Law Commons^™

A Global Crypto Code Of Conduct: Crafting An Internationally Centralized Regulatory Body For A Decentralized Asset, Mary Kavaloski

Vanderbilt Journal of Transnational Law

The advent of Bitcoin in 2009 presented a previously unfathomable possibility for the future of currency and monetary transactions. Now, cryptocurrency is ubiquitous; it is increasingly seizing media headlines, novel swathes of investors, institutional bank involvement, and most importantly of all, the attention of government regulators. Yet governments around the globe have failed to adequately keep up with the pace of cryptocurrency's evolution, particularly because of their lack of expertise in this unprecedented area. This Note discusses how cryptocurrency's truly global footprint warrants a partnership between national regulators and industry actors at the international level. Specifically, by exploring the approaches …

Addressing Unlawful Cyber Operations In Armed Conflict Through Human Rights Bodies Instead Of The International Criminal Court, Zachary R. Orr

Vanderbilt Journal of Transnational Law

Although the ICC-or other similarly-situated international criminal tribunals-could soon see the first cyber war crime prosecution, two glaring issues persist. First, the universe of conduct that could give rise to such a prosecution is limited. Second, heavy reliance on the war crimes framework fails to provide a forum for redress of many harms caused by other unlawful cyber operations in armed conflict. The fragmented nature of international law and its enforcement mechanisms requires solutions that harness the full range of the integrated architecture of the international system. Cyber operations might soon feature at the ICC, but only a fraction of …

Temporary Protection For Ukrainians In The European Union: Why Now And When Again?, Maryellen Fullerton

Vanderbilt Journal of Transnational Law

In 2022, the Russian invasion of Ukraine produced an unprecedented wave of temporary immigration protections throughout the European Union (EU). Within the first few months of the war in Ukraine, over 4 million displaced individuals had registered for temporary protection. EU States distant from Ukraine sheltered hundreds of thousands of displaced families, while Poland and other EU States that border Ukraine sheltered more than 2 million. This groundswell response marked a striking departure from just seven years earlier, when the EU Commission and EU Council failed to use readily available laws to provide a temporary protection program for Syrians displaced …

Justifying Aggression: Russia's 2020 Constitutional Amendments And The Invasion Of Ukraine, Robert C. Blitt

Vanderbilt Journal of Transnational Law

Beyond the alluring promise of an enhanced social safety net for Russian citizens, President Vladimir Putin's constitutional amendments of 2020 betrayed a distinct preoccupation with fortifying Russia's international standing and crafting a new national identity. By Putin's own account, these amendments were necessary to steel the country against the malevolent action of international conspirators committed to Russia's downfall. As this Article posits, these specific constitutional changes systematically entrenched an exceptionalist vision of Russian sovereignty and a civilizational identity that left the country constitutionally untethered from international norms and institutions, saturated in religious fervor and visions of imperial glory, and poised …

Immigration Detention Abolition And The Violence Of Digital Cages, Sarah R. Sherman-Stokes

Faculty Scholarship

The United States has a long history of devastating immigration enforcement and surveillance. Today, in addition to more than 34,000 people held in immigration detention, Immigration and Customs Enforcement (“ICE”) surveils an astounding 296,000 people under its “Alternatives to Detention” program. The number of people subjected to this surveillance has grown dramatically in the last two decades, from just 1,339 in 2005. ICE’s rapidly expanding Alternatives to Detention program is marked by “digital cages,” consisting of GPS-outfitted ankle shackles and invasive phone and location tracking. Government officials and some immigrant advocates have categorized these digital cages as a humane “reform”; …

Privacy Nicks: How The Law Normalizes Surveillance, Woodrow N. Hartzog, Evan Selinger, Johanna Gunawan

Faculty Scholarship

Privacy law is failing to protect individuals from being watched and exposed, despite stronger surveillance and data protection rules. The problem is that our rules look to social norms to set thresholds for privacy violations, but people can get used to being observed. In this article, we argue that by ignoring de minimis privacy encroachments, the law is complicit in normalizing surveillance. Privacy law helps acclimate people to being watched by ignoring smaller, more frequent, and more mundane privacy diminutions. We call these reductions “privacy nicks,” like the proverbial “thousand cuts” that lead to death.
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Revisioning Algorithms As A Black Feminist Project, Ngozi Okidegbe

Faculty Scholarship

We live in an age of predictive algorithms.¹ Jurisdictions across the country are utilizing algorithms to make or influence life-altering decisions in a host of governmental decision-making processes—criminal justice, education, and social assistance to name a few.² One justification given for this algorithmic turn concerns redressing historical and current inequalities within governmental decision-making.³ The hope is that the predictions produced by these predictive systems can correct this problem by providing decision-makers with the information needed to make fairer, more accurate, and consistent decisions.⁴ For instance, jurisdictions claim that their turn to risk assessment algorithms in bail, …

