Law Commons^™

Regulatory Adjudication, Marcia L. Mccormick

All Faculty Scholarship

Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the …

Bentham On Stilts: The Bare Relevance Of Subjectivity To Retributive Justice, Dan Markel, Chad Flanders, David C. Gray

All Faculty Scholarship

In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.

Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don’t doubt the possibility that different people will react differently to the same infliction of punishment. …

The One State Solution To Teaching Criminal Law, Or Leaving The Common Law And The Mpc Behind, Chad Flanders

All Faculty Scholarship

How should criminal law be taught to first-year law students? Professors preparing their classes for the first time, and even veterans of many semesters of criminal law, find themselves facing a dilemma. On the one hand, the common law is no longer good - law in nearly every state; it has been superseded by statute. Even states that leave a large role for the common law usually have a combination of common law and statutory law or strongly limit the scope of the common law. On the other hand, there is no uniform code that actually exists as law in …

A Prisoner's Constitutional Right To Medical Information: Doctrinally Flawed And A Threat To State Informed Consent Law, Robert Gatter

All Faculty Scholarship

White v. Napoleon and its progeny recognize a substantive due process right to receive the disclosure of medical treatment information. While each case involves a prisoner receiving treatment while in custody, the constitutional right described in those cases is not limited to prisoners. Instead, the right is described as belonging to all individuals. Consequently, this line of cases is poised to interfere with the disclosure standards that operate in state informed consent law in the many instances where state action exists. This Article argues that the substantive due process right recognized in White should be overturned. The right is based …

Situating Inherent Power Within A Rules Regime, Samuel P. Jordan

All Faculty Scholarship

My goal in this short Essay is to describe the way that inherent power is understood and applied within our procedural framework, and to suggest the need for a more robust account of the contemporary relationship between inherent power and formal procedural rules. Part I describes two roles – one legitimate and one not – that inherent power can play vis-à-vis the rules. Part II examines how those roles are often confused or manipulated, with the result that inherent power remains available to justify judicial action in an undesirably large class of cases. Finally, Part III explores ways to clarify …

Human Capital And Transfer Taxation, Kerry A. Ryan

All Faculty Scholarship

This article addresses the question of whether education and healthcare transfers should be included in the federal gift tax base. It initially frames the issue in two ways: (1) through the lens of a proposal by the American Law Institute to exempt all “transfers for consumption” from gift taxation, and (2) within the context of a debate among economists about whether such expenditures should be included in the definition of “intergenerational transfers” for purposes of determining the total share of such transfers in U.S. accumulated wealth. Finding the first lens unsatisfactory on its own doctrinal terms and the second lens …

Class Dismissed: Contemporary Judicial Hostility To Small-Claims Consumer Class Actions, Myriam E. Gilles

Articles

I start from the view that small-value consumer claims are a primary reason that class actions exist, and that without class actions many - if not most - of the wrongs perpetrated upon small-claims consumers would not be capable of redress. It would then seem to follow that the class action device should be readily available in small-claims consumer cases. And yet, over the past decade, federal district courts have repeatedly declined to certify class actions on grounds that are specific to small-claims consumer cases. Foremost among those grounds is the notion that the federal class action rule carries within …

Rethinking Guardianship (Again): Substituted Decision Making As A Violation Of The Integration Mandated Of Title Ii Of The Americans With Disabilities Act, Leslie Salzman

Articles

In every state, when an adult has a diminished capacity to make decisions about personal affairs or property management, a court may transfer the individual’s right to make decisions to a guardian. This Article argues that, in most cases, it would be preferable to support decision making rather than supplant it through guardianship, and then seeks to locate a right to receive such support as a less restrictive alternative to the substituted decision making that characterizes guardianship.

