Law Commons^™

Misaligned Lawmaking, Timothy Meyer

Vanderbilt Law Review

This Article makes three contributions. First, it introduces the Misalignment Thesis in the context of U.S. trade policy. The Misalignment Thesis is a descriptive claim about how the structure of a legislative bargain influences the long-term stability and effectiveness of that bargain. Second, the Article introduces the normative corollary to the Misalignment Thesis: if political stability hinges on respecting the legislative bargain, interdependent policies should be subject to renegotiation on the same timeline and implementation on the same terms. In light of this prescription, I offer three concrete proposals for aligning trade liberalization and trade adjustment assistance in order to …

Inflated Private Offering: Regulating Corporate Insiders And Market Moving Disclosures On Social Media, Marisa Papenfuss

Vanderbilt Law Review

This Note will explore Regulation FD’s development, from its enactment in 2000 to its status in the age of social media. It will ultimately propose a safe harbor provision that clearly delineates when issuers and corporate insiders are not subject to the regulation’s requirements. Part I provides an overview of Regulation FD’s provisions and enforcement as well as the SEC’s subsequent guidance, which attempts to elucidate the regulation’s application to new technologies. Part II analyzes the specific problems that arise when Regulation FD is applied to information distributed through social media and assesses scholars’ proposed solutions to these problems. Lastly, …

Consolidating Space: A Proposal To Establish A Central Forum For The Settlement Of Space-Related Disputes, Matthew J.P. Horton

Vanderbilt Journal of Entertainment & Technology Law

Over sixty years have passed since the Soviet Union launched Sputnik 1 into Earth's orbit. In that time, humanity's presence in space has flourished as technology advanced and new actors entered the scene. Despite this progress, the regime upon which the world relies to resolve space disputes has hardly changed in the fifty years of its existence. As private enterprise floods into the final frontier, how humanity will resolve the inevitable, extraterrestrial disputes is becoming a pressing concern.

The Outer Space Treaty establishes three fundamental principles of space law: (1) space is sovereignless, (2) space exploration and use must be …

Diversity Of Shareholder Stewardship In Asia: Faux Convergence, Gen Goto, Alan K. Koh, Dan W. Puchniak

Vanderbilt Journal of Transnational Law

Since the UK adopted the world's first stewardship code in 2010, stewardship codes have proliferated across Asia. Given the UK Code's prominence, it is tempting to assume that every other stewardship code performs the same function as the UK Code. This assumption belies the truth: all these codes--regardless of whether they have in fact drawn inspiration from the UK Code--have taken different trajectories due to each adopting its jurisdiction's distinctive institutional and legal context.

Using empirical evidence and in-depth case studies of stewardship in Japan and Singapore, this Article reveals how any reception of United Kingdom-style stewardship concepts is only …

Unintended Consequences For Reversing Rapprochement: Is The Us Government Liable For A Loss Of Us Property In Cuba?, David Kolansky

Vanderbilt Journal of Transnational Law

In 2014, the United States announced a historic reopening of ties with Cuba. This effort at rapprochement included restoring diplomatic relations and easing regulatory restrictions to facilitate greater business, trade, travel, and communication between the two nations. However, the US government's decision in 2017 to reverse course and reinstate the economic embargo against Cuba could result in significant legal and financial consequences for both US claimants who hold property in Cuba and the US government. One issue that arises is whether US corporations and individuals, who invested in property in Cuba following the Obama-era easing of restrictions, have a constitutional …

A Sinking World: A Model Framework For Climate Change Adaptation Measures In Coastal Cities, Emma Rose

Vanderbilt Journal of Transnational Law

Climate change has already begun wreaking havoc on coastal communities across the globe, including Miami, Venice, and the Philippines. Adaptation mechanisms may be the most powerful weapons these communities have to combat sea level rise and the other disastrous effects of a warming planet. However, these adaptation programs must fit within each nation's unique federal and local regulatory schemes. Additionally, when they are funded by the federal government or foreign sources, these communities may have to sacrifice some autonomy over their implementation. While adaptation strategies can be broken down into three primary modes--resistance, transformation, and retreat--the most effective combination of …

Venture Capital In China And India: Does Business Form Matter?, Lin Lin, Umakanth Varottil

Vanderbilt Journal of Transnational Law

This Article reevaluates the importance of business organizational forms with regard to venture capital funds by exploring two major Asian markets, China and India. Evidence suggests that the limited partnership is the leading business form among Chinese venture capital funds. On the other hand, Indian venture capital funds are predominantly organized as private noncharitable trusts. These findings challenge the orthodox view that the limited partnership is the preferred business form for venture capital funds. Instead, Indian venture capital funds have used the trust vehicle effectively and regard it as a functional equivalent to limited partnerships. This Article argues that the …

The Charming Betsy Canon, American Legal Doctrine, And The Global Rule Of Law, Justin Hughes

Vanderbilt Journal of Transnational Law

In the 1803 The Schooner Charming Betsy case, Chief Justice Marshall announced a canon of interpretation that "an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains." The Charming Betsy canon has become as venerable as its name is felicitous: as recently as 1988 the Supreme Court noted that the doctrine "has for so long been applied by this Court that it is beyond debate."

