events or promote business interests, and others exploiting it by spreading unlawful and malicious content in pursuit of …

Delaware Supreme Court Clarifies Standard Of Review For Advance Notice Bylaw, Robert S. Reder, Noah Nance

Vanderbilt Law School Faculty Publications

Of the myriad corporate defenses erected during the hostile takeover boom of the mid-to-late 1980s, the one that has received the least scrutiny by the Delaware judiciary-at least until recently-is the so-called advance notice bylaw. Advance notice bylaws adopted by corporate boards of directors are "designed and function to permit orderly meetings and election contests and to provide fair warning to the corporation so that it may have sufficient time to respond to shareholder nominations." Kellner v. AIM ImmunoTech Inc., 320 A.3d 229 (Del. July 11, 2024) ("Kellner") (quoting Openwave Sys. Inc. v. Harbinger Cap. Partners Master Fund I, Ltd., …

Much Ado About Critical Race Theory, Matthew Patrick Shaw

Vanderbilt Law School Faculty Publications

This Article offers novel observation and critical intervention in the challenge to state laws which have been adopted, allegedly, to prevent the teaching of critical race theory

(CRT) in public schools. Against the trend of recent scholarship that understands these laws as curricular censorship of topical subjects and seeks to contest their validity on those grounds, this Article more accurately identifies them as pedagogical censorship: Limits on teaching methods, which raise different, potentially more dispositive questions about the states’ educational decision-making authority—questions that the U.S. Supreme Court has long sought to avoid. But exposing these so-called “anti-CRT” laws as neither …

Dual-Class Contracting--A Response To Roberto Tallarita, Brian Broughman

Vanderbilt Law School Faculty Publications

Roberto Tallarita's Dual-Class Contracting confronts a question that scholars and policymakers have largely overlooked: once a firm opts out of "one-share, one-vote," how does it determine the degree and duration of voting inequality? This is not a binary choice between single- and dual-class structures, but a continuum with infinitely many possible configurations. To investigate this question, Tallarita assembled a dataset of 293 corporate charters from dual-class IPOs completed between 1996 and 2022. Despite the wide lati- tude finms have to tailor these arrangements, he finds that most converge on strikingly similar terms-granting holders of high-vote stock majority control with just …

Ethical Sourcing In The Context Of Health Data Supply Chain Management: A Value Sensitive Design Approach, Camille Nebeker Edd, Ms, Ellen Wright Clayton, Et Al.

Vanderbilt Law School Faculty Publications

Abstract

Objective

The Bridge2AI program is establishing rules of practice for creating ethically sourced health data repositories to support the effective use of ML/AI in biomedical and behavioral research. Given the initially undefined nature of ethically sourced data, this work concurrently developed definitions and guidelines alongside repository creation, grounded in a practical, operational framework.

Materials and Methods

A Value Sensitive Design (VSD) approach was used to explore ethical tensions across stages of health data repository development. The conceptual investigation drew from supply chain management (SCM) processes to (1) identify actors who would interact with or be affected by the data …

Domestic Stability And International Trade Order, Sannoy Das

Vanderbilt Law School Faculty Publications

This Article challenges the theoretical frameworks through which we have so far apprehended the crisis of the liberal international trade and economic order, precipitated by relentless unilateral action--whether tariffs or industrial policy--especally in the United States. It argues that the conventional concerns about unilateralism overlook the ways in which unilateraism has been--and can be-- a foundation for international order rather than its antithesis. Our contemporary difficulty is that we typically understand unilateral action as a breach of an international norm. This way of thinking follows from nineteenth-century liberal internationalism. But a deeper tradition in the law of nations shows that …

How Can Policy Balance The Goals Of Transition Acceleration And Justice? Permitting Reform, Large-Scale Renewable Energy, And Host Communities In The United States, J. B. Ruhl, David J. Hess

Vanderbilt Law School Faculty Publications

Implementing energy-transition policies requires building new infrastructure, but the result is often opposition from host communities and associated actors. An important research and policy problem emerges over how to balance two goals that can be in tension: rapidly implementing energy-transition policies and addressing the needs and concerns of local communities, including diverse justice-related issues. This study adopts the perspective that the analysis of this problem benefits from opening the black box of permitting policy reform. The research contributes to the literature on siting conflicts by shifting the focus from explaining conflicts or suggesting targeted policy reforms such as improved engagement …

Metaphysical Quandary Of Synthetic Media Transparency, Darrell G. Mottley

Vanderbilt Journal of Entertainment & Technology Law

Artificial intelligence (AI) is reshaping our view of reality. The interaction between human creativity and generative AI presents both opportunities and challenges concerning free speech and innovation. AI’s transformative impact on perceptions of innovation complicates discussions surrounding creativity and societal expectations. A human-centric perspective in the debate over government-mandated transparency for AI-generated creative works reveals a notable conflict. This conflict arises from the need to balance the protection of human creativity with an apparent obligation to provide information about the human or nonhuman origins of creative works. As society increasingly relies on AI technologies to produce art, literature, and other …

Minors Or Miners? Analyzing Compensation Of User-Generated Content Under The Fair Labor Standards Act, J. Clayton Eaton

Vanderbilt Journal of Entertainment & Technology Law

Roblox is an online platform where users, many of whom are under the age of eighteen, create games, virtual experiences, and digital assets that generate significant revenue for Roblox Corporation, the owner of Roblox. These young content creators are compensated primarily through platform-specific virtual currency, which can be difficult to convert into real-world money due to the high thresholds for conversion and the unfavorable exchange rates. Even though these systems resemble labor relationships, existing legal frameworks and government actions do little to address the creators’ rights to fair compensation. This regulatory gap has allowed platforms like Roblox to operate under …