Loper Bright And The Future Of Chevron Deference, Jack M. Beermann

Faculty Scholarship

The question presented in Loper Bright Industries v. Raimondo¹ is “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The Court denied certiorari on another question focused on the merits of the case,² indicating that at least four of the Justices are anxious to revisit or at least clarify Chevron. It’s about time, although it’s far from certain that the Court will actually follow through with the promise the certiorari grant indicates.^{3 …}

Trial Selection And Estimating Damages Equations, Keith N. Hylton

Faculty Scholarship

Many studies have employed regression analysis with data drawn from court opinions. For example, an analyst might use regression analysis to determine the factors that explain the size of damages awards or the factors that determine the probability that the plaintiff will prevail at trial or on appeal. However, the full potential of multiple regression analysis in legal research has not been realized, largely because of the sample selection problem. We propose a method for controlling for sample selection bias using data from court opinions.

Race, Racial Bias, And Imputed Liability Murder, Perry Moriearty, Kat Albrecht, Caitlin Glass

Faculty Scholarship

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.

This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals …

Counseling Oppression, Angelo Petrigh

Faculty Scholarship

Critical scholars and public defenders alike have grappled with the contradictions at the heart of counseling clients in a carceral system. Systems of oppression operate within the public defender - client relationship because the defender’s role in translating the law also enforces its inequities. Counseling can obscure the workings of the system, providing an illusion of choice despite privileging certain forms of knowledge and tactics.

But the counseling site is also where defenders become exposed to client’s lived experiences, encounter collectivist tactics, and critically examine the tension of their role in the system. Likewise, through counseling defenders can pull back …

Human Rights In Hospitals: An End To Routine Shackling, Neil Singh Bedi, Nisha Mathur, Judy D. Wang, Avital Rech, Nancy Gaden, George J. Annas, Sondra S. Crosby

Faculty Scholarship

Medical students (NSB, NM, JDW) spearheaded revision of the policy and clinical practice for shackling incarcerated patients at Boston Medical Center (BMC), the largest safety net hospital in New England. In American hospitals, routine shackling of incarcerated patients with metal restraints is widespread—except for perinatal patients—regardless of consciousness, mobility, illness severity, or age. The modified policy includes individualized assessments and allows incarcerated patients to be unshackled if they meet defined criteria. The students also formed the Stop Shackling Patients Coalition (SSP Coalition) of clinicians, public health practitioners, human rights advocates, and community members determined to humanize the inpatient treatment of …

Cuing Safety In The Law School Classroom: Using A Polyvagal Theory Framework In Support Of Trauma-Informed Teaching Practices, Gigi Walker, Brian Flaherty

Faculty Scholarship

The past few decades have seen a welcomed focus on “Trauma-informed education.” This focus is often traced back to the 1997 Adverse Childhood Experiences study, which identified many significant negative outcomes that resulted from childhood trauma.¹ While the original study focused on outcomes such as chronic health problems, incarceration, and employment challenges, later researchers focused on the negative impacts on education and learning as a result of trauma.² Educators continue to work with this research trying to figure out how to be more “trauma-informed,” and to better reach those students whose lives and learning capacity have been affected …

Jack Daniel’S And The Unfulfilled Promise Of Trademark Use, Stacey Dogan, Jessica Silbey

Faculty Scholarship

In Jack Daniel’s v. VIP Products, the Supreme Court announced a bright-line rule: whatever speech protections govern the use of trademarks in artistic works, no such rule applies “when an alleged infringer uses a trademark in the way the Lanham Act most cares about: as a designation of source for the infringer’s own goods.” Those who engage in “trademark use,” in other words, must face the usual likelihood-of-confusion standard, regardless of whether their use also has expressive dimensions. The Jack Daniel’s defendant conceded that it was engaged in trademark use, so the opinion did not do the hard work …

How Bad Is Bad Enough?: Gatekeeping A Tenant's Right To 100% Habitable Housing, Sean Ahern

Faculty Scholarship

Tenants seeking to defend against eviction and to correct substandard conditions in their homes are hamstrung. Even in jurisdictions with “progressive housing policies,” there are steep doctrinal hurdles placed in front of tenants who try to establish a breach of the warranty of habitability and to defend against eviction. Such obstacles are baked directly into the judicial system and the standards that the judiciary applies in practice. While there are many systemic barriers to tenants vindicating themselves of the right to a fully habitable home, the most perniciously overlooked offender is a “substantiality” standard which trial court judges use to …

Foreword To Information Privacy Law At The Crossroads, Woodrow Hartzog

Faculty Scholarship

Information privacy has changed quite a bit over the past thirty years. Even if you haven’t been following the news, you’ve probably felt it as part of your daily interaction with information technologies. More of our personal information is converted into data, collected, used, and shared than ever before. The law of information privacy has changed as well. What started with a reckoning around the printing press and handheld cameras became formalized with the advent of the database and has turned into something bigger and more complex than I would have ever imagined.