After exploring the traditional justifications for Charming Betsy, this Article proposes that the canon should be justified, not just by Congressional intent or separation …

Mozambican Illegal Debts: Testing The Odious Debt Doctrine, Mauro Megliani

Vanderbilt Journal of Transnational Law

In June 2019, the Constitutional Council of Mozambique delivered a judgment declaring a financial transaction arranged by the government in violation of the parliamentary prerogatives in budgetary matters unconstitutional. This was only the tip of an iceberg consisting of a series of transactions tainted with corruption. In the face of this illegality, many antidebt campaigners have invoked the application of the odious debt doctrine to block the enforcement of contractual claims and the availability of restitutionary remedies. Under the odious debt doctrine, a debt is odious if, in the awareness of the creditors, it is contracted without the consent of …

Anticipating Accommodation, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

In theory, a reasonable accommodation mandate can remedy worker marginalization by requiring employers to make small adjustments in the workplace that have big payoffs for employees. But in reality, a reasonable accommodation mandate may be an empty promise. Reasonable accommodation is the hallmark feature of the Americans with Disabilities Act ("ADA "), yet decades of empirical studies indicate that wage and employment outcomes of disabled individuals have not improved--and may have even worsened--since the Act's passage. Economists have been quick to blame the reasonable accommodation mandate for the ADA's failure, but they have lacked sufficient data to discern both what …

The Specific Consumer Expectations Test For Product Defects, W. Kip Viscusi, Clayton J. Masterman

Vanderbilt Law School Faculty Publications

The consumer expectations test in products liability law holds firms liable for producing goods that are more dangerous than the reasonable consumer would anticipate. But judicial experience in the majority of states that have utilized the consumer expectations test demonstrates that it is ambiguous and impossible to apply predictably. The test is ill-suited for regulating complex products or markets with heterogeneous consumers; moreover, the test requires courts to expend significant resources to identify consumers' ex ante beliefs about product risks, even when consumers lacked tangible beliefs about products at the time of purchase. The other major test that courts apply …

The Indian Securities Fraud Class Action: Is Class Arbitration The Answer?, Brian T. Fitzpatrick, Randall S. Thomas

Vanderbilt Law School Faculty Publications

In 2013, India enacted one of the most robust private enforcement regimes for securities fraud violations in the world. Unlike in most other countries, Indian shareholders can now initiate securities fraud lawsuits on their own, represent all other defrauded shareholders unless those shareholders affirmatively opt out, and collect money damages for the entire class. The only thing missing is a better financing mechanism: unlike the United States, Canada, and Australia, India does not permit contingency fees, so class action lawyers cannot front the costs of litigation in exchange for collecting a percentage of what they recover. On the other hand, …

Do Founders Control Startup Firms That Go Public?, Brian Broughman, Jesse M. Fried

Vanderbilt Law School Faculty Publications

American competition policy has four big problems: Amazon, Apple, Facebook, and Google. These companies each reign over a sector of the digital marketplace, controlling both the consumer experience and the possibility of competitive entry. This Essay argues that the conventional account of how antitrust law allowed this consolidation of market power - that it failed to evolve to address the market realities of the technology sector- is incomplete. Not only did courts fail to adapt antitrust law from its smoke-stack roots, but they gave big tech special dispensation under traditional antitrust doctrine. Swayed by prevailing utopic views about digital markets …

The Impact Of Cannabis Access Laws On Opioid Prescribing, W. Kip Viscusi, Benjamin J. Mcmichael, R. Lawrence Van Horn

Vanderbilt Law School Faculty Publications

While recent research has shown that cannabis access laws can reduce the use of prescription opioids, the effect of these laws on opioid use is not well understood for all dimensions of use and for the general United States population. Analyzing a dataset of over 1.5 billion individual opioid prescriptions between 2011 and 2018, which were aggregated to the individual provider-year level, we find that recreational and medical cannabis access laws reduce the number of morphine milligram equivalents prescribed each year by 11.8 and 4.2 percent, respectively. These laws also reduce the total days’ supply of opioids prescribed, the total …

