Law Commons^™

Beyond Instructions To Disregard: When Objections Backfire And Interruptions Distract, Molly J. Walker Wilson, Barbara A. Spellman, Rachel York

All Faculty Scholarship

Researchers have proposed many explanations for the replicated finding that jurors often fail to disregard evidence when instructed by a judge to do so. We propose a novel explanation: that the act of objecting may cause the effect because an objection (a) draws attention to the testimony and (b) heightens the perceived importance of the testimony (because of the implication that the objecting party wants to prevent jurors from using it). In previous studies, the act of objecting has always been confounded with the presence of the critical (objected-to) testimony. We devised two new experimental conditions that unconfound these factors. …

When Is A Change Going To Come?: Separate And Unequal Treatment In Health Care Fifty Years After Title Vi Of The Civil Rights Act Of 1964, Ruqaiijah A. Yearby

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ON June 19, 1963, when the Civil Rights Act was first introduced, President John F. Kennedy said in a message to Congress:

Events of recent weeks have again underlined how deeply our Negro citizens resent the injustice of being arbitrarily denied equal access to those facilities and accommodations, which are otherwise open to the general public. That is a daily insult, which has no place in a country proud of its heritage-- the heritage of the melting pot, of equal rights, of one nation and one people. No one has been barred on account of his race from fighting or …

The New Jim Crow? Recovering The Progressive Origins Of Mass Incarceration, Anders Walker

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This article revisits the claim that mass incarceration constitutes a new form of racial segregation, or JimCrow. Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the two phenomena, namely the debt that each owe to progressive and/or liberal politics. Though generally associated with repression and discrimination, both Jim Crow and massincarceration owe their existence in part to enlightened reforms aimed at promoting black interests; albeit with perverse results. Recognizing the aspirational origins of systematic discrimination marks an important facet of comprehending the persistence of racial inequality in the United States.

House To House: Mergers, Annexations, & The Racial Implications Of City-County Politics In St. Louis, Anders Walker

All Faculty Scholarship

According to most scholars, Jim Crow's death elevated African Americans even as white departures depressed them, condemning blacks to isolated neighborhoods, segregated schools, and crumbling urban cores. To counter such reversals, liberals endorsed the consolidation of urban and suburban zones, hoping that such moves might thwart flight, promote integration, and ameliorate the effects of what scholars began in the 1970s to term “institutional” or “structural” racism. Initially such efforts focused primarily on schools, but quickly expanded to include other types of consolidation as well, including the consolidation, or merger, of major metropolitan areas and surrounding counties. While the rubric of …

Immaculate Defamation: The Case Of The Alton Telegraph, Alan M. Weinberger

All Faculty Scholarship

At the confluence of three major rivers, Madison County, Illinois, was also the intersection of the nation’s struggle for a free press and the right of access to appellate review in the historic case of the Alton Telegraph. The newspaper, which helps perpetuate the memory of Elijah Lovejoy, the first martyr to the cause of a free press, found itself on the losing side of the largest judgment for defamation in U.S. history as a result of a story that was never published in the paper—a case of immaculate defamation. Because it could not afford to post an appeal bond …

Medicaid, Marketplaces, And Premium Assistance: What Is At Stake In Arkansas? The Perils And Pitfalls Of Medicaid Expansion Through Marketplace Premium Assistance, Sidney D. Watson

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On September 27, 2013, Arkansas became the first state to obtain federal approval for a Section 1115 demonstration waiver to require adults eligible for the Affordable Care Act's (ACA) Medicaid Expansion to enroll in private plans offered through the State's new Health Insurance Marketplace rather than traditional Medicaid.² Hailed as a "game changer," Republican lawmakers dubbed this Marketplace Premium Assistance approach a new Medicaid "private option."' ³ Others described it as a potential "middle ground" in efforts to expand Medicaid that may be more politically palatable for those who oppose "Obamacare."...

Marxist And Soviet Law, Stephen C. Thaman

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This chapter addresses both the Marxist critique of law before the Russian Revolution and the development of the Soviet Law Structure. It discusses the three main trends in Soviet Criminal Law before elucidating how these trends affected the General Part and the Special Part of Soviet Criminal Codes and overall Soviet criminal policy.

Rethinking Trademark Functionality As A Question Of Fact, Yvette Joy Liebesman

All Faculty Scholarship

Trade dress functionality stands for a reasonable premise: features which are essential to the use or purpose of an article, which affect the cost or quality of the article, or whose exclusive use would put competitors at a significant non-reputation-related disadvantage, are not protectable as signifiers of source or sponsorship. Functionality has broad implications, as a product’s shape can be its most identifiable feature.

