Law Commons^™

Misled Youth, Mark Tan

Theses and Dissertations

I’m a first-generation Canadian who was born and raised in Toronto, Ontario by Asian immigrants. I have migrated to the United States and lived here for 7 years. Through my work, I express the emotional value of preconceived notions, disconnectedness, and longing in search of finding place and acceptance within a community. Drawing from memory, personal narrative, emotion, and perception, I manipulate data into lines, forms, and materials through a subjective human experience from the lens of a non-citizen. By projecting the migration movement of my family lineage from China and the Philippines to Canada as well as my path …

Litigation Bias, Adam N. Eckart

Suffolk University Law School Faculty Works

There is pervasive litigation bias in law schools. Despite significant interest in transactional law fields among law students, law schools disproportionately teach to the student interested in litigation: litigation-based legal writing assignments outnumber transactional-based ones 19 to 1; litigation-based clinics outnumber transactional ones 9 to 1; and doctrinal classes focus primarily on appellate court cases, often failing to entertain substantive discussion on the creation or content of the documents that led to the dispute. As a result, law school graduates are 44% less prepared for transactional careers than litigation careers.
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Social Justice As Desistance: Rethinking Approaches To Gender Violence, Deborah M. Weissman

Faculty Publications

Part I of this Article describes most domestic violence intervention programs (DVIPs) as they currently function with regard to gender violence. It critiques the structure of these programs, their close partnership with criminal legal system actors, perceived deficiencies, and it identifies missed opportunities to provide meaningful intervention strategies with those who have harmed. It demonstrates the ways that laws, regulations, and policies governing DVIPs constrain most programs from moving beyond established practices informed by punitive approaches to address the structural conditions that situate gender violence within a political economic framework.

Part II begins with a brief overview of the research …

Honoring The Public Trust: Curbing The Bane Of Physician Sexual Misconduct, Rebecca H. Allensworth, K. S. Sindhu, Et Al.

Vanderbilt Law School Faculty Publications

The Federation of State Medical Boards defines physician sexual misconduct as any "behavior that exploits the physician-patient relationship in a sexual way." Although several attempts have been made in recent years to clarify its incidence in the United States, physician sexual misconduct is almost certainly underreported. Physician sexual misconduct represents a severe and irreversible violation of the compact underlying the patient–physician relationship and can have far-reaching consequences on the lives of patients and their families. In addition, the credibility of and trust in physicians, both essential to the provision of medical care, could well erode in the eyes of the …

Judicial Retention Elections For State Appellate Judges: The Implications Of The Ballot-Access Cases, James Blumstein

Vanderbilt Law School Faculty Publications

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states’ requirements that judges be elected. But …

Sequencing In Damages, Edward K. Cheng, Ehud Guttel, Yuval Procaccia

Vanderbilt Law School Faculty Publications

Tort law contains multiple doctrines governing the assignment of liability and the calculation of damages. But in what sequence should courts apply these doctrines? Does it matter, for example, whether a court applies comparative fault before or after mitigation of damages? The answer, rather surprisingly, is that sequencing does matter, and it can substantially affect the compensation that a tort victim ultimately receives. Yet the existing case law on sequencing is ad hoc, inconsistent, and undertheorized, and the issue has been entirely overlooked by the academic literature. In this Article, we introduce and examine the question of sequencing. We offer …

The Political Economy Of Wto Exceptions, Timothy Meyer

Vanderbilt Law School Faculty Publications

In a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism-essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries around the world debate new supply chain regulations to address public health issues arising from COVID-19 and shortages in critical components like computer chips. These public policy initiatives-addressing the central environmental, public health, and economic issues of the day-all likely violate World Trade Organization (WTO) rules governing …

Unauthorized And Unwise: The Lawful Use Requirement In Trademark Law, Robert A. Mikos

