Law Commons^™

Democratizing Restitution: Trust As An Equitable Approach To Competing Claims On Cultural Heritage Objects, Britta Redwood

Articles

As formerly colonized states began to win their independence in the mid-twentieth century, a growing chorus of voices called on museums in London, Paris, Berlin, and other European cities to return objects taken during the colonial period. Having largely ignored these requests until recently, museums throughout Europe and the United States have begun negotiating returns of these objects to their rightful owners. There is a growing recognition among Western cultural institutions that continuing to hold cultural heritage objects taken under conditions of coercion or violence is morally untenable. More recently, some scholars have argued for a human rights approach to …

Property Rights V. Taxpayer Rights: The Battle Over Tax Foreclosures, Stewart E. Sterk

Articles

No abstract provided.

Regulating Robotaxis, Bryant Walker Smith, Matthew T. Wansley

Articles

In several sunbelt cities, commercial robotaxi service has arrived. The leading robotaxi company is providing over 400,000 trips per week. The industry claims that robotaxis will save lives and provide convenient and affordable mobility. Critics counter that they will increase congestion, undermine transit, and subject the public to ubiquitous surveillance. We argue that the social impact of robotaxis depends on how they are regulated. We emphasize two points missing from the debate. First, some of the benefits of robotaxis may be political rather than technological—some longstanding public policy goals may become viable in a robotaxi world. Second, letting one private …

Fraudulent Transfers And Sovereign Immunity, David G. Carlson

Articles

The article argues that the Supreme Court's decision in United States v. Miller was wrongly decided because it failed to recognize that sovereign immunity is waivable and does not protect the government when it trespasses upon preexisting property rights. The analysis contends that fraudulent transfer claims are quasi in rem actions, meaning the sovereign is subject to the incidental procedures of bankruptcy once enmeshed in such proceedings.

How The U.S. Constitution Shapes International Tax Law: Instrument Choice In Tax Agreements, Noam Noked, Young Ran (Christine) Kim, Reuven S. Avi-Yonah

Articles

The U.S. Constitution’s Treaty Clause, which requires Senate approval by a two-thirds vote for treaties, has significantly influenced the development of international tax law. This Article examines the implications of Senate supermajority requirements on bilateral and multilateral tax treaties and agreements, alternative instruments, relevant international tax standards, and global tax governance.

Historically, tax treaties have been approved exclusively as Article II treaties requiring Senate approval. The difficulty of entering into treaties with the United States has influenced the instrument choice and design of U.S. and international tax standards. To address this challenge, several U.S. and international tax reforms have employed …

The Enduring Case For Bankruptcy Exceptionalism, Jared Mayer

Articles

Nearly fifty years after Congress enacted the Bankruptcy Code, a debate has emerged over the existence and desirability of “bankruptcy exceptionalism”: the idea that bankruptcy law should utilize “flexibility, creativity, and pragmatism over technicalities of process and form” to “prioritize fidelity” to “the purposes for which it was created.”  This question is especially salient in the world of corporate reorganizations, where distressed companies and their investors retain counsel precisely for the purpose of hammering out deals in complex commercial settings. In this Essay, I defend bankruptcy exceptionalism in corporate reorganizations.  I show that bankruptcy exceptionalism is a necessary and desirable …

Challenging Agency Deregulation, Todd S. Aagaard

Faculty Publications

The administrative state is experiencing two seismic shifts. First, in recent years, the Supreme Court has issued a series of decisions that significantly curtailed the powers of administrative agencies. Second, President Donald Trump is using administrative agencies to aggressively deregulate in his second term. The conventional wisdom is that the Supreme Court’s recent precedent will facilitate the Trump Administration’s deregulatory agenda.

This Article argues the opposite. Instead of promoting agency deregulation, recent Supreme Court precedent restraining agency authority provides a potentially powerful basis for challenging agency deregulation as administrative overreach. Time and time again, the Court has taken agencies to …

The Weight Of Stigma, Rebekah A. King, Michael S. Sinha

All Faculty Scholarship

Many health care providers, both implicitly and explicitly, perpetuate stigma in their treatment of patients classified as obese. While medical professionals understand that a one-size-fits-all approach to treatment is ineffective, patients classified as obese are frequently offered limited treatment options that fail to account for their unique needs. Access to a range of effective treatment options has historically been limited, but new GLP-1 receptor agonist medicines like Wegovy (semaglutide) and Zepbound (tirzepatide), have shown incredible promise in addressing the obesity crisis. Unfortunately, these transformative drugs are costly, in high demand, and not widely covered by insurance, rendering them inaccessible for …