The problems plaguing the functionality doctrine have been examined from a substantive point of view; however until the standard by which functionality is determined is changed, these problems are likely to continue to persist. When adjudicating …

Further Reflections On The Pardoning Power: Reply To Hoskins And Drinan, Chad Flanders

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Galifianakis: "First question. In 2013, you pardoned a turkey. What do you have planned for 2014?"

Obama: "We'll probably pardon another turkey". ¹

First, let me express my gratitude to the incisive comments of Zach Hoskins and Cara Drinan. I have long been a fan of Hoskins' s work, and his forthcoming book on the collateral consequences of punishment promises to be pathbreaking.² The influence of Drinan's scholarship on the pardoning power³ is evident in my original essay⁴ and her newer work on the Graham case has again inspired me in new directions in my research.^{5 …}

The Model Penal Code And The Dilemma Of Criminal Law Codification In The United States, Stephen C. Thaman

All Faculty Scholarship

In this chapter, the author discusses the legal international comparative study of codification. The author draws upon insights gained from the IACL Thematic Conference of 2012.

Charitable Contributions Of Services: Charitable Gift Planning For Non-Itemizers, Henry Ordower

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This Article examines the tax treatment of charitable contributions and concludes that contributors who do not itemize their deductions (nonitemizers) should contribute their services to charity whenever possible rather than contributing cash or property. Charitable donees similarly should embrace opportunities to accept and utilize service contributions from their donor bases, give service contributions as much recognition as money or property contributions, and encourage their lower-income donors to render services rather than giving money earned with performance of services. The Article suggests that nonitemizing taxpayers are the donors who have the most “skin in the game” for charitable contributions in terms …

Making Judge-Speak Clear Amidst The Babel Of Lawspeakers, Michael A. Wolff

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This article was prepared as a lecture for the Missouri Law Review 2014 Symposium entitled "The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis."

Alt-Labor, Secondary Boycotts, And Toward A Labor Organization Bargain, Michael C. Duff

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Recently, workers led by non-union labor advocacy groups, popularly labelled “ALT-Labor,” have been staging strikes and other job actions across the low wage economy. Some observers see this activity as the harbinger of a reinvigorated labor movement or, more generally, as audacious dissent by low wage workers with nothing to lose. Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food or big box retail worker. This article takes a different tack, presuming (implicitly using history as its guide) that employers will respond …

Crowd-Classing Individual Arbitrations In A Post-Class Action Era, Myriam E. Gilles, Anthony J. Sebok

Articles

Class actions are in decline, while arbitration is ascendant. This raises the question: will plaintiffs' lawyers skilled in bringing small value, large-scale litigation-the typical consumer, employment, and antitrust claims that have made up the bulk of class action litigation over the past forty years-hit upon a viable business model which would allow them to arbitrate one-on-one claims efficiently and profitably? The obstacles are tremendous: without some means of recreating the economies of scale and reaping the fees provided by the aggregative device of Rule 23, no rational lawyer would expend the resources to develop and arbitrate individual, small-value claims against …

The Aftermath Of Hobby Lobby: Hsas And Hras As The Least Restrictive Means, Edward A. Zelinsky

Articles

In Burwell v. Hobby Lobby Stores, Inc., the United States Supreme Court held that the Religious Freedom Restoration Act of 1993 (RFRA) does not require closely-held corporations’ employer-sponsored medical plans to provide forms of contraception that shareholders of such corporations object to on religious grounds. The question now raised is how the President, Congress, and the departments of Health and Human Services (HHS), Treasury and Labor, ought to respond to the Hobby Lobby decision.

The Courts And National Security: The Ordeal Of The State Secrets Privilege, David Rudenstine

Articles

The state secrets privilege, originally established in United States v. Reynolds, has evolved into a powerful tool for the Executive to shield actions from judicial scrutiny, undermining the rule of law and constitutional checks and balances. This expansion, driven by judicial deference and circuit court interpretations, now prioritizes national security over accountability, threatening core legal principles. The article argues for reform to balance national security concerns with judicial oversight and individual rights.