Vanderbilt Law School Faculty Publications

For decades, the United States Patent and Trademark Office ("PTO") has required trademark owners to comply with sundry nontrademark laws governing the sale of their trademarked goods and services. Pursuant to this "lawful use requirement," the Agency has refused or even cancelled registration of thousands of marks used on everything from Schedule 1 controlled substances to mislabeled soap. This Article subjects the Agency's lawful use requirement to long-overdue scrutiny. It suggests that in requiring compliance with other laws for registration, the PTO has lost sight of the one statute it is supposed to administer. In the process, the Agency has …

Criminal Injustice, Edward Rubin

Vanderbilt Law School Faculty Publications

As its title suggests, Why the Innocent Plead Guilty and the Guilty Go Free is a wide-ranging critique of our criminal justice system. While it is hardly the first, it offers a number of distinctive insights. Most of the now voluminous work on this topic is written by scholars, policy analysts, or journalists and is addressed to the legislature or the executive. This certainly makes sense. External observers are well positioned to critique a system that punishes without purpose, and the major determinants of its dysfunction are the legislature that enacts the criminal law and the executive that enforces it. …

What Property Does, Christopher Serkin

Vanderbilt Law School Faculty Publications

For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new …

The False Allure Of The Anti-Accumulation Principle, Kevin Stack, Michael Herz

Vanderbilt Law School Faculty Publications

Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power-—legislative, executive, and judicial—-in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, …

The Ideological Divide On Gun Regulation, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This article examines survey results on how ideology and vulnerability affect attitudes toward gun regulation. It finds that ideology is more of a driver of differences in these views than the personal risk of gun violence. Nonetheless, the survey data find majority support among opposed political groups for some gun regulations-- including some of the regulations incorporated in the new federal legislation.

The Hierarchy And Performance Of State Recycling And Deposit Laws, W. Kip Viscusi, Caroline Cecot

Vanderbilt Law School Faculty Publications

States can foster recycling of waste materials through a variety of policies. The majority of the states have recycling laws for waste products such as glass, plastic, cans, and paper. These laws vary in terms of stringency. The hierarchy we developed orders the laws as follows: laws that make recycling mandatory, laws that require the provision of recycling opportunities, laws that require the development of a recycling plan, and laws that specify a recycling goal. Based on national recycling data with over 400,000 observations, we find that the amount of recycling households undertake increases with the degree of stringency of …

Equality In The Streets: Using Proportionality Analysis To Regulate Street Policing, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The racially disparate impact and individual and collective costs of stop and frisk, misdemeanor arrests, and pretextual traffic stops have been well documented. Less widely noticed is the contrast between Supreme Court case law permitting these practices and the Court's recent tendency to strictly regulate technologically enhanced searches that occur outside the street policing setting and that--coincidentally or not--happen to be more likely to affect the middle class. If, as the Court has indicated, electronic tracking and searches of digital records require probable cause that evidence of crime will be found, stops and frisks should also require probable cause that …

A Compulsory Solution To The Machine Problem, Cole G. Merritt

Vanderbilt Law School Faculty Publications

Artificial Intelligence (AI) is already disrupting and will likely continue to disrupt many industries. Despite the role AI already plays, AI systems are becoming increasingly powerful. Ultimately, these systems may become a powerful tool that can lead to the discovery of important inventions or significantly reduce the time required to discover these inventions. Even now, AI systems are independently inventing. However, the resulting AI-generated inventions are unable to receive patent protection under current US patent law. This unpatentability may lead to inefficient results and ineffectively serves the goals of patent law.

To embrace the development and power of AI, Congress …

Promoting Cost-Effective Grid Modernization, Jim Rossi

Vanderbilt Law School Faculty Publications

Recent legislative reforms enacted in several states grant incumbent utilities a right-of-first-refusal (ROFR) over new electric power transmission lines. Regional grid planners, who typically defer to state law, often avoid running competitive solicitations for regional transmission projects located in these states. As a result, state ROFR laws expose customers to excessive regional transmission costs.