Building on the reasoning in Olmstead v. L.C. and subsequent decisions interpreting the Americans with Disabilities Act’s integration mandate, this Article argues that …

[Introduction To] The Language Of Law And The Foundations Of American Constitutionalism, Gary L. Mcdowell

Bookshelf

For much of its history, the interpretation of the United States Constitution presupposed judges seeking the meaning of the text and the original intentions behind that text, a process that was deemed by Chief Justice John Marshall to be “the most sacred rule of interpretation.” Since the end of the nineteenth century, a radically new understanding has developed in which the moral intuition of the judges is allowed to supplant the Constitution’s original meaning as the foundation of interpretation. The Founders’ constitution of fixed and permanent meaning has been replaced by the idea of a “living” or evolving constitution. Gary …

Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur

Articles

In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does …

Theatres Of The Book: Covering, Flaunting, Marketing,Author And Text, Peter Goodrich

Articles

No abstract provided.

Welfare As Happiness, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Articles

Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article …

Taking Prevention Seriously: Developing A Comprehensive Response To Child Trafficking And Sexual Exploitation, Jonathan Todres

Vanderbilt Journal of Transnational Law

Millions of children are victims of trafficking and commercial sexual exploitation each year. Governments have responded with a range of measures, focusing primarily on seeking to prosecute perpetrators of these abuses and offering assistance to select victims. These efforts, while important, have done little to reduce the incidence of these forms of child exploitation. This Article asserts that a central reason why efforts to date may not be as effective as hoped is that governments have not oriented their approaches properly toward prioritizing prevention--the ultimate goal--and addressing these problems in a comprehensive and systematic manner. Instead, efforts to date have …

Cyber-Apocalypse Now: Securing The Internet Against Cyberterrorism And Using Universal Jurisdiction As A Deterrent, Kelly A. Gable

Vanderbilt Journal of Transnational Law

Cyberterrorism has become one of the most significant threats to the national and international security of the modern state, and cyberattacks are occurring with increased frequency. The Internet not only makes it easier for terrorists to communicate, organize terrorist cells, share information, plan attacks, and recruit others but also is increasingly being used to commit cyberterrorist acts. It is clear that the international community may only ignore cyberterrorism at its peril.

The primary security threat posed by the Internet is caused by an inherent weakness in the TCP/IP Protocol, which is the technology underlying the structure of the Internet and …

The Responsibility For Post-Conflict Reforms, Dr. Eric D. Brabandere

Vanderbilt Journal of Transnational Law

The increasing involvement of international actors in various forms of international missions set up to supervise reconstruction or peace-building processes has raised many questions with respect to both the legal framework applicable to such activity and the authority to engage in such reforms. Recently, new normative propositions on the subject have been labelled jus post bellum. This Article challenges the usefulness and accuracy of jus post bellum as a legal concept. Such theories either amount to an explicit or implicit challenge of the crucial objectivity of the post-conflict phase by linking the rights and obligations of foreign actors to the …

Greater Mutual Fund Transparency In India, Stephen P. Smith

Vanderbilt Journal of Transnational Law

India has been one of the darlings among emerging market economies over the past decade. It has experienced dizzying economic growth that has lifted great numbers of Indians out of poverty and changed the economic outlook of much of its populace. For the first time, many Indians have excess funds to save or invest, and the Indian mutual fund industry has enjoyed an explosion in popularity as a result of this economic boom, particularly among first time mutual fund investors.

One of the most important mechanisms for investor protection in any capital market is the provision of information to investors …

Cultivating Farmers' Rights: Reconciling Food Security, Indigenous Agriculture, And Trips, Lauren Winter

Vanderbilt Journal of Transnational Law

This Note discusses strategies for cultivating Farmers' Rights internationally. The rise of international treaties awarding intellectual property rights in plant genetic resources to plant breeders brought with it an erosion of agricultural biodiversity as well indigenous farmer lifestyles. Farmers' Rights emerged in recognition of the role of traditional farmers play in conserving, creating, and promoting genetic diversity in the food supply and of the importance of maintaining traditional agriculture practices. This Note argues that Farmers' Rights can be realized internationally through concerted effort. The Note proposes that Farmers' Rights could be realized if national governments create laws and infrastructure that …

The Responsibility To Protect And The Decline Of Sovereignty: Free Speech Protection Under International Law, William Magnuson

