Law Commons^™

Police Violence Against People With Mental Disabilities: The Immutable Duty Under The Ada To Reasonable Accommodate During Arrest, Carly A. Myers

Vanderbilt Law Review

No abstract provided.

"Plausible Cause": Explanatory Standards In The Age Of Powerful Machines, Kiel Brennan-Marquez

Vanderbilt Law Review

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the "apex" court in the federal judicial system, and so to relate hierarchically to "lower" federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the "percolation" of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

Minor Courts, Major Questions, Michael Coenen, Seth Davis

Vanderbilt Law Review

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court deferred to an agency's controversial interpretation of a key provision of a regulatory statute. Lower courts now apply "Chevron deference" as a matter of course, upholding agencies' reasonable interpretations of ambiguous provisions within the statutes they administer. Recently, however, the Court refused in King v. Burwell to defer to an agency's answer to a statutory question, citing the "deep economic and political significance" of the question itself. The Court in King offered barebones guidance regarding the scope of and rationales for embracing this so-called "major questions exception" …

Undemocratic Restraint, Fred O. Smith, Jr.

Vanderbilt Law Review

For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed prudential limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch's avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine. The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not …

Reading Remedially: What Does "King V. Burwell" Teach Us About Modern Statutory Interpretation, And Can It Help Solve The Problems Of Cercla § 113(H)?, Benjamin Raker

Vanderbilt Law Review

In the latter half of the twentieth century, Congress drafted a law to solve a problem. As decades passed, that problem became increasingly complex. In the new millennium, Congress became increasingly polarized, and increasingly unproductive. In the face of that inaction, the executive branch decided to rely on a provision of that earlier law to address a modern facet of that earlier problem. Or litigants decided to ask a court to rely on a provision of that earlier law to address a modern facet of that earlier problem. The Congress that drafted the law might not have understood this modern …

A Distinction Without A Difference: Convergence In Claim Construction Standards, Laura E. Dolbow

Vanderbilt Law Review

In 2007, a district court found a patent for a medical device valid. While the district court litigation was pending, however, the Patent and Trademark Office ("PTO") found the exact same patent invalid. The Court of Appeals for the Federal Circuit then affirmed both decisions. At first glance, the idea that a patent could be found valid in one forum but invalid in another seems absurd. Yet the law condones these results: district courts and the PTO apply different claim construction standards. The Leahy-Smith America Invents Act of 2011 ("AIA") created new post-grant proceedings at the PTO to challenge patent …

Saving The Political Consensus In Favor Of Free Trade, Timothy Meyer

Vanderbilt Law Review

2016 was the year that the political consensus in favor of liberalized international trade collapsed. Today, across the world, voters' belief that international trade agreements lead to economic inequality threatens to derail ratification of the next generation of trade agreements and undo the substantial gains made under existing arrangements. The United States elected Donald Trump president on a platform of rolling back or renegotiating trade agreements. President Trump has moved to fulfill that promise immediately upon taking office by "unsigning" the Trans-Pacific Partnership ("TPP), the most recent major effort to liberalize global trading rules, and initiating efforts to renegotiate the …

Substantial Guidance Without Substantive Guides: Resolving The Requirements Of Moore V. Texas And Hall V. Florida, Clinton M. Barker

Vanderbilt Law Review

Exempting certain classes of people from the possibility of the death penalty is hardly new; Blackstone noted the common law prohibition on executing the insane, stating that "furiosus furore solum punitur"-madness is its own punishment.' Even then, however, "the reasons for the rule [were] less sure and less uniform than the rule itself." 2 In the United States, Eighth Amendment jurisprudence does little to clarify the reasons behind a particular death penalty exemption because it relies, in part, on the practice of the states to decide what is outside the bounds of acceptable punishment. 3 Because exemptions are thus dependent …

Consumer Bankruptcy, Nondischargeability, And Penal Debt, Abbye Atkinson

Vanderbilt Law Review

This Article examines the issue of categorically nondischargeable debts in the Bankruptcy Code. These debts are excepted from discharge ostensibly because they indicate that the debtor incurred the debt through some misconduct, there is an important public policy at play that requires the debt to be excepted from discharge, or a discharge of certain state-imposed debts raises federalism concerns. Using penal debt as its lens, this Article critiques these analytical frames, arguing that they do not do much work to help explain why some debts are treated as categorically nondischargeable while others that seem to implicate the same concerns are …

No Vip Treatment: Acos Should Not Get Waiver Protection From The Prohibition On Beneficiary Inducement, Soraya Ghebleh

Vanderbilt Law Review

Virgil is known for saying "the greatest wealth is health."' Based on the astronomical amount spent on healthcare, the United States has taken his idea literally-spending more "wealth" will lead to greater "health." In 2006, the United States spent over seven thousand dollars per person annually on healthcare. While that number may not seem very high to spend on an individual level, the total amounted to approximately 2.1 trillion dollars in 2006. In 2014, that number hit three trillion, or seventeen percent of the country's Gross Domestic Product ("GDP"). One justification for spending nearly one-fifth of the United States GDP …

