Law Commons^™

Missing The “Target”: Preventing The Unjust Inclusion Of Vulnerable Children For Medical Research Studies, Ruqaiijah A. Yearby

All Faculty Scholarship

Nearly everyone has experienced a burn and the resulting pain. Now imagine that you suffer a third-degree radiation burn that injures all the layers of your skin as well as the tissue, causing you extreme pain. . The burn turns your skin white, cherry red, or black and may produce blisters that are dry, hard, and leathery-looking. The burn can also be seen on the surface of your lungs and gastrointestinal tract. If the burn is big enough you will need skin grafts and surgery to replace the skin and tissue that will never grow back, as well as treatment …

Importance Of State Law In Police Reform, Roger L. Goldman

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Most articles on police reform concern the role of federal courts in enforcing constitutional rights under the fourth, fifth and sixth amendments through application of the exclusionary rule, criminal prosecution of law enforcement officers and pattern and practice suits brought against police departments. Additionally, much has been written about the need for civilian review of departmental discipline at the local level. In contrast, the focus of this article is on state law. On the one hand, state criminal prosecution of officers involved in shootings of unarmed, Black suspects has been shown to be ineffective because of the unwillingness of prosecutors …

Oh, What A Relief It (Sometimes) Is: An Analysis Of Chapter 7 Bankruptcy Petitions To Discharge Student Loans, Aaron N. Taylor, Daniel Sheffner

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Conventional wisdom dictates that it is all-but-impossible to discharge student loans in bankruptcy. This contention, however, misstates the fact that bankruptcy discharge of student loans is possible—and it happens. This Article presents a statistical analysis of what happened when Chapter 7 bankruptcy petitioners in the First and Third federal judicial circuits filed 523(a)(8) adversary proceedings—or proceedings to discharge their student loan debt due to an “undue hardship.” In our analysis, we found undue hardship discharge rates of 54% in the First Circuit and 24% in the Third Circuit. But more significantly, we found that undue hardship determinations were relatively rare. …

Hidden From View: Disability, Segregation And Work, Elizabeth Pendo

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The employment provisions of the Americans with Disabilities Act of 1990 were intended to bring working-age people with disabilities into the workplace by providing options for them to seek and gain meaningful, integrated employment. Although the ADA has made significant gains, the rate of progress in employment has been disappointing. While the lack of progress of people with disabilities in the traditional workplace has received attention, the work done by many, especially those with severe disabilities in segregated workplaces, remains hidden in sheltered workshops. This chapter explores the intersection of the concepts of disability, invisibility, and work and identifies the …

Missing The 'Target': Preventing The Unjust Inclusion Of Vulnerable Children For Medical Research Studies, Ruqaiijah Yearby

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The central purpose of medical research on children is to generate new knowledge that can improve children’s health, subject to ethical standards that promote justice. Incorporated in U.S. law, international law, and European Union law, the Justice Principle prohibits targeting in medical research, which is the selection of research subjects because of their manipulability and compromised position, rather than for reasons directly related to the problem being studied. Unfortunately, medical research studies involving children have too often violated the Justice Principle, by targeting children in a compromised position due to their health status and vulnerable to manipulability because of their …

Public Wrongs And Public Reason, Chad Flanders

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The distinction between crimes that involve wrongs in themselves and crimes that are wrong because the law makes them so has long puzzled theorists. This essay argues that the distinction, while getting at something real, is based on a mistake. That mistake is made both by those who see moral wrongness as a necessary condition for criminality and by those who believe merely making something illegal is sufficient to make it criminal. Neither is correct. Rather, what makes something a criminal wrong is that it involves a violation of a law that has been justified in terms of “public reason.”

Race Based Medicine, Color Blind Disease: How Racial Preferences In Violation Of The 14th Amendment Are Killing Us All, Ruqaiijah Yearby

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Disease is color blind, but medicine is not. For example, sickle cell disease is often discussed in terms of a Black disease; however, people of all different races suffer from sickle cell. Moreover, sickle cell is found in a number of places that have little to no Blacks, such as Afghanistan, Bangladesh, Burma, and Honduras. Nevertheless, health care providers often provide people of different races different levels of care justifying their disparate treatment based on scientific claims. However, not only are these scientific claims baseless, but also the explicit use of race to determine what medical treatment is provided patients …

Taste This!: Experiencing Transactional Lawyering In First-Year Contracts, Dana M. Malkus

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In a prior submission to The Law Teacher (“Reflection, Reality, and a Real Audience: Ideas from the Clinic"), I argued that the clinical education model provides some simple lessons that should inform all law teaching. One idea I advocated was that law teachers bring reality into the classroom whenever possible. Among other ideas, I suggested law teachers run in-class simulations based on "real world" transactions..

