Law Commons^™

Ex Parte Seizures Under The Dtsa And The Shift Of Ip Rights Enforcement, Yvette Joy Liebesman

All Faculty Scholarship

The ex parte seizure provision of the Defend Trade Secrets Act is another step in a long line of legislation that shifts the costs of private enforcement to the public, which already has a toehold in copyright and trademark law. The ex parte provision — which is not incorporated into any state trade secret law — relieves rights owners of two “burdens.” First, it relieves the trade secret owner of the burden of actually having to compete in the marketplace. Second, it relieves the trade secret owner of the burden of the costs associated with the discovery process of a …

Is Having Too Many Aggravating Factors The Same As Having None At All?: A Comment On The Hidalgo Cert. Petition, Chad Flanders

All Faculty Scholarship

While the Court does not dispute that at first blush the defendant's argument appears logical, it is disturbed by the prospect of how one determines the point at which the number of aggravating circumstances causes the death penalty statute to be generally unconstitutional. Is the Court to engage in some mathematical calculation as to who might be covered by the statute and who is not; and if so, what would be reasonable and logical factors to include in the formula? Can the Court arbitrarily declare that fifty aggravating circumstances is too many but forty-nine is permissible? Even assuming one could …

Punishment, Liberalism, And Public Reason, Chad Flanders

All Faculty Scholarship

The article argues for a conception of the justification of punishment that is compatible with a modern, politically liberal regime. Section I deals with what some have thought are the obvious social interests society has in punishing criminals, and tries to develop those possible interests somewhat sympathetically. Section II suggests that many of those reasons are not good ones if punishment is regarded (as it should be) from the perspective of political philosophy. Social responses to bad things happening to people cannot be grounded in controversial metaphysical views about what is good for people or what people deserve, but many …

The Use Of Information And Communications Technology In Criminal Procedure In The Usa, Stephen C. Thaman

All Faculty Scholarship

In this chapter, the author discusses the three types of criminal surveillance and the subsequent data mining used to synthesize and compare the results of surveillance techniques. In addition, the author examines how the aforementioned procedures should be viewed in light of United States case law involving the privacy of American citizens.

Perspectives On The Tax Avoidance Culture: Legislative, Administrative, And Judicial Ambiguity, Henry Ordower

All Faculty Scholarship

Henry Ordower discusses the effect that legislating economic incentives through the tax system has on taxpayer behaviour and explores the resulting difficulty in drawing the line between legitimate and objectionable tax avoidance. He argues that while the attempts to separate the two types of tax avoidance – attempts such as enacting general anti-avoidance rules (GAARs) and following general principles of economic substance – may be partially successful, subsidies delivered through the tax system will inherently limit their effect. The lack of clear delineation between legitimate tax planning and objectionable tax avoidance enables an even firmer embedding of “the culture of …

Workplace Freakonomics, Matthew T. Bodie

All Faculty Scholarship

Data analytics has revolutionized our economy, and employment is no exception. Sometimes called people analytics or HR analytics, the study of worker behavior and activity now includes the collection of massive amounts of data that is then crunched by algorithms looking for both expected and unexpected patterns. This work is akin to the "freakonomics" approach, which asks unusual questions and is prepared to find answers that may upset conventional wisdom. This paper explores the possibility of a "workplace freakonomics" approach to using big data in the workplace, and considers the legal and ethical ramifications for wide-ranging explorations of employee data.

Preventing Neonatal Abstinence Syndrome Within The Opioid Epidemic: A Uniform Facilitative Policy, Jeremiah A. Ho, Alexander Rovzar

All Faculty Scholarship

The United States is currently in the midst of an opioid epidemic that has hit states in the southern New England regions particularly hard — with Massachusetts as one primary example. One of the many unfortunate results of the epidemic is a dramatic upsurge in cases of opioid dependency by expectant women that result in children born with Neonatal Abstinence Syndrome (NAS). NAS is a clinical syndrome that occurs when a newborn suffers withdrawal symptoms as a consequence of abrupt discontinuation of prenatal substance exposure. The expenses of treating and rehabilitating these drug-dependent newborns, predominantly shouldered by state taxpayers, are …

