Law Commons^™

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 …

Hurricanes, Fraud, And Insurance: The Supreme Court Weighs In On, But Does Not Wade Into, The Concurrent Causation Conundrum In State Farm Fire And Casualty Company V. Rigsby, Chris French

Faculty Scholarship

In the December 6, 2016 Supreme Court decision, State Farm v. Rigsby, a homeowner’s house was damaged by Hurricane Katrina. The homeowner had homeowners insurance with State Farm and a flood insurance policy that was administered by State Farm on behalf of the federal government. The claims adjusters assigned by State Farm to handle the homeowner’s claim allegedly were instructed by State Farm to misclassify wind damage as flood damage in order to shift State Farm’s own liability for the loss to the federal government. The claims handlers filed a lawsuit against State Farm under the False Claims Act …

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 …

Review Of Bind Us Apart: How Enlightened Americans Invented Racial Segregation By Nicholas Guyatt, Robert L. Tsai

Faculty Scholarship

Legal historian Nicholas Guyatt argues in "Bind Us Apart: How Enlightened Americans Invented Racial Segregation" (Basic 2016), that racial segregation was created not by enemies of equality but rather by friends of equality in order to establish practical limits on their disruptive ideas. Drawing on rich sources, he says liberals pursued separationist policies not only to manage the social experience of slaves and former slaves, but also native peoples. Here I make the following points: (1) Guyatt doesn't distinguish between temporary, strategic resort to segregation from deeper philosophical commitments to segregation; (2) juxtaposing the plight of African slaves in America …

Fidelity To Our Imperfect Constitution: A Response To Five Views, James E. Fleming

Faculty Scholarship

In my recent book, Fidelity to Our Imperfect Constitution, I put forward a sustained critique of originalism in all its forms and defend what Ronald Dworkin called a "moral reading" of the U. S. Constitution and what Sotirios A. Barber and I have called a "philosophic approach" to constitutional interpretation. In this essay for the UNAM symposium on the book, I reply to five thoughtful commentaries. First, as against Barber's commentary, I justify responding to the "persistent resurgence of originalism" and attempting to "save the new originalists from themselves" by showing the extent to which many of them acknowledge …

A Research Agenda For The History Of Property Law In Europe, Inspired By And Dedicated To Marc Poirier, Anna Di Robilant

Faculty Scholarship

Proposes the following research agenda: (a) understanding the relation between property and long-term economic change by focusing on the relation between property law and what historians call "social property" relations; (b) understanding property concepts and ideas in the context of the larger ideological and philosophical ideas that shaped the immediate world of jurists and property lawyers; (c) looking beyond the single, contingent episodes of the history of property law and identifying longterm patterns and regularities in the way jurists conceptualized property; and (d) understanding European property culture in its many entanglements with the non-European world.

Trusting Big Data Research, Neil M. Richards, Woodrow Hartzog

Faculty Scholarship

Although it might puzzle or even infuriate data scientists, suspicion about big data is understandable. The concept doesn’t seem promising to most people. It seems scary. This is partly because big data research is shrouded in mystery. People are unsure about organizations’ motives and methods. What do companies think they know about us? Are they keeping their insights safe from hackers? Are they selling their insights to unscrupulous parties? Most importantly, do organizations use our personal information against us? Big data research will only overcome its suspicious reputation when people can trust it.

Some scholars and commentators have proposed review …

Abortion In A Post-Truth Moment: A Response To Erwin Chemerinsky And Michele Goodwin, Aziza Ahmed

Faculty Scholarship

In Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin respond to the crisis of abortion rights in our current political moment. While preserving the right to abortion is an ongoing challenge for reproductive-justice advocates and lawyers, the arrival of a new Republican administration led by Donald Trump and a Republican majority in the House and Senate heightens these concerns. In the face of ongoing and new threats to abortion access, Chemerinsky and Goodwin argue that abortion should be treated as a woman’s private choice. I agree with Chemerinsky and Goodwin, as all supporters of abortion rights should. …

On Questioning Automation, Woodrow Hartzog

Faculty Scholarship

Given the rapid pace of innovation and adoption, it can be hard to make sense of automated technologies. New products that leverage algorithms and artificial intelligence seem to be both promising and frightening. Law and policymakers, as well as the general public, are grappling with when to be excited and when to be concerned. If you're confused, you're not alone

Financing The Benefit Corporation, Dana Brakman Reiser, Steven A. Dean

Faculty Scholarship

The hybrid organizational forms designed with social enterprises in mind have proven to be hothouse flowers. Flourishing in state legislatures, even those with the most distinguished pedigrees-such as Delaware's public benefit corporation'-have so far failed to thrive in the marketplace. Fortunately, hybrid financial instruments offer a source of strength and stability that can help social enterprise to take root.