Governing Cascade Failures In Complex Social-Ecological-Technological Systems: Framing Context, Strategies, And Challenges, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Cascade failures are events in networked systems with interconnected components in which failure of one or a few parts triggers the failure of other parts, which triggers the failure of more parts, and so on. Cascade failures occur in a wide variety of familiar systems, such as electric power distribution grids, transportation systems, financial systems, and ecosystems. Cascade failures have plagued society for centuries. However, modern social-ecological-technological systems (SETS) have become vast, fast moving, and highly interconnected, exposing these systems to cascade failures of potentially global proportions, spreading at breathtaking speed, and imposing catastrophic harms. The increasing potential for cascade …

Money, Private Law, And Macroeconomic Disasters, Morgan Ricks

Vanderbilt Law School Faculty Publications

Last year, Ben Bernanke published a blockbuster paper whose importance to the emerging field of law and macroeconomics would be hard to overstate. Titled The Real Effects of Disrupted Credit: Evidence from the Global Financial Crisis,' the paper gets to a vital threshold question for financial stability policy: through what channel or channels do financial crises crush the real economy? Bernanke pits what he calls the "household leverage" narrative of the Great Recession of 2007 to 2009 against what he calls the "financial fragility" narrative. His empirical analysis comes down firmly on the side of the latter narrative. In this …

Misaligned Lawmaking, Timothy Meyer

Vanderbilt Law School Faculty Publications

This Article makes three contributions. First, it introduces the Misalignment Thesis in the context of U.S. trade policy. The Misalignment Thesis is a descriptive claim about how the structure of a legislative bargain influences the long-term stability and effectiveness of that bargain. Second, the Article introduces the normative corollary to the Misalignment Thesis: if political stability hinges on respecting the legislative bargain, interdependent policies should be subject to renegotiation on the same timeline and implementation on the same terms. In light of this prescription, I offer three concrete proposals for aligning trade liberalization and trade adjustment assistance in order to …

Encomium For Karen Rothenberg, Ellen W. Clayton

Vanderbilt Law School Faculty Publications

Karen is also a zealous advocate in the very best sense of the word. After Struewing's article appeared, she wrote an editorial that appeared in multiple newspapers arguing that women with these variants should not lose their insurance. She became deeply involved in the National Action Plan for Breast Cancer, a powerful grass roots organization. Additionally, she became involved at the National Institutes of Health and addressed, often in leadership roles, such issues to develop strategies to prevent genetic discrimination for individuals with variants that increased the risk of developing cancer, to create tools to obtain meaningful informed consent for …

Unjust Timing Limitations In Genetic Malpractice, Ellen W. Clayton, Gary Marchant, Bonnie Leroy, Lauren Clatch

Vanderbilt Law School Faculty Publications

As genomic data are increasingly being collected and applied in clinical care, physicians, laboratories, and other health care providers are more frequently being sued for alleged medical malpractice or negligence. Because the genetic underpinnings of an existing or future health condition may not be immediately apparent, such cases sometimes raise unique timing issues involving the applicable statute of limitations, statute of repose, or statutory notification requirements. Although these timing limitations on when a lawsuit can be brought have important policy rationales and justifications, such as helping to protect providers from open-ended liability, their application to genetic liability cases may sometimes …

Unraveling Williams V. Illinois, Edward K. Cheng, Cara C. Mannion

Vanderbilt Law School Faculty Publications

This Essay addresses one of the key evidentiary problems facing courts today: the treatment of forensic reports under the Confrontation Clause. Forensics are a staple of modern criminal trials, yet what restrictions the Confrontation Clause places on forensic reports is entirely unclear. The Supreme Court’s latest decision on the issue, Williams v. Illinois, sowed widespread confusion among lower courts and commentators, and during the 2018 Term, Justices Gorsuch and Kagan dissented to the denial of certiorari in Stuart v. Alabama, a case that would have revisited (and hopefully clarified) Williams.

Our Essay dispels the confusion in Williams v. Illinois. …

Deal Breakage In Domestic And Cross-Border Mergers, Morgan Ricks

Vanderbilt Law School Faculty Publications

This Article presents a newly constructed mergers and acquisitions (M&A) data set that can support detailed analysis of deal outcomes, including deal breakage. The main novelty of the data set is a detailed classification scheme for characterizing deal outcomes, using information drawn from public announcements and news reports. The data set also includes a number of variables, hand gathered from press releases and merger agreements, that are unavailable in existing data sets in reliable form, or at all. The data set consists of all definitive, signed M&A transactions involving US public company targets with a deal value of at least …