The idea for this symposium began with …

Against Engagement, Neil Richards, Woodrow Hartzog

Faculty Scholarship

In this Article, we focus on a key dimension of commercial surveillance by data-intensive digital platforms that is too often treated as a supporting cast member instead of a star of the show: the concept of engagement. Engagement is, simply put, a measure of time, attention, and other interactions with a service. The economic logic of engagement is simple: more engagement equals more ads watched equals more revenue. Engagement is a lucrative digital business model, but it is problematic in several ways that lurk beneath the happy sloganeering of a “free” internet

Our goal in this Article is to isolate …

Kafka In The Age Of Ai And The Futility Of Privacy As Control, Daniel Solove, Woodrow Hartzog

Faculty Scholarship

Despite writing more than a century ago, Franz Kafka captured the core problem of digital technologies—how individuals are rendered powerless and vulnerable. Over the past fifty years, and especially in the twenty-first century, privacy laws have been sprouting up around the world. These laws are often based heavily on an Individual Control Model that aims to empower individuals with rights to help them control the collection, use, and disclosure of their data.

In this Article, we argue that although Kafka starkly shows us the plight of the disempowered individual, his work also paradoxically suggests that empowering the individual isn’t the …

Moving Beyond Statements And Good Intentions In U.S. Law Schools, Angela Onwuachi-Willig

Faculty Scholarship

This Article seeks to answer these questions about how law school leaders might help to cultivate antiracist cultures within their law schools, among their students, and across the legal profession, even in the face of a growing national backlash against antiracism, diversity, equity, and inclusion.³² Part I first establishes why it is important for law schools to "provide [an] education to law students on bias, cross-cultural competency, and racism," as the American Bar Association (ABA) requires, and to train future lawyers who have the abilities to combat racism. ³³ In so doing, Part I defines key terms such as …

Criminal Law's Hidden Consensus, Steven Arrigg Koh

Faculty Scholarship

American criminal law is facing a crisis of meaning. On one hand, the “traditional school” invokes the archetype of the violent criminal—a murderer, rapist, or thief—who must be prosecuted and punished. On the other hand, the “critical school” invokes the archetype of the low-level drug offender, sentenced to a draconian prison term for mere possession of low levels of marijuana. On this account, the criminal legal system is itself systemically pathological, perhaps even warranting abolition. Like ships passing in the night, the two schools appear irreconcilable. This Article helps break this impasse and builds toward a justification for criminal law …

The Partisan Republic: Democracy. Exclusion, The The Fall Of The Founders' Constitution, 1780s-1830s, Matthew Crow, Katlyn Marie Carter, Graham G. Dodds, Jessica K. Lowe, Stephen J. Rockwell, Saul Cornell, Gerald F. Leonard

Faculty Scholarship

This article is a forum on Gerald Leonard and Saul Cornell's The Partisan Republic: Democracy. Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019). ISBN 978-1-107-02416-8

Roundtable Contents:

• Introduction by Matthew Crow, Hobart and William Smith Colleges
• Review by Katlyn Marie Carter, University of Notre Dame
• Review by Graham G. Dodds, Concordia University, Montreal, Canada
• Review by Jessica K. Lowe, University of Virginia School of Law
• Review by Stephen J. Rockwell, St. Joseph's University
• Author's Response by Saul Cornell, Fordham University
• Author's Response by Gerald Leonard, Boston University

Roads Not Taken On Affirmative Action, Robert L. Tsai

Faculty Scholarship

The law of affirmative action is a mess. In the short term, legal doctrine is constrained by path dependence, but its long-term future is murkier due to the many unforeseen contingencies. To regain a sense of the possible, this Article looks forward to the future of equality jurisprudence by looking backward. It recovers three roads not taken. First, the Supreme Court could have kept expectations minimal by hewing closely to the methods and rhetoric of fairness rather than ratifying a consumerist model of entitlement by deploying an individualistic vision of equality. Second, the justices might have endorsed a robust right …

Becoming Steve Bright, Robert L. Tsai

Faculty Scholarship

This is a "Director's Cut" version of material that appears in condensed form in Robert L. Tsai, "Demand the Impossible: One Lawyer's Pursuit of Equal Justice for All" (Norton 2024). This essay to be published in Kentucky Law Journal was originally Chapter One. Drawing on archival documents and interviews, this essay delves into Stephen Bright's childhood growing up in Kentucky first in segregated Danville and later in Lexington once he emerges as a social activist and student body president. Special attention is paid to the Vietnam era protests that engulfed the University of Kentucky in the wake of the Kent …