This Article examines the valuable role that financial instruments can play in providing social enterprises with the capital they need to grow. Debt with equity features and equity with debt characteristics constitute the lion's share of such financial tools. More exotic …

The Selection Of Litigation Against Government Agencies: Evidence From China, Wei Cui, Zhiyuan Wang

All Faculty Publications

We test the relevance of the selection theory of litigation in a contemporary, civil law setting, using Chinese judicial data that span 25 years regarding lawsuits against government agencies. Civil law systems may be characterized by lower costs of litigation and lower rates of settlement than the U.S. legal system, and therefore the presence of selection effects cannot be assumed. We show that selection effects are indeed manifest in Chinese administrative litigation, and suggest that this may be explained by hidden or intangible litigation costs. Our test for selection effects builds on the approach of previous U.S. studies and potentially …

Flexible Regulation Scholarship Blossoms And Diversifies: 1980-2012, Cristie Ford

All Faculty Publications

This piece reviews the 198 US law review articles that were most influential within flexible regulation scholarship (which includes meta regulation, responsive regulation, reflexive law, principles based regulation, new governance, and more) between 1980 and 2012, which also discussed innovation. It is chapter 4 of a forthcoming book on financial innovation and regulation. The analysis demonstrates that across this time period, flexible regulation scholars advocated for regulatory structures that were permeable to three main non-legal forces: market forces, deliberation and community norms, and industry standards. The image that emerges is of a diverse scholarly community, within which many adopted economics-derived …

Paying For Attendance: Using Incentives To Combat Chronic Absenteeism, Madeline H. Meth

Faculty Scholarship

Students with poor attendance miss opportunities to learn social and academic skills.' They perform worse on achievement tests. ² They are also less likely to graduate.³ A student who misses school in as early as the first grade is significantly more likely to eventually drop out of high school.⁴ Individuals who drop out see a significant loss in earnings and are more likely to be jobless; women who drop out make about 60% of what female high-school graduates earn, and men who do not graduate lose approximately $9,564 in annual wages. Because high-school dropouts earn less than those …

Agency Imprimatur & Health Reform Preemption, Elizabeth Mccuskey

Faculty Scholarship

At this moment, there exists nearly unanimous agreement that the American health care system requires reform, but also vehement disagreements over what form regulation should take and who should be in charge of regulating—state or federal authorities. Preemption doctrine typically referees disputes between federal and state regulatory efforts, but it also exacerbates them. There exists nearly as unanimous opinion that preemption doctrine in health law is a mess. This Article identifies an inventive structure that may help defuse some preemption problems in health reform.

The Affordable Care Act’s (ACA) individual and employer mandates, health insurance exchanges, and insurance coverage standards …

Transnational Carbon Contracting: Why Law’S Invisibility Matters, Natasha Affolder

All Faculty Publications

Contract lawyers are well aware that it is in the boilerplate, in the creation of contractual norms, forms and defaults, that power gets divided and that winners and losers are made. This analysis applies to contractual governance just as it applies to the individual contract setting. This chapter draws on the example of forest carbon contracts to illustrate the 'behind the scenes' privileging of contractual forms, norms, and defaults in action. It argues that the reductionist vision of law emerging in the literature and practice of carbon contracting is both misleading and impoverished.

Amicus Curaie, Submitted Susan Akram, Susan M. Akram

Faculty Scholarship

Summary of Argument

Palestinian refugees fall under a legal regime that is distinct from all other refugees in the world. As such, they are covered by a series of special provisions that apply only to them and no other refugees. Their special status resulted from the decisions of the drafters of key international treaties to exclude Palestinian refugees from the mandate of the United Nations High Commissioner for Refugees (UNHCR) and the 1954 Convention on the Status of Stateless Persons, and to conditionally exclude them from the benefits of the 1951 Convention on the Status of Refugees.

