Law Commons^™

Foreign Contracts And U.S. Copyright Termination Rights: What Law Applies? – Comment, Richard Arnold, Jane C. Ginsburg

Faculty Scholarship

The U.S. Copyright Act gives authors the right to terminate assignments of copyrights in works other than works for hire executed on or after 1 January 1978 after 35 years, and to do so notwithstanding any agreement to the contrary. Given that agreements which are subject to the laws of other countries can assign U.S. copyrights, and purport to do so in perpetuity, U.S. law’s preclusion of agreements contrary to the author’s right to exercise her termination right can give rise to a difficult choice of law issue. Two recent cases which came before courts in the U.S. and England …

The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson

Faculty Scholarship

The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The United States has long had weaker protections for workers compared to other liberal democracies racial and economic disparities among those most affected by these dislocations (analyses are hampered by a paucity of demographic data). Those who were socially and economically vulnerable before the pandemic (for example due to homelessness, immigration status, or incarceration) are likely to suffer the most harm. Changes in workplace conditions as a result of the …

Covid-19 And Prisoners’ Rights, Gregory Bernstein, Stephanie Guzman, Maggie Hadley, Rosalyn M. Huff, Alison Hung, Anita N.H. Yandle, Alexis Hoag, Bernard E. Harcourt

Faculty Scholarship

As COVID-19 continues to spread rapidly across the country, the crowded and unsanitary conditions in prisons, jails, juvenile detention, and immigration detention centers leave incarcerated individuals especially vulnerable. This chapter will discuss potential avenues for detained persons and their lawyers seeking to use the legal system to obtain relief, including potential release, during this extraordinary, unprecedented crisis.

Linked Fate: Justice And The Criminal Legal System During The Covid-19 Pandemic, Susan P. Sturm, Faiz Pirani, Hyun Kim, Natalie Behr, Zachary D. Hardwick

Faculty Scholarship

The concept of “linked fate” has taken on new meaning in the face of the COVID-19 pandemic. People all over the world – from every walk of life, spanning class, race, gender, and nationality – face a potentially deadly threat requiring cooperation and sacrifice. The plight of the most vulnerable among us affects the capacity of the larger community to cope with, recover, and learn from COVID-19’s devastating impact. COVID-19 makes visible and urgent the need to embrace our linked fate, “develop a sense of commonality and shared circumstances,” and unstick dysfunctional and inequitable political and legal systems.

Nowhere is …

Covid-19 And The Law: Elections, Richard Briffault

Faculty Scholarship

With one Supreme Court decision, lower federal and state court decisions, pending litigation, and proposals around the country for major changes in how elections are conducted, COVID-19 has already had and likely will continue to have a significant impact on election law.

The discussion that follows proceeds in two parts. The first addresses the initial consequences of COVID-19 as an electoral emergency. Voters were due to go to the polls in states around the country just as the pandemic was gathering force and governors and mayors were calling on people to stay at home and avoid large gatherings – which, …

Child Welfare And Covid-19: An Unexpected Opportunity For Systemic Change, Jane M. Spinak

Faculty Scholarship

The COVID-19 pandemic has already wrecked greater havoc in poor neighborhoods of color, where pre-existing conditions exacerbate the disease’s spread. Crowded housing and homelessness, less access to health care and insurance, and underlying health conditions are all factors that worsen the chances of remaining healthy.Workers desperate for income continue to work without sufficient protective measures, moving in and out of these neighborhoods, putting themselves and their families at risk. During periods of greater disruption, tensions are heightened and violence more prevalent. Already some experts are warning of an onslaught of child maltreatment cases, citing earlier examples of spikes in foster …

Emergency Exemptions From Environmental Laws, Michael B. Gerrard

Faculty Scholarship

The national response to the coronavirus crisis may face several impediments but federal and state environmental laws should not be among them. Most of these laws have emergency exemptions that allow the usual (and sometimes lengthy) procedures to be bypassed, and some substantive requirements to be waived, in instances of true urgency. However, there is concern that some agencies and corporations will use this as an excuse to bypass environmental laws that aren’t actually getting in the way of responses to the crisis.