Why Flexibility Matters: Inequality And Contract Pluralism, Jeremiah A. Ho

All Faculty Scholarship

In the decade since the Great Recession, various contract scholars have observed that one reason the financial crisis was so “great” was due in part to contract law—or, more precisely, the failures of contract law for not curbing the risky lending practices in the American housing market. However, there is another reason why contracts made that recession so great: contracts furthered inequality. In recent years, when economic inequality has become a dominant national conversation topic, we can see development of that inequality in the Great Recession. And indeed, contract law was complicit. While contractual flexibility and innovation were available to …

Law As Instrumentality, Jeremiah A. Ho

All Faculty Scholarship

Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, …

Find Out What It Means To Me: The Politics Of Respect And Dignity In Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

All Faculty Scholarship

This accompanying article considers the state of LGBTQ equality after the Supreme Court’s decision in Obergefell v. Hodges in 2015. Specifically, by examining this upsurge of social visibility for same-sex couples as both acceptance of sexual minorities and cultural assimilation, the article finds that the marriage cases at the Supreme Court — Obergefell and U.S. v. Windsor — shifted the framing of gay rights from the politics of respect that appeared more than a decade ago in Lawrence v. Texas toward a politics of respectability. The article traces this regression in Justice Kennedy’s own definition of dignity from Lawrence, where …

Redefining The Intended Copyright Infringer, Yvette Joy Liebesman

All Faculty Scholarship

In the mid-1970s, Paul Edmond Dowling and William Samuel Theaker ran an “extensive bootleg record operation.”¹ The two men made unauthorized “phonorecords of unreleased [Elvis] Presley recordings. . . [using] material from a variety of sources, including studio outtakes, acetates, soundtracks from Presley motion pictures, and tapes of Presley concerts and television appearances.”² Dowling was a huge Elvis Presley fan, so he “handled the ‘artistic’ end of the operation, contributing his knowledge of the Presley subculture, seeking out and selecting the musical material, designing the covers and labels, and writing the liner notes.”³ Theaker, who lived in …

The Right To Remain In Safety: The Impact Of Community Leadership On Philadelphia's Ice Holds Policy, Caitlin A. Barry

Faculty Publications

No abstract provided.

Capital Punishment Of Unintentional Felony Murder, Brenner M. Fissell, Guyora Binder, Robert Weisberg

Faculty Publications

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …

How Privacy Distorted Standing Law, Felix T. Wu

Articles

No abstract provided.

China's And India's Differing Investment Treaty And Dispute Settlement Experiences And Implications For Africa, Won Kidane

Faculty Publications

This Article examines China’s and India’s differing investment treaty and dispute settlement experiences and the resulting implications for Africa. It attempts to answer the question of whether there is evidence of China’s and India’s attempt to take advantage of the default structural imbalance enabled by centuries of international investment laws and institutions that favor the investor. The Article begins by presenting the background of the current economic reality and trends that necessitate the evaluation of the existing rules and institutions. It then presents a detailed assessment of this phenomenon by focusing on the investment cases brought against India for context, …

Applying The Law Of Proportionality To Cyber Conflict: Suggestions For Practitioners, Eric Boylan

Vanderbilt Journal of Transnational Law

This Note examines the applicability of the law of armed conflict, and particularly the concept of proportionality, to cyber attacks. After exploring deviations in terminology that may lead to confusion in the field, it considers the difficulties associated with applying an area of law first implemented in the post-World War II era to technologies that have only become vitally important in recent years. Delving into some of the facets of cyber technology that make it unique as a potential battleground, this Note examines why those qualities make the law of proportionality particularly difficult to apply. Acknowledging that the law of …

Supernational Law, Frederic G. Sourgens

Vanderbilt Journal of Transnational Law

Should the United States continue to enter into free trade agreements containing sovereign commitments to resolve regulatory disputes with qualifying multinational corporations before international arbitral tribunals? This question has gained public prominence due to the vocal opposition of Senator Elizabeth Warren and President Donald Trump to the Trans-Pacific Partnership (TPP), denouncing it as disastrous and corrupt.' Public outcry has focused in particular on the investor-state dispute settlement (ISDS) mechanism included in the treaty. Public criticism submits that ISDS suffers from a fatal systemic asymmetry--it favors the profit interests of multinationals over the public policy concerns of the host states in …

Confronting Mexico's Enforced Disappearance Monsters: How The Icc Can Contribute To The Process Of Realizing Criminal Justice Reform In Mexico, Rodolfo D. Saenz