Vanderbilt Journal of Transnational Law

State sovereignty has long held a revered post in international law, but it received a blow in the aftermath of World War II, when the world realized the full extent of atrocities perpetrated by the Nazis on their own citizens. In the postwar period, the idea that individuals possessed rights independent of their own states gained a foothold in world discussions, and a proliferation of human rights treaties guaranteeing fundamental rights followed. These rights were, for the most part, unenforceable, though, and in the 1990s, a number of humanitarian catastrophes (in Kosovo, Rwanda, and Somalia) galvanized the international community to …

The Conflict Between The Alien Tort Statute Litigation And Foreign Amnesty Laws, Carlee M. Hobbs

Vanderbilt Journal of Transnational Law

Since the landmark case Filartiga v. Pena-Irala, foreign individuals have increasingly utilized the Alien Tort Statute to raise claims of human rights violations in the United States federal courts. Defendants, however, have alleged that principles of international comity necessitate dismissal of the suit when the foreign country in which the human rights violations occurred has granted defendants amnesty. While the doctrine of international comity permits dismissal if the case requires a federal court to adjudicate the internal affairs of a foreign country, the Supreme Court held, in Sosa v. Alvarez-Machain, that the Alien Tort Statue grants U.S. courts jurisdiction over …

Superior Responsibility Of Civilians For International Crimes Committed In Civilian Settings, Yael Ronen

Vanderbilt Journal of Transnational Law

This Article examines the notion of superior responsibility of civilians for international crimes committed in civilian settings. The doctrine of superior responsibility grew out of the military doctrine of command responsibility, and its evolution is informed by this origin. Jurisprudence and academic writers emphasize that the doctrine is applicable to civilian superiors of military or paramilitary organizations, but there has never been a detailed analysis of the doctrine's relevance and applicability in civilian settings. The Article argues that the claim that customary international law extends the doctrine of superior responsibility to civilians, let alone in civilian settings, is inaccurate. In …

Private Certification Versus Public Certification In The International Environmental Arena, Patricia A. Moye

Vanderbilt Journal of Transnational Law

In recent decades, the world's various fisheries have seen a number of problems, primarily depletion of fish stocks due to overfishing. While the UN has created some soft law, including sustainable fishing standards, to deal with the problem of fisheries depletion, no binding international laws currently exist. Several entities have decided to deal with the problem on their own, through eco-labeling programs. The Marine Stewardship Council, a private entity not directly affiliated with the government of any country, has created such a program. In addition, some governments have created similar programs, including Japan through its Marine Eco-Label Japan program. While …

Legal Techniques For Dealing With Scientific Uncertainty In Environmental Law, Jorge E. Vinuales

Vanderbilt Journal of Transnational Law

This Article analyzes how scientific uncertainty is handled in international environmental law. It identifies ten legal techniques used for this purpose (i.e., precautionary reasoning; framework-protocol approach; advisory scientific bodies; law-making by treaty bodies; managerial approaches to compliance; prior informed consent; environmental impact assessment and monitoring; provisional measures; evidence; and facilitated liability) and links them to four different stages of development of environmental regimes (i.e., advocacy, design, implementation, and reparation). These techniques are illustrated by reference to some fifteen environmental treaties and other instruments as well as through a detailed case study focusing on the climate change regime.

Judicial Review Under A British War Powers Act, David Jenkins

Vanderbilt Journal of Transnational Law

This Article considers how U.K courts might exercise review under a hypothetical British "war powers act," in the event that the current Labour Government or an incoming Tory one responds to calls to reform the Royal War Prerogative and Parliament passes such a statute. The Article undertakes a comparative study, analyzing how U.S. courts apply the political question doctrine in war powers cases. It suggests that they apply the doctrine in a way that assesses the justiciability of the particular subject matter of a case, thereby supporting deference to the political branches in most war powers cases without foreclosing review …

A Global Water Apartheid: From Revelation To Resolution, Itzchak Kornfeld

Vanderbilt Journal of Transnational Law

It is well settled in international human rights law that a human right to water exists. Nevertheless, to date, there has been little scholarship about what the practical contours of the right should be. If legal tools are to benefit the world's poor and disenfranchised, they cannot be void due to the impossibility of implementation. This is the problem with the purported human right to water: it is quixotic.