Manifest Illegality And The Icc Superior Orders Defense: "Schuldtheorie" Mistake Of Law Doctrine As An Article 33(1)(C)Panacea, Lydia Ansermet

Vanderbilt Journal of Transnational Law

While the Anglo-American and international legal systems adhere to the rule that "a mistake of the law excuses no one," German Schuldtheorie mistake of law doctrine provides for a mistake of law excuse if a defendant's mistaken belief in the lawfulness of his conduct was unavoidable. In a distinct but increasingly overlapping area of law, domestic and international legal systems provide defenses for subordinates acting in obedience to superior orders. At the international level, the Rome Statute of the International Criminal Court allows defendants charged with war crimes to invoke the defense of superior orders if the command obeyed was …

Legal Phantoms In Cyberspace: The Problematic Status Of Information As A Weapon And A Target Under International Humanitarian Law, Jack M. Beard

Vanderbilt Journal of Transnational Law

Reports of state-sponsored harmful cyber intrusions abound. The prevailing view among academics holds that if the effects or consequences of such intrusions are sufficiently damaging, international humanitarian law (IHL) should generally govern them--and recourse to armed force may also be justified against states responsible for these actions under the jus ad bellum. This Article argues, however, that there are serious problems and perils in relying on analogies with physical armed force to extend these legal regimes to most events in cyberspace. Armed conflict models applied to the use of information as a weapon and a target are instead likely to …

Will The New Icao-Beijing Instruments Build A Chinese Wall For International Aviation Security?, Alejandro Piera, Michael Gill

Vanderbilt Journal of Transnational Law

The last 6 years have seen an unprecedented level of activity in the field of international aviation law, with the adoption of three new conventions and one new protocol. This is a testament to ICAO's leadership role and its ongoing relevance, particularly in the field of aviation security. The tragic events of 9/11 highlighted some weaknesses in the international law regime and were the impetus behind the nine-year process that led to the adoption of the 2010 Beijing Convention and Protocol. This Article reviews the historical background to the new treaties, including the journey taken through the ICAO process. It …

Climate Change, Forests, And International Law: Redd's Descent Into Irrelevance, Annecoos Wiersema

Vanderbilt Journal of Transnational Law

Forestry activities account for over 17 percent of human-caused greenhouse gas emissions. Since 2005, parties to the United Nations Framework Convention on Climate Change have been negotiating a mechanism known as REDD--Reducing Emissions from Deforestation and Degradation--to provide an incentive for developing countries to reduce carbon emissions and limit deforestation at the same time. When REDD was first proposed, many commentators argued this mechanism would not only mitigate climate change but also provide biodiversity and forests with the hard international law regime that had so far been missing. These commentators appeared to hope REDD would develop into this kind of …

Managing The "Republic Of Ngos": Accountability And Legitimation Problems Facing The Un Cluster System, J. Benton Heath

Vanderbilt Journal of Transnational Law

This Article critically assesses the crucial but troubled system for the coordination of international humanitarian assistance--the UN "cluster approach." Regardless of whether the cluster approach actually helps in disaster response, it exercises substantial power over affected populations by assigning competences and leadership roles. The built-in mechanisms for controlling this power are unworkable because they ultimately fail to resolve the tension between humanitarian organizations' autonomy and the need for coordination. This Article identifies the emergence of an alternative model of accountability, based on mutual monitoring and peer review. Drawing on theories of network governance and experimentalism, this Article teases out the …

Blackwater's New Battlefield: Toward A Regulatory Regime In The United States For Privately Armed Contractors Operating At Sea, Sean P. Mahard

Vanderbilt Journal of Transnational Law

Piracy has reemerged with a vengeance in the twenty-first century. Although it is confined primarily to the horn of Africa, piracy poses a significant problem to commercial shipping companies that need to traverse the Gulf of Aden for business. In response to modern-day piracy, shipowners have begun to employ privately armed contractors for protection. Countries and international organizations have recently developed regulations to address this growth in private maritime security. This Note analyzes both international and domestic regulatory regimes for privately armed contractors with a specific focus on the United States and Norway. This Note concludes that current U.S. regulations …

Criminal Law Pays: Penal Law's Contribution To China's Economic Development, Margaret K. Lewis

Vanderbilt Journal of Transnational Law

China's rapid rise to become the second largest economy in the world is nothing short of extraordinary. When economic reforms took off in the late 1970s, China had been without formal criminal law for three decades. China's economic development since the launch of the reform period has occurred directly alongside the development of its criminal law, but the academic literature has failed to ask what role criminal law plays in China's impressive growth. This Article argues that not only has the People's Republic of China leadership historically used criminal law in service of economic ends but also, going forward, criminal …

Demanding Accountability Where Accountability Is Due: A Functional Necessity Approach To Diplomatic Immunity Under The Vienna Convention, Nina M. Bergmar

Vanderbilt Journal of Transnational Law

This Note addresses the inability of domestic workers to seek redress for exploitation by diplomat employers. In examining the legal quagmire facing these workers, this Note highlights a departure by courts from the functional necessity theory underlying the Vienna Convention. Courts now rely wholly on the U.S. State Department's interpretation of the scope of diplomatic immunity, communicated through "Statements of Interest." The significant deference given to such statements has had dire consequences for exploited victims. Under a functional necessity approach, domestic workers are able to demand redress, as exploitation is a private act--i.e., not in furtherance of the diplomatic mission--undertaken …

Amnesty Or Accountability: The Fate Of High-Ranking Child Soldiers In Uganda's Lord's Resistance Army, Stella Yarbrough

Vanderbilt Journal of Transnational Law

In May 2013, Uganda surprisingly resurrected its amnesty provision for two more years after having let it lapse only a year earlier. Uganda's vacillation likely represents its competing desires to grant amnesty to low-level actors in the Lord's Resistance Army (LRA) and to end impunity for decades of gross human rights violations in accordance with international criminal law. However, instead of crafting an amnesty provision that would satisfy both of these needs, Uganda reinstated the same "blanket" amnesty, or all-inclusive pardon, found in the Amnesty Act of Uganda (2000) (Act). As a result, high-level LRA actors like Thomas Kwoyelo and …

Separation Anxiety? Rethinking The Role Of Morality In International Human Rights Lawmaking, Vijay M. Padmanabhan

Vanderbilt Journal of Transnational Law

The conventional accounts of international law do a poor job accounting for human rights. International legal positivists generally argue that there is a strict separation of law and morality, with no role for moral obligation in the validation of law. But human rights practice reveals many situations in which it appears that morality is validating legal obligation. Process theorists recognize an intrinsic role for the values underlying international law in understanding its commands. But they embrace a vision of law as dialogue that fails to protect the right to self-determination that is a core value of human rights.

This Article …

The Special Tribunal For Lebanon: A Defense Perspective, Charles C. Jalloh

Vanderbilt Journal of Transnational Law

This Article analyzes the absence of organs tasked with guaranteeing the rights of the defense in international criminal law. It explains the historical origins of the problem, tracing it back to the genesis of modern prosecutions at the Nuremberg International Military Tribunal. It then explains how the organizational charts of the UN courts for the former Yugoslavia, Rwanda, and Sierra Leone omitted the defense and essentially treated it as a second class citizen before the eyes of the law. This sets the stage for the author to show why the creation of the first full-fledged defense organ in international criminal …

The Epic Struggle For Dolphin-Safe Tuna, Lauren Sullivan

Vanderbilt Journal of Transnational Law

In May 2012, the World Trade Organization (WTO) struck down the United States' dolphin-safe tuna labeling standard as a barrier to trade that is prohibited by the Technical Barriers to Trade Agreement (TBT). The analysis in the US-Tuna II report questions the validity of standardized eco-labels enforced by WTO Member States, which are an increasingly popular means to achieve environmental and consumer protection. This Note considers the merits of state-backed eco-labeling schemes, the implications of the US-Tuna II report for the WTO's approach to nontrade interests, and potential accommodations within the current WTO framework for eco-labels. It ultimately suggests that …

The Monetary Fifth Column: The Eurodollar Threat To Financial Stability And Economic Sovereignty, Stephen A. Fowler

Vanderbilt Journal of Transnational Law

Eurodollars are dollar-denominated deposit liabilities of banks outside the United States. Even though estimates of the size of the Eurodollar market exceed $5 trillion, these instruments are virtually unregulated. Legal scholarship has very little to say about Eurodollars, and the economic literature on the subject is geared toward economists and banking professionals rather than policy makers and attorneys. Furthermore, the economic scholarship is focused on describing the way Eurodollar markets function rather than critical examination of their nature and attendant risks. This Note is an attempt to get to the bottom of this ubiquitous yet mysterious financial instrument. It describes …

Multiple Nationality And Refugees, Jon Bauer

Vanderbilt Journal of Transnational Law

Persons with more than one nationality ("multiple nationals") who flee persecution in their home country may have compelling reasons to seek asylum elsewhere rather than go to a second country of nationality where they have no ties or face serious hardships. The 1951 U.N. Convention Relating to the Status of Refugees, however, expressly makes them ineligible for refugee status unless they have a well-founded fear of being persecuted in all their countries of nationality. The U.S. Refugee Act omits this exclusionary language but nonetheless has been read by immigration agencies as if it incorporated the Convention's approach. This Article challenges …