Three main reasons …

Imagining Equity And Inclusion: South Africa's International Economic Politics And Reflections On The Writings Of Justice Dikgang Moseneke, Erika George

Faculty Scholarship

In honour of Justice Dikgang Moseneke, this essay takes up his invitation to imagine an ethos consistent with South African Constitutionalism, one which could promote economic justice. This essay explores how the tools of international economic law as utilised by South Africa could serve as a means of transformation to advance the end of a more inclusive economic globalisation. South Africa's trade policies and participation in international business and human rights policy initiatives are offered as illustrations of a shift towards asserting interests aligned with the country's constitutional economic justice commitments. First, emphasising Justice Moseneke's writings outside of his rulings …

Illicit Exploitation Of Natural Resources - Art. 28l Bis Of The Malabo Protocol, James G. Stewart, Daniëlla Dam

All Faculty Publications

Article 28A(1)(13) of the Protocol to the Statute of the African Court of Justice and Human Rights lists ‘Illicit exploitation of natural resources’ as a criminal offense within the Court’s jurisdiction. In conjunction with the new mandate of the African Court, which includes the exercise of jurisdiction over corporations for the first time in an international treaty, the prohibition of “illicit exploitation of natural resources” creates an offense with especially sharp teeth, for business people, their corporations, military actors and politicians. The crime constitutes an important innovation in international law, since it offers a distinct legal basis for prosecution of …

A License To Kill: State Sponsored Death In The Oldest Colony In The World, Emmanuel Hiram Arnaud

Faculty Scholarship

The article discusses the death penalty in Puerto Rico as a means of state violence by the United States over Puerto Rico. In light of this, the author recounts the Puerto Rican colonial experience through a legal lens, beginning with the first organic law of Puerto Rico and the Insular Cases. Afterwards, the author examines the imposition of the death penalty on Puerto Rico and the challenges it has faced based on the due process of the fourteenth amendment. The article concludes with the stating how the death penalty is as another expression of the U.S. Congress plenary powers over …

Reimagining Toronto's Community Councils, Alexandra Flynn

All Faculty Publications

This article examines Toronto’s community councils, a post-amalgamation creation meant to buffer the effects of a much larger city. Using a mixed methodology approach to understand their role and function, this paper finds that community councils largely focus on local planning and land use issues. However, under applicable law, Toronto’s community councils have the capacity to increase their delegated and decision-making power to serve a greater stewardship role in matters of concern to the city’s neighborhoods, such as the “local” effects of “city-wide” issues, and to include non-councilor members as decision-makers. This paper argues that the City of Toronto should …

Equality And The Defence Of Provocation: Irreconcilable Differences, Isabel Grant, Debra Parkes

All Faculty Publications

Recent amendments to the defence of provocation have limited access to the defence to those who are provoked by conduct that, if prosecuted, would have been an indictable offence punishable by at least five years imprisonment. The paper argues that these amendments are both over- and under-inclusive and fail to confront the central problem surrounding provocation which is that it privileges loss-of-control rage often in the context of male violence against women or in response to same-sex advances. The paper supports the abolition of the defence of provocation but only if mandatory minimum sentences for murder are abolished providing trial …

How Understanding And Application Of Drug-Related Legal Instruments Affects Harm Reduction Interventions In Cambodia: A Qualitative Study, Sovannary Tuot, Chanrith Ngin, Khuondyla Pal, Sochenda Sou, Ghazal Sawez, Phylicia Morgan, Siyan Yi

Background: Harm reduction interventions in Cambodia face numerous obstacles because of conflicting understanding and interests and inconsistencies in the implementation by law enforcement officials. This study aims to examine how understanding and application of Drug Control Law (DCL) and Village/Commune Safety Policy (VCSP) affects harm reduction interventions in Cambodia from the standpoints of law enforcement officials, people who inject drugs and people who use drugs (PWID/PWUD), as well as other key stakeholders.

Methods: This qualitative study was conducted in the capital city of Phnom Penh in 2015. We held five focus group discussions (FGDs) with groups of PWID/PWUD, …

The Future Of Law As A Profession, Nancy J. Moore

Faculty Scholarship

For far too many years, lawyers and commentators have debated whether law is a profession or merely a business. The so-called business-profession dichotomy is somewhat of a misnomer. For many, maybe most lawyers, law is clearly a business in the sense that these lawyers seek to maximize their individual wealth as much (or as little) as other business persons. More importantly perhaps, lawyers in private practice widely acknowledge that adopting improved business practices is critical to providing competent legal services. The question remains however, whether, unlike some other commercial occupations, law is also a profession and if so, what is …

Review Of Punishment In Popular Culture By Charles Ogletree Jr. & Austin Sarat, Eds., Jessica Silbey

Faculty Scholarship

The editors of Punishment in Popular Culture remind us that "through practices of punishment ... cultural boundaries are drawn, that solidarity is created through acts of marking difference between self and other, that these processes proceed through disidentification as much as imagined connection." (p. 2) This is no doubt true about the organization, justification and reception of various forms of punishment in society. It is no less true about the creation and cultivation of popular cultural forms of entertainment such as television and film. To be sure, punishment acts directly on bodies. And cultural forms-visual or texual stories about punishment …