This Article proposes a pragmatic solution to the potable water problem for the world's poor. The solution offered here is based on a model of privatized access to water grounded in …

Standardizing The Principles Of International Election Observation, Jonathan Misk

Vanderbilt Journal of Transnational Law

On October 27, 2005, thirty-two international nongovernmental organizations (INGOs) and intergovernmental organizations (IGOs) signed the Declaration of Principles for International Election Observation, drafted with the assistance of the United Nations. For nearly four decades before the signing of the Declaration, international election observation rapidly gained acceptance as a legitimate method of guaranteeing free and fair elections and thus promoting lasting democratic institutions. Many INGOs and IGOs conducting observation missions--including the Organization for Security and Cooperation in Europe, the Organization of American States, the South African Development Community, and the Carter Center-independently developed standards for their observers to follow. As international …

The Object And Purpose Of A Treaty: Three Interpretive Methods, David S. Jonas, Thomas N. Saunders

Vanderbilt Journal of Transnational Law

This Article examines the three most prominent uses of the term "object and purpose" within the Vienna Convention on the Law of Treaties and, in each instance, offers a new method for applying the term. First, the rule that a treaty be interpreted "in light of" its object and purpose requires a process of interpretation that oscillates between a treaty's individual provisions and the logic of all its provisions as a whole. Second, for reservations, the term exists to preserve "rule coherence[,]" as that term has been developed by Professor Thomas Franck. Lastly, states are required upon signature not to …

A Foothold For Real Democracy In Eastern Europe, Elizabeth R. Sheyn

Vanderbilt Journal of Transnational Law

Ukraine has never had a criminal or civil jury trial despite the fact that the right to a criminal jury trial is guaranteed by Ukraine's Constitution. The lack of jury trials is one of the factors likely contributing to the corruption and deficiencies inherent in Ukraine's judicial system. This Article argues that Ukraine can and should make room for juries in its judicial system and proposes a framework for both criminal and civil jury trials. Although the use of juries will not remedy all of the problems plaguing Ukraine, it could bring the country closer to achieving a truly democratic …

Missed Opportunity: Congress's Attempted Response To The World's Demand For The Violence Against Women Act, Brenton T. Culpepper

Vanderbilt Journal of Transnational Law

The Supreme Court's decision in U.S. v. Morrison struck down, as a violation of the Commerce Clause, § 13,981 of the Violence Against Women Act, that provided a private right of action for victims of gender-motivated violence to assert against their abusers. However, § 13,981 should have been affirmed as implementing legislation designed to fulfill U.S. obligations under the International Covenant on Civil and Political Rights and customary international law. Recognizing § 13,981 as implementing legislation serves as a foundation for the United States to restore itself as a legitimate human rights leader capable of both appreciating its own international …

Promoting Commercial Law Reform In Eastern Europe, Samuel Bufford

Faculty Scholarship

This article is my account of what I did in a decade of advising governments and teaching judicial seminars on commercial law matters in Central and Eastern Europe, beginning in 1991. This article contains my individual reflections on more than a dozen visits to developing countries in Central and Eastern Europe to advise governments and to educate their judges, and several visits of judges from some of those countries to the United States. In many ways, my experiences are typical of United States judges who have done the same kind of work in developing countries. In some ways, my experiences …

Freeze-Outs: Transcontinental Analysis And Reform Proposals, Marco Ventoruzzo

Faculty Scholarship

One of the most crucial, but systematically neglected, comparative differences between corporate law systems in Europe and in the United States concerns the regulations governing freeze-out transactions in listed corporations. Freeze-outs can be defined as transactions in which the controlling shareholder exercises a legal right to buy out the shares of the minority, and consequently delists the corporation and brings it private. Beyond this essential definition, the systems diverge profoundly.

This gap exists despite the fact that minority freeze-outs are one of the most debated issues in corporate law, in the public media, in a vast body of scholarly work …