(What We Talk About When We Talk About) Judicial Temperament, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Judicial temperament is simultaneously the thing we think all judges must have and the thing that no one can quite put a finger on. Extant accounts are scattered and thin, and either present a laundry list of desirable judicial qualities without articulating what (if anything) unifies the list or treat temperament as a fundamentally mysterious quality that a judge either does or does not have. Resting so much—selection, evaluation, discipline, even removal—on such an indeterminate concept is intellectually and practically intolerable. Polarized debates over Justice Kavanaugh’s fitness to sit on the Supreme Court made clear just how badly we need …

What Happens When The Green New Deal Meets The Old Green Laws?, J. B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

The multi-faceted infrastructure goals of the Green New Deal will be impossible to achieve in the desired time frames if the existing federal, state, and local siting and environmental protection statutory regimes are applied. Business, labor, property rights, environmental protection, and social justice interests will use them to grind the Green New Deal to a snail's pace. Using the renewable energy transition as the infrastructure case study, this Essay is a call to arms for the need to design New Green Laws for the Green New Deal. Part I briefly summarizes what we are learning about the pace and magnitude …

Beyond Green Infrastructure--Integrating The Ecosystem Services Framework Into Urban Planning Law And Policy, J. B. Ruhl

Vanderbilt Law School Faculty Publications

Despite the heavy emphasis in legal scholarship on federal and state governance of environmental policy, cities have had their champions as well. Legal scholars who stand out as having defined a position for local governance in the environmental domain include John Nolan, Jamison Colburn, Keith Hirokawa, Tony Arnold, and, on any such list, Julian Juergensmeyer. Indeed, in the United States and many other nations, cities have been leaders in many of the looming issues of environmental policy, including those with global dimensions, like climate change mitigation, and surely those with local focus, like climate change adaptation. In the United States, …

Are Publicly Traded Corporations Disappearing?, Margaret Blair

Vanderbilt Law School Faculty Publications

Corporate law scholars and economists have expressed concern recently about the fact that the number of publicly traded corporations in the United States has declined significantly since a peak in the late 1990s. In this Essay, in honor of the late Professor Lynn Stout, who devoted much of her career to the study of large publicly traded corporations, I show that despite a decline in the number of such corporations in the last two decades, they collectively account for about the same share of total economic activity as they have for the last six decades. While there has been turnover …

Conference On Best Practices For Managing Daubert Questions, Edward K. Cheng, D. J. Capra, Et Al

Vanderbilt Law School Faculty Publications

When we are talking about overstatement, is it so apparent that surely the jury could understand that? Or that on cross at trial, would the opposing counsel make that apparent so that the jury would deal with it on its own? Or is it overstatement, in ways that you normally see, in that it becomes opaque and therefore misleading to the jury and the jury would never be able to figure it out?

The Sacred Fourth Amendment Text, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The Supreme Court's jurisprudence governing the Fourth Amendment's "threshold"--a word meant to refer to the types of police actions that trigger the amendment's warrant and reasonableness requirements--has confounded scholars and students alike since Katz v. United States. Before that 1967 decision, the Court's decisions on the topic were fairly straightforward, based primarily on whether the police trespassed on the target's property or property over which the target had control. After that decision-which has come to stand for the proposition that a Fourth Amendment search occurs if police infringe an expectation of privacy that society is prepared to recognize as reasonable--scholars …

Our Kardashian Court (And How To Fix It), Suzanna Sherry

Vanderbilt Law School Faculty Publications

The Supreme Court is broken. After cataloging its dysfunctions, this Article suggests a contributing cause and proposes a solution. The contributing cause is that Justices have become celebrities, and, like other celebrities, play to their fan base. The solution is to limit their opportunities to use their official status to do so: Congress should pass a law prohibiting concurring or dissenting opinions and requiring each case to be decided by an unsigned opinion that does not disclose the number of Justices who join it. The Article outlines the advantages of such a law and considers possible objections to it, including …

A Global Assessment Of The Law And Policy, J. B. Ruhl, J. Salzman

Vanderbilt Law School Faculty Publications

Through building waves of legal scholarship and litigation, a group of legal academics and practitioners is advancing a theory of the public trust doctrine styled as the “atmospheric trust.” The atmospheric trust would require the federal and state governments to regulate public and private actors to reduce greenhouse gas emissions to abate climate change.

The Very Brief History Of Decentralized Blockchain Governance, Michael Abramowicz

Vanderbilt Journal of Entertainment & Technology Law

A new form of blockchain governance involving the use of formal games that incentivize participants to identify focal resolutions to normative questions is emerging. This symposium contribution provides a brief survey of the literature proposing and critiquing the use of such mechanisms of decentralized decision-making, and it evaluates early laboratory and real-world experiments with this approach.