Over the past few years, I have had the opportunity to experiment more with this suggestion myself. At my institution, I teach a clinic course (which includes supervising students) and a transactional drafting course. I …

Once We're Done Honeymooning: Obergefell V. Hodges, Incrementalism, And Advances For Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

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Undoubtedly, the Supreme Court’s marriage equality decision in Obergefell v. Hodges is the watershed civil rights decision of our time. Since U.S. v. Windsor, each recent victory for same-sex couples in the federal courts evidenced that the legal recognition of same-sex marriages in the U.S. was becoming increasingly secure. Meanwhile, momentum was growing for the visibility of sexual minorities nationally. Yet, is marriage equality the last stop in the pro-LGBTQ movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality from Windsor to Obergefell can somehow leverage …

The Health Exception, Monica E. Eppinger

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The abortion doctrine laid out in Roe v. Wade permits a procedure necessary to preserve the life or the health of the pregnant woman, setting out what has come to be called the “life exception” and the “health exception.” This Article investigates the background and antecedents of the health exception, identifying three periods of formation and change up to the drafting of the Model Penal Code in 1959. It argues that theories of health lie at the heart of legal doctrine, shaping common-law treatment of abortion and persisting in nineteenth- and twentieth-century statutes. This account reveals origins of a health …

The Continuing Battle Over Economically Targeted Investments: An Analysis Of The Department Of Labor's Interpretative Bulletin 2015-01, Edward A. Zelinsky

Articles

In Interpretive Bulletin 2015-01 (IB 2015-01), the U.S. Department of Labor (DOL) renewed the now two-decades old battle over “economically targeted investments” (ETIs). As a matter of statutory interpretation, IB 2015-01, like its predecessors, is unpersuasive. The Employee Retirement Income Security Act of 1974 (ERISA) requires plan trustees to invest “solely” to provide participants’ retirement benefits. A trustee who invests in ETIs violates this statutory obligation by pursuing collateral economic benefits for persons other than plan participants. As a matter of policy, the social investing which ETIs exemplify is unsound. At best, such social investing in practice merely shuffles investment …

The Club Approach To Multilateral Trade Lawmaking, Nicolas Lamp

Vanderbilt Journal of Transnational Law

The World Trade Organization (WTO) stands at the center of an emerging structure of global economic governance. Its rules affect important aspects of everyone's lives--how much people pay for the products that they purchase, what types of employment are open to them, and which medicines they can access. And yet, while the WTO was conceived as a "negotiating machine" that would develop rules in sync with an increasingly dynamic global economy, negotiations on a new set of global trade rules have now been deadlocked for over a decade. This impasse is all the more surprising in light of the fact …

Should Courts Fear Transnational Engagement?, Olga Frishman

Vanderbilt Journal of Transnational Law

Judicial citation of foreign law worries many people, including justices of the U.S. Supreme Court, politicians, and legal academics. The critics in the United States argue that judges "cherry-pick" foreign citations and use them to import foreign norms that do not accord with the Constitution or the will of the American people. This Article argues, based on insights from organizational theory, that the critics overlook another, much greater, concern: the danger does not come from citing or looking at foreign law, but rather, from other types of interaction, such as meetings at judicial organizations, judicial delegations, or judicial conferences. The …

Stopping The Circling Vultures: Restructuring A Solution To Sovereign Debt Profiteering, Elisa Beneze

Vanderbilt Journal of Transnational Law

When a sovereign state becomes unable to repay its debts and enters into default, an ideal outcome involves a quick and mutually agreeable resolution with creditors, allowing the country to reenter the international markets and continue its recovery with limited impediments. However, the situation in Argentina, unfolding since 2001, has provided a stark example of why change is needed at the domestic and international level to address the growing problem of vulture funds' presence in the sovereign debt markets. These aggressive hedge funds have demonstrated an uncanny ability to hijack the sovereign debt restructuring process. Vulture funds purchase discounted debt …

Response: "Quid," Not "Quantum": A Comment On "How The International Criminal Court Threatens Treaty Norms", Roger O'Keefe

Vanderbilt Journal of Transnational Law

Mike Newton's article performs a considerable service in reminding the reader of some incontrovertible tenets of the law of international organizations (loosely so called in the case of an organ like the ICC) and of the law of treaties. First, the ICC is competent to exercise only that power vested in it by the States Parties to its Statute. In turn, the States Parties are not competent to transfer to the Court a power that they do not possess. "Nemo plus iuris transferre potest quam ipse habet," as Cicero may or may not have put it. Secondly, a treaty may …

Politics By Other Means: The Battle Over The Classification Of Asymmetrical Conflicts, Yahli Shereshevsky

Vanderbilt Journal of Transnational Law

Transnational armed conflicts between states and non-state armed groups have emerged as a defining characteristic of twenty-first century warfare. Humanitarian actors tend to classify such conflicts (e.g., between the United States and ISIL) as non-international armed conflicts rather than international armed conflict. This classification is subject to considerable debate; yet both sides present their views as the inevitable result of the interpretation of the relevant International Humanitarian Law (IHL) treaty articles.