Terrorist Speech On Social Media, Alexander Tsesis

Vanderbilt Law Review

The presence of terrorist speech on the internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of civil liberties. The Supreme Court has erected a bulwark of associational and communicative protections to curtail government from stifling debate through overbroad regulations. On the other hand, the protection of free speech has never been an absolute bar against the regulation of low value expressions, such as calls to violence and …

The Jurisdiction Canon, Aaron-Andrew P. Bruhl

Vanderbilt Law Review

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today's most …

Reconstructing Local Government, Daniel Farbman

Vanderbilt Law Review

After the Civil War, the South faced a problem that was almost entirely new in the United States: a racially diverse and geographically integrated citizenry. In one fell swoop with emancipation, millions of former slaves were now citizens. The old system of plantation localism, built largely on the feudal control of the black population by wealthy white planters, was no longer viable. The urgent question facing both those who sought to reform and those who sought to preserve the "Old South" was: What should local government look like after emancipation? This Article tells the story of the struggle over the …

Causal Responsibility And Patent Infringement, Dmitry Karshtedt

Vanderbilt Law Review

It is not uncommon for multiple parties in the stream of commercemanufacturers, distributors, end users-to be involved in the infringement of a single patent. Yet courts continue to struggle with such scenarios. Attempts to deal with them-particularly when plaintiffs asserted so-called method patents, which cover specific "steps," or actions-have produced results that defy commonsense notions of legal responsibility. In method patent cases, the patentee must clear much higher legal hurdles to prevail against a manufacturer who designed and supplied an infringing device than against an end user who simply bought that device and operated it as intended. The manufacturer can …

Unambiguous Deterrence: Ambiguity Attitudes In The Juvenile Justice System And The Case For A Right To Counsel During Intake Proceedings, Hannah Frank

Vanderbilt Law Review

According to the traditional rational choice theory of criminal behavior, people choose to commit crimes in a rational manner.' They weigh the costs and benefits and make informed decisions to maximize their utility. Under this framework, the state can deter crime through two main avenues: increasing the probability of detection and increasing the punishment if caught, both of which increase the total cost of committing a crime. Recently, however, behavioral insights have begun to cast doubt on traditional rationality assumptions. Lab experiments and empirical studies using real-world data have shown that people exhibit bounded rationality. For example, individuals have limited …

The Chancery Bank Of Delaware: Appraisal Arbitrageurs Expose Need To Further Reform Defective Appraisal Statute, Stanley Onyeador

Vanderbilt Law Review

A dark pool, a form of Alternative Trading System ("ATS"), is a private securities trading platform that-unlike public exchanges such as the New York Stock Exchange-allows participants to execute large block trades with delayed public disclosure. As neither party in a dark market transaction is trading on the public, or "lit," market or knows the identity of its counterparty, dark market trades allow participants to trade anonymously and keep trade strategies from competitors. Further, because dark market trades do not have to be publicly disclosed in real time, the price of a given security will, theoretically, stay relatively stable as …

An Ocean Between Us: The Implications Of Inconsistencies Between The Navigational Laws Of Coastal Arctic Council Nations And The United Nations Convention On The Law Of The Sea For Arctic Navigation, Laura C. Williams

Vanderbilt Law Review

Appraisal rights are codified by section 262 of the Delaware General Corporation Law ("DGCL"), which grants dissenting target shareholders in a merger the right to seek judicially determined fair value for their shares.' Appraisal rights therefore aim to protect dissenting shareholders from majority expropriation. 2 However, a new class of shareholders has emerged, testing the bounds of this remedy. "Appraisal arbitrageurs" are hedge funds who seek to exploit the once seldom- used appraisal remedy by buying target company stock after the announcement of the merger solely to pursue appraisal. These appraisal arbitrageurs have fueled the ongoing resurgence of appraisal litigation, …

Aging Injunctions And The Legacy Of Institutional Reform Litigation, Jason Parkin

Vanderbilt Law Review

Institutional reform litigation has been an enduring feature of the American legal system since the Supreme Court's ruling in Brown v. Board of Education. The resulting injunctions have transformed countless bureaucracies notorious for resisting change, including public school systems, housing authorities, social services agencies, correctional facilities, and police departments. But these injunctions face an uncertain future. The Supreme Court has held that institutional reform injunctions must be easier to terminate than all other injunctions issued by the federal courts. Some institutional reform injunctions go unenforced or are forgotten entirely. Others expire due to sunset provisions. At the same time, doctrinal …

Monopolies In Multidistrict Litigation, Elizabeth Chamblee Burch

Vanderbilt Law Review

When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs' lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs' claims and rewards them richly in common-benefit fees. It's no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again.

Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves at …

The Securities Black Market: Dark Pool Trading And The Need For A More Expansive Regulation Ats-N, Brian P. Baxter

Vanderbilt Law Review

Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve "substantive justice" and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims-are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions …

Sector Agnosticism And The Coming Transformation Of Education Law, Nicole S. Garnett

Vanderbilt Law Review

Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private school choice devices like vouchers, tax credits, and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors-discussed in detail below-that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public …

A Regulatory Theory Of Legal Claims, Maria J. Glover

Vanderbilt Law Review

Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve "substantive justice" and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims-are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions …

Dynamic Patent Disclosure, Jeanne C. Fromer

Vanderbilt Law Review

Those who tout the role of disclosure as a benefit of the patent system emphasize-as the Supreme Court has-that the information in patents "add[s] to the general store of knowledge [and is] of such importance to the public weal that the Federal Government is willing to pay the high price of ... exclusive use for its disclosure, which disclosure ... will stimulate ideas and the eventual development of further significant advances in the art." As I excavate in this Article, the current state of patent disclosure-which many think is poor and does not achieve its objective of stimulating innovation-is impoverished …

Patent Disclosures And Time, Timothy R. Holbrook

Vanderbilt Law Review

Patents by their very nature are pregnant with considerations of time. The exclusive rights they afford only last for a finite period- generally from issuance until twenty years from the filing date of the application. Moreover, since patents necessarily engage with the evolution of technology, patents reflect various "snap shots" in time that reflect the state of the art at a particular moment. Patent law must constantly wrestle with time. Many of these topics have been explored extensively in both judicial decisions and the literature. The most obvious example of considering the temporal aspect of patent law is ... obviousness. …

Disclosing Designs, Jason Du Mont, Mark D. Janis

Vanderbilt Law Review

The disclosure function figures prominently in many accounts of the utility patent system. But what of its role in the design patent system? Should it be dismissed as trivial? And if so, what are the practical consequences for design patent doctrine in view of the fact that the doctrines that implement the disclosure function in utility patent law also apply to design patents by statutory mandate? The disclosure theory posits that patent documents disclose technical information that serves as a quid pro quo for the patent grant. Even aside from controversies about whether the disclosure function is robust for utility …

Photocopies, Patents, And Knowledge Transfer: "The Uneasy Case" Of Justice Breyer's Patentable Subject Matter Jurisprudence, Dmitry Karshtedt

Vanderbilt Law Review

One aspect of Justice Stephen Breyer's discomfort with patents, as expressed in his opinion for the Supreme Court in Mayo v. Prometheus and his dissent from the order dismissing certiorari in LabCorp v. Metabolite, is strikingly similar to one of his critiques of copyright law in The Uneasy Case for Copyright, a well-known article he wrote as Professor Breyer more than forty-five years ago. In The Uneasy Case, Breyer argued that the burdens on duplication of technical articles imposed by copyright law restrict the flow of information and prevent scientists from enjoying spillover benefits of published research. His patent opinions …

Contextualizing Patent Disclosure, Colleen V. Chien

Vanderbilt Law Review

One of the main justifications for a patent system is that patents disclose useful technical information that others can learn from. However, patents are not performing this function well. The average patent is written in legalese, uses vague language, and is hard to connect to commercial activity. Legal scholars have responded with calls to improve the patent document through better writing, more examples, and better enforcement of patent doctrines. The courts have sought to ensure that patent specifications are robust and justify the grant of a monopoly. This follows from the Supreme Court's characterization of technical teachings within a patent …

Nontechnical Disclosure, J. Jonas Anderson

Vanderbilt Law Review

One of the primary goals of the patent system is the broad dissemination of technical knowledge. Patent law forces inventors to disclose how their inventions work. Inventors seeking a patent are required to describe "the manner and process of making and using" the patented invention. Additionally, a patent must "enable any person skilled in the art.., to make and use" the invention. Despite this explicit statutory disclosure requirement, patent law could do better at ensuring that patents convey useful information to the public. Academics have vigorously debated about whether and to what degree the patent system performs its disclosure function. …

Legal Fictions And The Role Of Information In Patent Law, Craig A. Nard

Vanderbilt Law Review

In his 1974 Nobel Prize Lecture, Freidrich Hayek admonished us, as he did throughout so much of his work, about the limitations of our knowledge and stressed what knowledge we do have should be used "not to shape the results as the craftsman shapes his handiwork, but rather to cultivate a growth by providing the appropriate environment." This analogy-what Hayek referred to as the "pretense of knowledge"-is germane to legal systems where the common law plays a prominent role. Patent law is such a field. Judicial stewardship of the patent space can be seen as an institutional advantage, one that …

Patent Silences, Dan L. Burk

Vanderbilt Law Review

A great deal has been said in recent years about patent disclosure. But to say that there is a disclosure function in the patent system implies that there is non-disclosure functioning in the patent system as well. For some information to be disclosed in a patent, other information must go undisclosed; for some things to be included, other things must be excluded. In this article I review the surprising number of doctrines that allow and encourage patent applicants to remain silent about aspects of their inventions. I find that some silences in patents are inadvertent, while some are deliberate; some …