Integrating Human Rights Into State And Federal Court Litigation, Lauren E. Bartlett

All Faculty Scholarship

Human rights have never been more important in the United States as they are today. After more than 10 years of dormancy, the seminal work that guides public interest attorneys in incorporating human rights work has been finally updated. The Human Rights in the U.S. Handbook for Public Interest Attorneys is a handbook that provides practical direction to public interest attorneys, including clinical law teachers, legal aid attorneys, public defenders, and others, on how to use human rights in their everyday work. The Handbook invaluably advises attorneys on best practices for using human rights arguments before U.S. state and federal …

The Asexual Assumption, Faith K. Whatley-Blaine, Michael S. Sinha

All Faculty Scholarship

Inclusion-focused dating shows such as ‘Love on the Spectrum’ feature individuals with developmental or neurological disabilities on a quest for love. Despite the focus on disability representation, these shows perpetuate stigma against the disabled community by fostering an infantilizing portrayal of individuals with disabilities. This portrayal undermines the premise of encouraging meaningful romantic relationships and reinforces the stigmatizing association of asexuality with disability. This framing aligns with the broader societal narrative that individuals with disabilities are incapable of or lack interest in participating in romantic relationships or physical intimacy.

The stigma that associates asexuality with disability extends beyond mere entertainment, …

Governing The Digital Commons, Madelyn Rose Sanfilippo, Brett Frischmann, Michael J. Madison, Katherine J. Strandburg

Faculty Publications

The digital commons, as the coproduction of data, digital cultural products, and community, raise a variety of governance issues. From questions of participation, including voice mechanisms, to the legitimacy of decision-making or ownership, to specific action arenas, governance is complex and dynamic, reflecting the characteristics of the networks in which these commons are situated. This mini-track explores governance challenges and solutions across an array of case studies to highlight governance failures and solutions, many of which focus on reconciling the intersections of different action arenas and aligning policies with contextual norms.

The Evolution Of School Accountability In Virginia: Research, Early Results, And Implications For Policy And Practice, David Naff, William L. Parker, Meleah Ellison, Amy Bollt, Andrea Herndon, Paula Muente Mizushima, T'Airra Belcher, Lauren Grob, Lindsay Duncan, Kelly Denny, Emily Leavitt, Gyun Min Jung, Theresa Thompson, Sandra Rucker, Meredith Collier, Jamelle Simmons, Samantha Hope

MERC Publications

This MERC research and policy review focuses on the School Performance and Support Framework (SPSF), Virginia's school accountability system. It synthesizes relevant research literature, student outcome data, and information about accountability systems in other states to provide context, projections, and potential next steps for the SPSF. It concludes with implications and recommendations for state policymakers and education leaders, school boards and division leaders, and school leaders and educators.

Standard Textualism, James A. Macleod

Articles

For as long as legal scholars have been writing about the rules-versus-standards distinction, textualism has been understood to produce characteristically rule-like law. This Article argues for the opposite view. Far from generating the “law of rules” that Scalia famously envisioned, the rule of modern textualism produces a law of standards—much more so than anybody, proponent of textualism or critic, appears to have recognized.

Two aspects of today’s textualism produce this result. The first is its emphasis on ordinary language and communication. Modern textualism typically produces standards because ordinary language and communication are typically standard-like. The second is modern textualism’s drive …

Trophy Assets, Aneil Kovvali

Articles

Rich people like to own things that make them look cool. When the thing in question is a car, house, or boat, the implications are limited. But sometimes very rich people own assets that are more important. Within media, Elon Musk acquired Twitter, Jeff Bezos ac-quired the Washington Post, and Patrick Soon-Shiong acquired the Los Angeles Times. There has also been a craze for aerospace: Musk with Space X, Bezos with Blue Origin, Richard Branson with Virgin Galactic, and going back further, Howard Hughes with Hughes Aircraft Company. It is often difficult to understand the behavior in purely finan-cial terms, …

The Future Of Crypto-Asset Regulation Under Wto Law, Ines Willemyns

Vanderbilt Journal of Transnational Law

No abstract provided.