Vanderbilt Journal of Transnational Law

In 2015, the United Nations Committee on Enforced Disappearances released a report on Mexico, concluding that there is a generalized context of disappearances in the country, many of which would meet the legal definition of enforced disappearance. Despite the recurring pattern of mass disappearances throughout the country in the last decade, including the recent disappearance of forty-three students in Iguala, Mexico has not convicted a single person for an enforced disappearance committed after 2006. Equally appalling is the fact that 40 percent of missing person cases in the country never get opened. Mexico has begun a process of reforming its …

Expanding The Boundaries Of Boundary Dispute Settlement: International Law And Critical Geography At The Crossroads, Michal Saliternik

Vanderbilt Journal of Transnational Law

This Article identifies a new trend in the adjudication of international boundary disputes and examines it from a historical and normative perspective. For many years, the resolution of international land boundary disputes was governed exclusively by the principle of the stability and continuity of boundaries. Under this paradigm, the main role of international adjudicators was to determine the exact location of historical boundary lines that had been set forth in colonial-era treaties or decrees. Once these lines were ascertained, they were strictly enforced, and any attempt to challenge them was dismissed.

In recent years, however, international adjudicators have been increasingly …

Exit Legitimacy, Daniel Francis

Vanderbilt Journal of Transnational Law

Although it is widely appreciated that rights of exit from a legal order can be important and valuable, there currently exists no adequate account of the relationship between exit rights and legitimacy. This Article cures that deficiency by describing the contribution made by exit rights to the legitimacy of a legal order--a contribution that I call the "exit legitimacy" of that legal order--and offers two accounts of its normative significance. On the "thin" account, exit rights operationalize consent by making it more genuine, more ascertainable, and more closely related to relevant acts and relationships of governance; on the "thick" account, …

Humanitarian Intervention At The Margins: An Examination Of Recent Incidents, Peter Tzeng

Vanderbilt Journal of Transnational Law

Scholarship on humanitarian intervention is plentiful, but actual examples of state practice and opinio juris are sparse. Thus, critics conclude, the doctrine of humanitarian intervention has no legal basis in international law. This Article challenges this viewpoint. It does so by departing from the traditional framework of international law and adopting an alternative framework of analysis: the study of incidents. Through an examination of seven incidents over the past decade, this Article reveals that the doctrine of humanitarian intervention, though not yet an established norm of international law, functions to widen traditional exceptions to the prohibition on the use of …

You're It! Tag Jurisdiction Over Corporations In Canada, Tanya J. Monestier

Vanderbilt Journal of Transnational Law

In September 2015, the Supreme Court of Canada released its decision in Chevron v. Yaiguaje, a case that legal commentators had been keeping an eye on for years. The Chevron case has spanned several decades as well as several continents, and the enforcement action in Ontario was the latest in a series of procedural moves aimed at enforcing a nearly $10 billion Ecuadorian judgment against the oil giant. In Chevron, the plaintiffs sought to have the judgment enforced in Ontario against both Chevron (the judgment debtor) and Chevron Canada (a seventh-level indirect subsidiary of the judgment debtor). The Chevron case …

The Perks Of Being A Whistleblower: Designing Efficient Leniency Programs In New Antitrust Jurisdictions, Sandra M. Colino

Vanderbilt Journal of Transnational Law

This Article develops a framework for effective leniency policy design in jurisdictions that have limited or no mileage enforcing antitrust laws. Through an extensive review of legal and economic studies of leniency and comparative analysis, the Article identifies hurdles common to young systems that may be tackled with analogous solutions. Some issues simply require a methodological enforcement strategy and time. Others, however, call for a readjustment of either the leniency programs or the antitrust systems they help to enforce. While the latter approach is preferable, it is more difficult to implement. This Article focuses on leniency and recommends three general …

Tribunalizing Sovereign Debt: Argentina's Experience With Investor-State Dispute Settlement, Stephen K. Park, Tim R. Samples