This Article demonstrates that the classification of transnational armed conflicts as non-international armed conflicts does not merely concern the application of the relevant laws, but represents a fundamental shift …

Riding A "Friendly Elephant"? How African Nations Can Make The Best Of Economic Partnership With China, Austin Campbell

Vanderbilt Journal of Transnational Law

Modern China is a major trading partner with and investor in Africa. This Note examines its relationships with Nigeria and South Africa to evaluate whether the benefits they receive from Chinese involvement, like infrastructure or access to consumer goods, are outweighed by costs such as worsened corruption. It next discusses legal measures these countries have taken to mitigate any costs of Chinese involvement. At least in Nigeria and South Africa, the concrete benefits of Chinese trade and investment appear to outweigh the uncertain costs. However, legal protections adopted to reduce these costs are likely still inadequate. Given significant barriers to …

"Measuring" The Erosion Of Academic Freedom As An International Human Right, Klaus D. Beiter, Terence Karran, Kwadwo Appiagyei-Atua

Vanderbilt Journal of Transnational Law

This Article reports and comments on the results of an assessment of the legal protection of the right to academic freedom (an examination of its factual protection to be undertaken at a future point) in EU member states, having examined these countries' constitutions, laws on higher education, and other relevant legislation. The assessment relied on a standard scorecard, developed by utilizing indicators of protection of academic freedom, notably as reflected in UNESCO's Recommendation concerning the Status of Higher-Education Teaching Personnel, a document of 1997 that is not legally, but "politically" binding, and which concretizes international human rights requirements in respect …

The Trans-Pacific Partnership:The Death-Knell Of Generic Pharmaceuticals?, Alexander Stimac

Vanderbilt Journal of Transnational Law

As global commerce continues to expand, many states find international trade agreements to be a useful tool to facilitate this continued expansion. Trade agreements permit developing or poorer nations to establish robust, mutually beneficial trade relationships with powerful economies such as the United States. In the face of regional competition from China, several nations bordering the Pacific Ocean, including the United States, have reached a far-reaching trade agreement called the Trans-Pacific Partnership (TPP). This Note will focus on one particular piece of the TPP: the pharmaceutical trade and the international availability of generic medicines. The TPP has the potential to …

Paradise Lost: Can The European Union Expel Countries From The Eurozone?, Jens Dammann

Vanderbilt Journal of Transnational Law

There was a time, not too long ago, when the introduction of the euro was hailed as a tremendous success. Yet the Eurozone now faces an existential crisis. A number of member states have, since 2008, been prevented from defaulting on their sovereign debt only by massive bailouts. Greece has teetered on the verge of insolvency for years despite repeated such measures. Many observers now believe that Greece should stay in the European Union but leave the Eurozone, a scenario often referred to as the "Grexit." This would allow Greece to devalue its currency and thereby render its economy more …

An International Commission Of Inquiry For The South China Sea?, Ryan Mitchell

Vanderbilt Journal of Transnational Law

The multilateral territorial dispute over the South China Sea has intensified in recent years. In response, some observers endorse the apparent turn to "lawfare" on display in the ongoing Philippines v. China arbitration, conducted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS). Yet the limited subject matter of this arbitration means that it can contribute only modestly to any ultimate resolution between claimants. Indeed, the Chinese side has argued against tribunal jurisdiction precisely on the basis of the primacy of questions over territorial sovereignty--which are barred from UNCLOS proceedings--to the determination of all other …

Making International Health Regulations Work: Lessons From The 2014 Ebola Outbreak, Tsung-Ling Lee

Vanderbilt Journal of Transnational Law

Many legal scholars believe that the lack of enforcement mechanisms provided by the International Health Regulations (IHR) in part explains the slow containment of the deadly Ebola virus disease outbreak in West Africa in 2014. In contrast, some global health practitioners deem funding for global health emergencies as a key remedy to the ineffective international infectious disease control regime. Such belief underpinned the creation of the Pandemic Emergency Facility (PEF), the World Bank's new financing initiative, aiming to finance global disaster response. Some commentators hope that the establishment of the PEF will resuscitate international interest in global health security and …

Private Governance Can Increase Shipping's Efficiency And Reduce Its Impacts, Daniel J. Metzger