A Dose Of Accountability: Fixing Treaty Enforcement To Combat State Complicity In Transnational Illicit Fentanyl Trafficking, Caitlin Sharma

Vanderbilt Journal of Transnational Law

The international fentanyl crisis underscores significant gaps in treaty enforcement, particularly with state accountability for drug manufacturing and export practices leading to illicit fentanyl trafficking. Despite preventive measures established by United Nations drug conventions, legal loopholes in these provisions impede meaningful cooperation between state parties. This Note uses key countries, including the United States, Canada, Mexico, China, and India, as case studies in both producing and receiving fentanyl and its precursors. It evaluates current proposals to mitigate the crisis, such as enhanced international cooperation and the potential expansion of the International Criminal Court’s jurisdiction. However, these solutions remain insufficient due …

Uncharted Waters: Barriers To Ocean Carbon Removal In The High Seas Under Unclos And The Bbnj, Connor Stevens

Vanderbilt Journal of Transnational Law

No abstract provided.

The Effectiveness Of Training On The Use Of Project-Based Learning Methods In Developing The Teaching Skills Of Middle School Science Teachers, Essa Dakheel Alrehaly

University of Tabuk Journal for Humanities and Social Sciences

The current research aimed to measure the effectiveness of training on using project-based learning methods in developing teaching skills among intermediate science teachers. To verify the research hypotheses, a cognitive test and an observation card were used. The experimental treatment materials included the training program in light of project-based learning methods to develop teaching skills among intermediate science teachers. The current research used the experimental method with a quasi-experimental design based on a single-group design with a pre-post application to determine the effect of an independent variable on a dependent variable. The research sample consisted of an experimental group of …

Consumer Rights In E-Commerce Contracts Under The Saudi Legal System: Reality And Challenges, Saeed Abdullah Badawi Al-Zahrani

University of Tabuk Journal for Humanities and Social Sciences

E-commerce is rapidly evolving in the Kingdom of Saudi Arabia, which necessitates the intervention of the Saudi legislator to provide greater protection for consumers who face various challenges in e-commerce contracts. The central research problem lies in identifying the challenges facing consumer rights in e-commerce contracts under the Saudi legal system and exploring ways to enhance consumer protection in this field - a question this study seeks to answer. This study aims to clarify the concept of e-commerce and the notion of consumer rights in e-commerce, while also highlighting the most significant challenges consumers face in such contracts. Moreover, it …

The Judgments Of The Commentators On Ibn Malik's Statements Concerning Apparent Discrepancies Between Al-Tashil And Its Commentary: A Critical Study, Sarah Abdullah Abdul Aziz Al-Sabih

University of Tabuk Journal for Humanities and Social Sciences

This study examines the instances in which commentators on al-Tashil pointed to what appears to be a difference between Ibn Malik's statements in Tashil al-Fawa'id wa-Takmil al-Maqasid and his Sharh al-Tashil. It aims to analyze these judgments and assess their validity considering textual context and grammatical methodology. Adopting a descriptive-analytical approach, the study correlates the concise formulations of the Tashil with their expanded explanations in the commentary and traces the criteria employed by the commentators in identifying difference or inconsistency. The findings indicate that most cases described as contradiction do not constitute genuine inconsistency. Rather, they result from variation in …

Exploit Machina, Andrea Matwyshyn

Faculty Scholarship

Over half a century ago, Hannah Arendt cautioned us to “think what we are doing” when we build new technologies. Engaging with her counsel and a set of historical case studies, this Article frames what it calls exploit machina problems. Exploit machina refers to situations where broken technologies and broken governance combine to irreparably harm the public. In other words, exploit machina involves organizational choices to knowingly leverage technology as part of legally problematic conduct, including various forms of fraud. In the language of data science, exploit machina situations implicate strategic decisions in building and managing artificial intelligence (AI); they …

Neuro-Advocacy: Harmonizing Persuasion With The Operation Of The Brain, Gary Gildin

Faculty Scholarship

The most significant contemporary advances in effective courtroom advocacy will emerge from what on the surface is an unlikely source: neuroscience. Revolutionary advances in technology for the first time allow us to see how the human brain makes decisions. The findings are wholly inconsistent with how the trial process presupposes the finder of fact will perceive and use information delivered by lawyers and witnesses. Consequently, lawyers seeking to persuade jurors (and judges) must reframe their advocacy to align with what we have learned about how the minds of these decision-makers will receive testimony and argument and use these inputs to …

Crypto Exchanges In Market Regulation, Yesha Yadav

Vanderbilt Law Review

The cryptocurrency market has proven notoriously challenging to regulate despite a decade during which it has gained in economic size, sophistication, and cultural impact. Even as repeated crises have left ordinary savers wiped out, regulation has shown itself to be woefully absent as a means of mitigating risks ex ante or helping cover the cost of damage ex post. This Article looks to break this deadlock by proposing a tried-and-tested solution: It argues that regulators should task crypto exchanges with providing oversight as self-regulatory organizations of the crypto market in which they play an anchoring role. It offers three supporting …