Vanderbilt Journal of Transnational Law

The global sovereign debt market, lacking a formal bankruptcy regime or binding regulatory oversight, is fundamentally shaped by the specter of conflicts between debtors that refuse to pay and holdout creditors that refuse to settle. Never was this more evident than in Argentina's most recent sovereign debt crisis, which spurred daring, innovative, and often controversial legal strategies. This Article focuses on one of the legacies of Argentina's sovereign debt crisis: the use of investor-state arbitration under international investment law to enforce sovereign bond contracts. Following Argentina's financial collapse in 2001, private creditors brought dozens of cases against Argentina before the …

"Head-Of-State-Owned Enterprise" Immunity, Pammela S. Quinn

Vanderbilt Journal of Transnational Law

While other wealthy individuals and businessmen have served and do serve as heads of state, the Trump presidency appears to be unique in terms of the global scope of the President's business interests, his propensity to be sued, and his disinterest in disentangling his business interests from his official agenda. This Article conceptualizes Trump's many business holdings and licenses under the Trump Organization International umbrella as a "head-of-state-owned enterprise." This raises issues similar to cases involving both head-of-state and state-owned enterprise immunity. Considering existing immunity doctrines, including gaps and contested areas in the law pertaining to them, the Article identifies …

Hidden By Sovereign Shadows: Improving The Domestic Framework For Deterring State-Sponsored Cybercrime, Eric Blinderman, Myra Din

Vanderbilt Journal of Transnational Law

This Article analyzes the domestic legal framework applicable to state-sponsored cybercrime. The Article describes several instances where state sovereigns perpetrated cybercrimes in the United States. It then outlines the legal framework that the US government utilizes to hold accountable those who perpetrate such crimes. This Article argues that the current legal framework does not have a deterrence effect on sovereign states engaged in such activity and that prosecutors who seek to apply the current framework against state sovereigns or who misattribute the source of such attacks could negatively impact US foreign policy. To remedy these defects, this Article asserts that …

A Look Into The Data Privacy Crystal Ball: A Survey Of Possible Outcomes For The Eu-U.S. Privacy Shield Agreement, Emily Linn

Vanderbilt Journal of Transnational Law

The trade relationship between the European Union and the United States, the largest cross-border data flow in the world, is in a state of uncertainty. Operating under different notions of what privacy should look like and divergent legal protections for personal data, the European Union and United States have struggled to reach a mutually acceptable agreement in the past. This Note analyzes their latest attempt, the EU-U.S. Privacy Shield, with specific emphasis on (1) the way it has improved upon its predecessor, the EU-U.S. Safe Harbor; (2) the weaknesses that still remain; and (3) the external factors that threaten the …

How Countries Should Share Tax Information, Arthur J. Cockfield

Vanderbilt Journal of Transnational Law

Offshore tax evasion, international money laundering, and aggressive international tax planning significantly reduce government revenues. In particular, for some low-income countries the amount of capital flight (where elites move and hide monies offshore in tax havens) exceeds foreign aid. Governments struggle to enforce their tax laws to constrain these actions, and they are inhibited by a lack of information concerning international capital flows. The main international policy response to these developments has been to promote global financial transparency through heightened cross-border exchanges of tax information. The Article examines elements of optimal cross-border tax information exchange laws and policies by focusing …

Globalizing Property Law: An Institutional Analysis, Amnon Lehavi

Vanderbilt Journal of Transnational Law

This Article identifies the key role that institutions play in moving toward an effective cross-border regime in property law. Property is based on an in rem principle, which should provide a single system for ranking rights, powers, and priorities in assets that applies to all interested parties. In a global context, this feature of property law requires a cross-border legal ordering by an array of domestic and supranational institutions: legislative, administrative, and adjudicative.

The Article argues that the present fragmentation of property norms across national borders, and the incompleteness of supranational institutions that deal with property law, may place limits …

Hunt Or Be Hunted, Jeremiah Cioffi

Vanderbilt Journal of Transnational Law

Bulgaria is the geographic and political center of the European migrant crisis, which has the Bulgarian citizenry uneasy about its security. Bulgaria's societal disdain for Middle Eastern migrants stems from hundreds of years of subjugation and non-Muslim Bulgarians' second-class citizenship under the Ottoman Empire. Roving bands of civilian migrant hunters have begun taking the law into their own hands by capturing migrants and turning them over to the Bulgarian authorities for deportation. This Note discusses the illegality of such migrant hunting under Bulgarian domestic law. It then discusses how the impunity enjoyed by migrant hunters is an abdication of Bulgarian …