Vanderbilt Journal of Transnational Law

The shipping industry is a huge component of the world economy, and although it is often described as an efficient mode of transport, it still contributes as much carbon dioxide to the atmosphere as a major industrialized nation. Efficiency technologies and practices are available that would significantly lessen shipping's environmental impact, but "amazing loophole[s]" in international environmental law and a set of market failures have prevented them from being widely adopted. These problems have been studied before, but the public regulatory proposals being discussed run into steep, if not insurmountable obstacles. This Note argues that shipping inefficiency can be better …

A New Model Of Sovereignty In The Contemporary Era Of Integrated Global Commerce, Kevin Sobel-Read

Vanderbilt Journal of Transnational Law

Existing legal scholarship does not offer an effective or comprehensive definition of sovereignty. Sovereignty, however, matters. Indeed, many have lived and died for it; the term likewise appears with remarkable frequency in both academic and popular discourse. But, sovereignty is not what it used to be. The evolution of globalization generally, and transformations in global commerce specifically, have sutured together the peoples of the world-conventional nation-states and Indigenous groups alike--permanently altering the sovereignty of each. These developments make it that much more imperative to incorporate a functional definition of sovereignty into legal scholarship. But, given the complexities of sovereignty, the …

A Post-Millennial Inquiry Into The United Nations Law Of Self-Determination: A Right To Unilateral Non-Colonial Secession?, Dr. Glen Anderson

Vanderbilt Journal of Transnational Law

The present Article inquires whether a right to unilateral non-colonial (UNC) secession is grounded in the United Nations (UN) law of self-determination. The Article argues that peoples subjected to deliberate, sustained, and systematic human rights abuses in extremis (e.g., ethnic cleansing, mass killings, or genocide) by the existing state have an international customary law right to UNC secessionist self-determination. This right is coextensive with the "remedial-rights-only" philosophical approach to UNC secession. The Article further argues that in the post-millennial era two developments are likely for the law of UNC secessionist self-determination: first, the right will become available in response to …

Why China Established The Asia Infrastructure Investment Bank, Daniel C.K. Chow

Vanderbilt Journal of Transnational Law

On January 16, 2016, China officially opened the Asia Infrastructure Investment Bank (AIIB) for business, representing what might be a seismic shift in economic power from the United States to China. The AIIB creates a challenge to the U.S.-dominated World Bank and International Monetary Fund (IMF), two venerable international financial institutions created at the end of World War II. The World Bank lends money to developing countries to promote economic development, but these loans come with conditions called the Washington Consensus--a set of policies designed to promote the use of private markets, protect the environment, protect human and workers' rights, …

Sharing And The City, Michele Finck, Sofia Ranchordas

Vanderbilt Journal of Transnational Law

The sharing of public infrastructure, the exchange of small services, and the traditional "cup of sugar borrowed from the neighbor" are practices intrinsic to most urban agglomerations. In the digital age, these sharing initiatives are facilitated by online platforms such as Feastly, Peerby, and HomeExchange. These platforms allow city residents to share the idle capacity of some of their assets (e.g., clothing, tools, or a spare bedroom) with other residents living in close proximity to them, or with tourists looking for accommodation. While these practices can be justified by efficiency and sustainability concerns, some of them appear to be in …

Up In The Cloud: Finding Common Ground In Providing For Law Enforcement Access To Data Held By Cloud Computing Service Providers, Matthew Mckenna

Vanderbilt Journal of Transnational Law

Cloud computing is an everyday part of the modern world; a technology that is increasingly transcending international borders. Disregarding international borders allows cloud computing to operate more efficiently and thus provides better service to users. Yet, the global nature of cloud computing raises a question--what happens if multiple countries apply facially similar laws to cloud computing providers differently? This scenario is common, especially in the context of law enforcement seeking access to cloud computing data. The United States and the United Kingdom have similar laws regarding the government's ability to acquire users' data. Importantly, neither law explicitly addresses the question …

Protecting Cultural Heritage As A Means For International Peace, Security And Stability, Mark V. Vlasic, Helga Turku

Vanderbilt Journal of Transnational Law

Cultural aggression has become a strategy to obtain an advantage during war. In a deliberate and methodical pattern extremists have not only damaged and destroyed historical sites in Iraq and Syria, but they have also looted antiquities to raise money for their terrorist activities. In addition to degrading the victims' identities, such acts decrease the wealth of knowledge of the world as a whole. By examining various treaties and case law on cultural property, this Article highlights the importance of holding these perpetrators accountable. Furthermore, the protection of cultural property in war zones should be an element in the whole …

Minimally Democratic Administrative Law, Jud Mathews

Faculty Scholarship

A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what …