The Chicago School’S Coasean Incoherence, Madison Condon

Faculty Scholarship

This comment traces the divergent legal academic interpretations of the Chicago School's Ronald Coase and where their influence lands--revealing the law’s inconsistent conception of just what a corporation is or should be. By following Alyssa Battistoni's investigation of the origin of the "externality," we can see the late 60s and early 1970s as a pivotal era. People were waking up to the collective costs of industrialization and pushing back against corporate power. Against this democratic wave, the writings of the Chicago School worked to separate one human person into her different roles in the economy—consumer, worker, shareholder. They used the …

The War On Higher Education, Athena Mutua, Jonathan Feingold, Angela Harris, Emily Houh, Matthew Patrick Shaw, Frank Valdes

Faculty Scholarship

Academic freedom is under assault in the United States.¹ Like the authoritarian populism rising across the globe, domestic attacks on individual professors and academic institutions buttress a broader and multifaceted campaign to undermine multiracial democracy and the institutions that sustain and safeguard it.² The individuals and entities driving this antidemocratic movement have also targeted the electoral process; public education; the right to bodily autonomy; the civil rights and liberties of minoritized and marginalized communities; and freedom of speech and expression (increasingly marshaled against pro-Palestinian advocacy).³ Their openly stated goal is to delegitimize, defund, and “lay siege to” …

A Reasonable And Well-Reasoned Teaching Tool In Unreasonable Times, Jasmine Gonzales Rose

Faculty Scholarship

Devon Carbado’s most recent book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, is a must-read for anyone studying or concerned with criminal procedure or policing. Unlike some of Professor Carbado’s other work, the brilliance of this book is not necessarily new conceptualizations or theorizations—for which he is well known—but rather centers on accessible pedagogy. If you have studied race and policing, you are not likely to find a new case, study, or reference to scholarship in the book. But, you are going to understand anti-Black racism, policing, the Fourth Amendment, and their intersections better than you did …

Constitutionalizing Racism, Jonathan Feingold

Faculty Scholarship

Unreasonable is Devon Carbado at his best. Through accessible prose, carefully crafted hypotheticals, effective visualizations, and some cross-examination (for the reader), Carbado reintroduces us to the Fourth Amendment. In arresting detail, Unreasonable" exposes how the Supreme Court has turned the Fourth Amendment against “the people”—and specifically, against people racialized as Black. Part of the “Bill of Rights,” the Fourth Amendment was adopted to protect “the right of the people” from police overreach. Yet over the past half-century, the Supreme Court has systematically repositioned the Fourth Amendment as a weapon of police power. Or as Carbado argues: whereas many assume …

A Critical Perspective On Testimonial Injustice: Interrogating Witnesses' Credibility Excess In Criminal Trials, Jasmine Gonzales Rose

Faculty Scholarship

This paper offers a critical race theory perspective on the testimonial injustice experienced by racially minoritized criminal defendants in evidential practice. It builds off Federico Picinali’s paper, inter alia, substantiating how minoritized criminal defendants experience testimonial harm through credibility deficit, by exploring epistemic injustice to the same when prosecutorial witnesses receive identity-based credibility excess. It argues that in an adversarial criminal legal system, the testimonial injustice of credibility excess afforded racial in-group prosecutorial witnesses should be considered in tandem with the testimonial injustice of credibility deficit imposed on racial out-group defendants. Only then can the epistemic harm and resultant …

Confusion, Chaos, And Conflict In U.S. Law And Health Care After Dobbs, Nicole Huberfeld

Faculty Scholarship

The U.S. Supreme Court’s Dobbs decision caused a proliferation of contradictory state laws and judicial decisions that are producing confusion for health care providers, which in turn limits access to care for all patients of reproductive age. This paper documents the rapidly changing legal landscape to investigate and contextualize the significance of these inter‑state conflicts and illustrate how inequities deepen when health care is left in the hands of state governments without national law to provide guardrails. Drawing on interdisciplinary scholarship, including legal, medical, and public health research, this essay considers how traditional federalism theory, which encourages sub‑government variation, does …

Hidden In Plain Sight: Redefining The Field Of National Security, Aziza Ahmed

Faculty Scholarship

Throughout his campaign for presidency, Trump called for a ban on Muslims entering the United States. As President, he kept his word. Only days after he took office, the new administration released the first version of the Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States. The first Executive Order, however, did not say the word Muslim. Instead, it listed only Muslim-majority countries as necessary for restrictions on entry. The Executive Order also trafficked in stereotypes about Muslims, such as the need to ban people who engage in acts of "bigotry or hatred," including honor killings. …