Such state ROFR laws are constitutionally dubious, and ultimately harmful to customers. Customers affected by ROFR laws do not realize the cost savings and other benefits of competition, including superior cost containment and innovative grid modernization solutions. States can promote cost-effective grid modernization by encouraging competitive …

Identifying The Plessy Remainder: State Exploitation Of Private Discriminatory-Impact Actions, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Public education in the U.S. is arguably more racially segregated now than it was in 1954, when the U.S. Supreme Court declared in Brown v. Board of Education "that in the field of public education the doctrine of separate but equal' has no place." Although scholars may differ in the extent they believe that racial integration might be necessary for educational equality, most agree that educational segregation, whether imposed by law, socioeconomics, or happenstance, is not likely to reverse in any meaningful way in the near future.

In the absence of a recognized federal right to education, federal-court- supervised school …

A World Without Prosecutors, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

Bennett Capers' article Against Prosecutors challenges us to imagine a world where we "turn away from prosecution as we know it," and shift "power from prosecutors to the people they purport to represent." In this world, crime victims decide whether to prosecute their own cases, and public prosecutors play a subsidiary role, taking primary responsibility only for cases "where the state is truly a victim (such as tax fraud)." This leaves a large category of cases - victimless crimes - without any prosecutor at all; Capers singles out drug offenses as "the biggest examples." Without prosecutors championing these and analogous …

Extrajudicial Killings In Bangladesh: Exploring The Phenomenon Of Human Rights Violations As A Means Of Maintaing Power, M. Ehteshamul Bari

Emory International Law Review

When the South Asian nation of Bangladesh emerged as an independent nation on December 16, 1971, the founding fathers sought to establish a liberal democracy that would uphold the rule of law and the fundamental human rights of individuals. To this end, they incorporated extensive guarantees, including safeguarding the enforcement of an impressive eighteen fundamental rights, in the Constitution of Bangladesh of 1972. However, this Article will demonstrate that after almost fifty years of independence, the promise of a liberal democracy has remained elusive in Bangladesh due to the frequent violation of human rights through extrajudicial killings as a convenient …

Non-Income Tax Legislation Across Latin America: An Effective Policy To Raise Revenues?, Nicolás José Muñiz Arias

Emory International Law Review

In the past decades, there has been a proliferation of non-income levies throughout Latin America designed to stimulate collections. Tax administrators favor them for being easier to enforce as compared to traditional taxes on net income, as well as harder to evade.

To make sense of the rather dysfunctional conglomeration of levies, this Article proposes a classification into three broad categories: (1) taxes on revenues; (2) alternative levies on income and assets, whether on a gross or net basis, along with taxes on net equity; and finally (3) transactional-type levies such as stamp taxes, export duties, remittance taxes, and registration …

Trademark Thrower: Using Banksy's Recent Eu Trademark Misadventures To Assess Why Copyright Is Not "For Losers", Shelly Kurland

Emory International Law Review

This Comment seeks to distinguish the protections and protection requirements of trademark and copyright in an international context, specifically using a recent case in which internationally known street artist Banksy lost his European Union trademark protections despite registration. This EU trademark proceeding will be utilized to analyze the requirements to maintain trademark protection in an international context and explain why those requirements are important to the integrity of intellectual property protections.

This Comment will first give an overview of trademark and copyright as intellectual property in general, then go into the specifics of the U.S. and EU trademark systems. This …

Righting The Rift Between Muslim And American: Celebrating Abdullahi An-An'im, Khaled A. Beydoun

Emory International Law Review

This Essay is a special contribution to the Journal of Law and Religion and the Emory International Law Review, honoring the work of Professor Abdullahi An-Na’im and his impact on my work, and more broadly, discourses on Islam in America, rights, and citizenship.