A Direct Path Should Be Easy To Follow: Reframing The “Direct Effect” Test For Jurisdictional Immunity Under The Foreign Sovereign Immunities Act, Greggory Cashmark

Vanderbilt Law Review

As sovereign nations become more involved in international commercial dealings, it becomes more important to establish a reliable and stable framework for resolving disputes with foreign sovereigns. The FSIA is the result of a long historical trend towards establishing that framework. While the FSIA is a step in the right direction, there are a number of interpretive questions regarding where it places the boundaries of a court's jurisdiction over foreign sovereign activity. While these questions remain open and while courts continue to find reasons to keep them open, they undermine the principal purpose of the FSIA: predictability. There is no …

Presidential Immunity: Before And After Trump, Thomas P. Schmidt

Vanderbilt Law Review

'All the officers of government," the Supreme Court said long ago, "from the highest to the lowest, are creatures of the law, and are bound to obey it." Despite that ringing and categorical language, however, the Court has held that the President-the "highest" and most powerful of all government officers-is "immune" from judicial oversight in several respects. Indeed, when the Court held last Term that former presidents are presumptively immune from criminal prosecution for officials acts, the dissenters warned: '`n every use of official power, the President is now a king above the law."

This Article unpacks the various presidential …

Application Paths Of Semantic Modeling In Financial Fraud Detection And Risk Identification, Victor P. Gauthier, Daniel S. Wu

Computer Science Faculty Publications

Financial fraud and risk pose significant threats to economic stability and individual well-being. Traditional detection methods often struggle to keep pace with increasingly sophisticated fraudulent schemes. Semantic modeling, which focuses on understanding the meaning and relationships within data, offers a promising avenue for enhancing fraud detection and risk identification. This review paper explores the application paths of semantic modeling in this domain. We begin with a historical overview of fraud detection techniques, highlighting the limitations of traditional approaches. Subsequently, we delve into core themes, including knowledge graph-based fraud detection and semantic rule-based inference for risk assessment. We then compare and …

The Deregulation Of Cancer, Daniel G. Aaron

Utah Law Faculty Scholarship

Fifty years ago, the U.S. embarked on a radical new path. Under pressure from the environmental movement, Congress passed an array of statutes aimed at regulating carcinogens out of our world. This regulatory experiment sprawled from air and water to food and consumer products.

Legal scholars have paid scant attention to this wave of cancer regulation despite its size and importance and the public’s apparent interest in avoiding carcinogens. But there is a growing literature finding flaws with individual regimes within the framework, such as the Clean Air Act, the Toxic Substances Control Act, and the Tobacco Control Act. In …

The Crisis In U.S. Cancer Care: Law, Markets, And Privatization, Daniel G. Aaron

Utah Law Faculty Scholarship

Cancer is surging among youth and young adults in the U.S., yet instead of public regulation addressing its root causes, we have outsourced the management of cancer to the private sector.  A suite of laws, embodying faith that corporations will cure cancer, has subsidized the cancer biomedical enterprise and transformed quasi-public institutions into marketized, profit-seeking entities.  These changes, across patent law, healthcare law, innovation law, and Food and Drug Administration (FDA) law, have privatized cancer. 

The market failures I describe in U.S. cancer care raise larger questions about who we entrust with managing critical social problems.  This Article provides theoretical …

Negligent Hiring: Recidivism And Employment With A Criminal Record, Benjamin David Pyle

Faculty Scholarship

This Article tackles a difficult legal and policy challenge— reducing the impact of criminal records on job applicants’ chances in a manner that does not spur more discrimination—by looking at how another area of law, tort liability, impacts employers’ decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, …

Measuring Lawyer Mental Illness: Evidence From Two National Surveys, Benjamin David Pyle, Clifford Rosky

Faculty Scholarship

The American Bar Association declared a “well-being crisis” among lawyers, but the empirical basis for this claim has been contested in recent years. This study systematically compares two high-quality, nationally representative surveys —the National Health Interview Survey (NHIS) and the National Survey on Drug Use and Health (NSDUH)—to measure the prevalence of mental illness and alcohol misuse among lawyers. In both surveys, lawyers report elevated rates of alcohol misuse compared to the general public and similarly educated peers. The NHIS finds that lawyers experience psychological distress at rates lower than the general public and similar to, or moderately higher than, …