Covid-19 And Lgbt Rights, Suzanne B. Goldberg

Faculty Scholarship

Even in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face.

This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2) …

Dispute Resolution In Pandemic Circumstances, George A. Bermann

Faculty Scholarship

The peaceful resolution of disputes is among the most important earmarks of a regime attached to the rule of law. Even in countries in which, for one reason or another, courts do not work especially well, civil peace is of paramount importance. The absence of effective institutions for the administration of justice between and among private parties would spell a high degree of social disorder.

Even in the absence of a crisis such as we are experiencing, justice systems face a number of challenges in this day and age. Does a jurisdiction have a sufficient number of persons qualified to …

Driver For Contactless Payments, Ronald J. Mann

Faculty Scholarship

As a consumer, my primary experience with cash before the virus was standing in checkout lines observing the sluggish pace of cash transactions in front of me. Like so many things in our lives, the advent of the virus has changed the situation markedly. From the earliest days of infection, it has been far more unsettling to observe cash transactions knowing that the virus persists on paper and metal surfaces for days.

The dynamic that has driven the choices merchants offer in face-to-face retail transactions will change as well. Driven by the private exigencies of the retail environment, the last …

Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe

Faculty Scholarship

The WTO is looking for a new Director-General (DG). What does the trade community think is needed? This paper reports on the results of an expert survey undertaken as part of a research project on global trade governance at the European University Institute to solicit views on what WTO members and the international trade community consider the most important attributes of candidates for the position, as well as views on the substantive policy and institutional reform priorities confronting the WTO – and thus the new DG. The results suggest strong support for someone with managerial and political experience, and a …

To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent debates on the operation of the WTO’s dispute resolution mechanism have focused primarily on the Appellate Body (AB). We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of de-politicized conflict resolution that is reflected in the negative consensus rule for adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to WTO working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the AB crisis. Effective, coherent, and consistent …

Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi

Faculty Scholarship

“The U.S. won a $7.5 Billion award from the World Trade Organization against the European Union, who has for many years treated the USA very badly on Trade due to Tariffs, Trade Barriers, and more. This case going on for years, a nice victory”, tweeted President Trump’s on October 3, 2019. The United States (US) won not only the highest amount of retaliation ever adjudicated in the history of the WTO but also an ongoing right to retaliate on an annual basis until such time as the EU had complied by either removing the subsidies it granted Airbus or somehow …

Memoriam: Justice John Paul Stevens, John G. Roberts Jr., David Barron, Alison J. Nathan, Christopher L. Eisgruber, Olatunde C.A. Johnson, Eduardo M. Peñalver

Faculty Scholarship

When Justice John Paul Stevens passed away on July 16, 2019, I was flooded with personal memories of my year clerking for him. The standard words of comfort when someone dies are that they will live on through the individuals that knew and loved them. Justice Stevens sat on the Supreme Court for more than three decades; his loss would be felt beyond those who knew him personally. I wondered how history would remember him.

Symposium: The Puzzling And Troubling Grant In Kisor, Gillian E. Metzger

Faculty Scholarship

From one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

For Coöperation And The Abolition Of Capital, Or, How To Get Beyond Our Extractive Punitive Society And Achieve A Just Society, Bernard E. Harcourt

Faculty Scholarship

In hindsight, the term "capitalism" was always a misnomer, coined paradoxically by its critics in the nineteenth century. The term misleadingly suggests that the existence of capital produces a unique economic system or that capital itself is governed by economic laws. But that's an illusion. In truth, we do not live today in a system in which capital dictates our economic circumstances. Instead, we live under the tyranny of what I would call "tournament dirigisme": a type of state-directed gladiator sport where our political leaders bestow spoils on the wealthy, privileged elite.

We need to displace this tournament dirigisme with …

What Do Lawyers Contribute To Law & Economics?, Robert E. Scott, George G. Triantis

Faculty Scholarship

The law-and-economics movement has transformed the analysis of private law in the United States and, increasingly, around the world. As the field developed from 1970 to the early 2000s, scholars have developed countless insights about the operation and effects of law and legal institutions. Throughout this period, the discipline of law-and-economics has benefited from a partnership among trained economists and academic lawyers. Yet the tools that are used derive primarily from economics and not law. A logical question thus demands attention: what role do academic lawyers play in law-and-economics scholarship? In this Essay, we offer an interpretive theory of the …

Why The Fed Should Issue A Policy Framework For Credit Policy, Kathryn Judge

Faculty Scholarship

The Federal Reserve has long used policy frameworks to both explain and inform its policymaking. These policy frameworks typically explain what the Fed is seeking to achieve in a given domain and how it plans to achieve its desired aims. Two prominent examples are the Fed’s use of Bagehot’s dictum when acting as a lender of last resort and its monetary policy framework issued in 2012 and revised in 2020. In both instances, the framework provides a foundation for informed debate among Fed policymakers, Congress, and the public, enhancing both efficacy and accountability. Since the onset of the Covid crisis, …

Table Of Contents

University of Richmond Law Review

No abstract provided.

The Program, Aaron Douglas Estrada

Theses and Dissertations

In my work, I explore the engineering of identity and socioeconomics that are programed into Black and Brown communities. I refer to this as “The Program”. The Program validates, breaks, codes, and critiques the system that divided us. The Program is identifying with the struggle of growing up in a system that is programmed to see you fail. So if you get caught up in that system it’s a natural death within the program. But you can break and make your own program. If you stick to the program.

The paper's use of language is coded. Text has been written …

Cyberbullying: School Administrators' Perceptions Of Law And Prevalence, And Their Roles In Prevention, Intervention And Discipline, Suzan Gragg Denby

Theses and Dissertations

This study was aimed at investigating secondary school administrators’ experiences with and their perceptions of cyberbullying, as well as their intervention and prevention procedures. As technology has become ubiquitous in our society, students’ use has increased and impacted the school environment. Given the potential for cyberbullying and the negative effects of such, schools harbor the responsibility to prevent and intervene in such occurrences. This can be a tricky process.

This study included 12 administrators of secondary schools across eight school divisions in Virginia. Through an interview process, administrators spoke of their experiences with technology and cyberbullying incidents, and how they …

A Critical Multiple Case Study Analysis Examining The Implementation Of The Every Student Succeeds Act (Essa) To Promote Positive School Climate, Weade W. James

Theses and Dissertations

This study explored the role of federal policy in improving school climate, and examined how federal policy, specifically the Every Student Succeeds Act (ESSA) is being implemented at the state-level to address school climate issues. A qualitative multiple-case study design with content analysis was used as the leading approach to understanding how states are implementing ESSA’s school climate measure for accountability. ESSA is the nation’s federal education law that was enacted in 2015 and replaced No Child Left Behind (NCLB). I compared states’ implementation of ESSA’s school climate and safety (SCS) measure, including how states are measuring SCS and whether …

The Complexities Of Democracy, Development, And Human Rights In China's Belt And Road Initiative, Diane A. Desierto

Connecticut Journal of International Law

China's Belt and Road Initiative (BRI)—a dense network of China-funded multi-year infrastructure projects in over 65 countries from the Western Pacific to the Baltic Sea, collectively aiming to establish China's strategic "Maritime Belt" and "Silk Road" connectivity using an estimated range of USD$1 Trillion to USD$8 Trillion—is as unprecedented phenomenon in sovereign project financing and bilateral investment lending, since the United States' grant of USD $800 Billion for the Marshall Plan was for Europe’s post World War II reconstruction. The scale, scope, and terms of BRI projects remain shrouded in relative opacity, with China as of this writing only incrementally …

Anticipating Accommodation, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

In theory, a reasonable accommodation mandate can remedy worker marginalization by requiring employers to make small adjustments in the workplace that have big payoffs for employees. But in reality, a reasonable accommodation mandate may be an empty promise. Reasonable accommodation is the hallmark feature of the Americans with Disabilities Act ("ADA "), yet decades of empirical studies indicate that wage and employment outcomes of disabled individuals have not improved--and may have even worsened--since the Act's passage. Economists have been quick to blame the reasonable accommodation mandate for the ADA's failure, but they have lacked sufficient data to discern both what …

The Specific Consumer Expectations Test For Product Defects, W. Kip Viscusi, Clayton J. Masterman

Vanderbilt Law School Faculty Publications

The consumer expectations test in products liability law holds firms liable for producing goods that are more dangerous than the reasonable consumer would anticipate. But judicial experience in the majority of states that have utilized the consumer expectations test demonstrates that it is ambiguous and impossible to apply predictably. The test is ill-suited for regulating complex products or markets with heterogeneous consumers; moreover, the test requires courts to expend significant resources to identify consumers' ex ante beliefs about product risks, even when consumers lacked tangible beliefs about products at the time of purchase. The other major test that courts apply …

The Indian Securities Fraud Class Action: Is Class Arbitration The Answer?, Brian T. Fitzpatrick, Randall S. Thomas

Vanderbilt Law School Faculty Publications

In 2013, India enacted one of the most robust private enforcement regimes for securities fraud violations in the world. Unlike in most other countries, Indian shareholders can now initiate securities fraud lawsuits on their own, represent all other defrauded shareholders unless those shareholders affirmatively opt out, and collect money damages for the entire class. The only thing missing is a better financing mechanism: unlike the United States, Canada, and Australia, India does not permit contingency fees, so class action lawyers cannot front the costs of litigation in exchange for collecting a percentage of what they recover. On the other hand, …

Do Founders Control Startup Firms That Go Public?, Brian Broughman, Jesse M. Fried

Vanderbilt Law School Faculty Publications

American competition policy has four big problems: Amazon, Apple, Facebook, and Google. These companies each reign over a sector of the digital marketplace, controlling both the consumer experience and the possibility of competitive entry. This Essay argues that the conventional account of how antitrust law allowed this consolidation of market power - that it failed to evolve to address the market realities of the technology sector- is incomplete. Not only did courts fail to adapt antitrust law from its smoke-stack roots, but they gave big tech special dispensation under traditional antitrust doctrine. Swayed by prevailing utopic views about digital markets …

The Impact Of Cannabis Access Laws On Opioid Prescribing, W. Kip Viscusi, Benjamin J. Mcmichael, R. Lawrence Van Horn

Vanderbilt Law School Faculty Publications

While recent research has shown that cannabis access laws can reduce the use of prescription opioids, the effect of these laws on opioid use is not well understood for all dimensions of use and for the general United States population. Analyzing a dataset of over 1.5 billion individual opioid prescriptions between 2011 and 2018, which were aggregated to the individual provider-year level, we find that recreational and medical cannabis access laws reduce the number of morphine milligram equivalents prescribed each year by 11.8 and 4.2 percent, respectively. These laws also reduce the total days’ supply of opioids prescribed, the total …

Governing Cascade Failures In Complex Social-Ecological-Technological Systems: Framing Context, Strategies, And Challenges, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Cascade failures are events in networked systems with interconnected components in which failure of one or a few parts triggers the failure of other parts, which triggers the failure of more parts, and so on. Cascade failures occur in a wide variety of familiar systems, such as electric power distribution grids, transportation systems, financial systems, and ecosystems. Cascade failures have plagued society for centuries. However, modern social-ecological-technological systems (SETS) have become vast, fast moving, and highly interconnected, exposing these systems to cascade failures of potentially global proportions, spreading at breathtaking speed, and imposing catastrophic harms. The increasing potential for cascade …