This Essay, celebrating the landmark work of Professor An-Na’im and its impact on my scholarly and public work, will examine these two fronts. By challenging the political constructions of Americanness and Muslim identity that prevailed on the right, left, and in-between, An-Na’im inspired new frontiers of thought and thinkers that followed his footsteps. This line of intellectual …

Secularism, Religion, And The State In A Time Of Global Crisis: Theoretical Reflections On The Work Of Abdullahi An-Na'im, Rohit Chopra

Emory International Law Review

This Essay presents a primarily theoretical examination of critical aspects of Abdullahi An-Na’im’s body of work. Drawing on my earlier work, the essay describes the current historical moment as one of “crisis globalization,” a normative condition characterized by the rise of authoritarianism and erosion of democracy across the globe, a backlash against religious and other kinds of minorities, as well as by a general sense of existential uncertainty stemming from the impact of climate change, terrorism, and our vulnerability to pandemics like Covid-19. I argue that An-Na’im’s work speaks especially powerfully to several aspects of this new condition. An-Na’im’s theorization …

Interpreting The Understanding Of Human Rights Implicit In The U.N. Declarations, Nicholas Wolterstorff

Emory Law Journal

Among my most treasured memories are those of the meetings in which Michael Perry and I, along with others, have commented on each other’s writings. These have been, for me, memorable learning experiences. Time and again, Perry has approached the issues being discussed from an angle that had not occurred to me. That is true, once again, for the issues that I will discuss in this Essay.[1]

Introduction: International Law And Inequalities, Diane Desierto

Journal Articles

Equality is both a premise and a promise (or at least much lip service is paid to such) of today’s international law. Customary international law and instruments such as the United Nations Charter, the Universal Declaration of Human Rights and other foundational treaties of the multilateral system are premised on the equality of states, the right to self-determination and the fundamental equality of human beings. With the era of decolonization, international law also became a battleground for material equality. In the wake of the 2008 financial crisis, (economic in-)equality once again entered the limelight in a number of disciplines, not …

Reimagining The Right To Public Education, Logan Miller

BYU Education & Law Journal

Critiques of the United States public education system abound. Many of these critiques expose the reality that the public school system regularly fails to do what it purports to do. Others discuss how the public school system in fact achieves some of its more insidious purposes. When the reality of the public schooling experience – especially for students from marginalized communities – is juxtaposed with the lofty rhetoric surrounding public education, a substantial disjuncture is evident: there is a gap between the idealized notions of public education and the actual learning environments and outcomes for many public school students. For …

Waste And The Governance Of Private And Public Property, Joseph A. Schremmer, Tara K. Righetti

Faculty Scholarship

Common law waste doctrine is often overlooked as antiquated and irrelevant. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just a historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, waste doctrine provides a fresh perspective on property, natural resources, and environmental law.

In this Article, we excavate …

A Unifying Doctrine Of Subsurface Property Rights, Joseph A. Schremmer

Faculty Scholarship

This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential …

Small Suburbs, Large Lots: How The Scale Of Land-Use Regulation Affects Housing Affordability, Equity, And The Climate, Eric Biber, Giulia Gualco-Nelson, Nicholas Marantz, Moira O’Neill

Utah Law Review

Housing costs in major coastal metropolitan areas nationwide have skyrocketed, impacting people, the economy, and the environment. Landuse regulation, controlled primarily at the local level, plays a major role in determining housing production. In response to this mounting housing crisis, scholars, policymakers, and commentators are debating whether greater state involvement in local land-use decision-making is the best path forward.

We argue here that there are good reasons to believe that continuing on the current path—with local control of land-use regulation as it is— will lead to persistent underproduction of housing. The benefits of housing production are primarily regional, including improved …

Survival Voting And Minority Political Rights, Douglas M. Spencer, Lisa Grow Sun, Brigham Daniels, Chantel Sloan, Natalie Blades

Publications

The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as "convenience voting" are really a mode of "survival voting" for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities.

To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially …