• Vanderbilt Law Review

Vanderbilt Law Review
Publication date:
First document:
Vol. 57 Nbr. 3, April 2004
Last document:
Vol. 67 Nbr. 5, October 2014
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  • Regulation by Hypothetical

    A new paradigm is afoot in banking regulation-and it involves a turn toward the more speculative. Previous regulatory instruments have included geographic restrictions, activity restrictions, disclosure mandates, capital requirements, and risk management oversight to ensure the safety of the banking system. This Article describes and contextualizes these regulatory tools and shows how and why they were formed to deal with industry change. The financial crisis of 2008 exposed the shortcomings in each of these regimes. In important ways, the Wall Street Reform and Consumer Protection Act of 2010 (&quot;Dodd-Frank&quot;) departs from these past regimes and proposes something new: Call it &quot;.&quot; refers to rules duly promulgated under appropriate statu...

  • The Language of Mens Rea

    In prior work, the authors challenged numerous assumptions underlying the Model Penal Code (MPC) mental state architecture, which divides guilty minds into four kinds: purposeful, knowing, reckless, and negligent. In this article, they extend their prior work in two main ways. First, they show that a person's ability to apply the MPC mental states is susceptible to subtle variations in the language that defines and communicates them. Second, they show that even when people can see the mental state distinctions that the MPC draws, they don't necessarily rank order the mental states -- by culpability level -- in the order the MPC assumes. These findings raise questions about the normative basis for the knowing/reckless distinction in the MPC's mental state hierarchy in the context of resu...

  • Speech Beyond Borders: Extraterritoriality and the First Amendment

    Does the First Amendment follow the flag? In Boumediene v. Bush, the Supreme Court categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad. Instead, the Court made the application of such rights, the First Amendment presumably included, contingent on &quot;objective factors and practical concerns.&quot; In addition, by affirming previous decisions, Boumediene also extended its functional test to cover even U.S. citizens, leaving them in a situation where they might be without any constitutional recourse for violations of their First Amendment rights. But lower courts have found in the recent case of USAID v. Alliance for Open Society (&quot;USAID&quot;) an implication that free speech rights exist abroad, at least by U.S. r...

  • Keep Your Friends Close: A Framework for Addressing Rights to Social Media Contacts

    This Note will suggest a framework for addressing the challenges posed by the question of rights to employment-related social media accounts and, more particularly, their contacts. Part II will introduce social media sites. In particular, it will discuss three major examples of social media sites, their value in the employment context for the various parties involved, and how they blur a company's persona with that of the individual maintaining the account. Part III will examine and evaluate potential legal frameworks for conceptualizing and resolving this issue. In particular, it will examine areas of intellectual property law that previously resolved similar questions of rights to intangible property as between an employer and employee. Finally, Part IV will suggest a resolution by dr...

  • Confrontation and the Law of Evidence: Can the Language Conduit Theory Survive in the Wake of Crawford?

    Popularly referred to as the &quot;language conduit theory,&quot; this tool allows courts to infer an agency relationship between a defendant and an interpreter for hearsay purposes if certain factors are met. Until recently, the language conduit, as applied in the Sixth Amendment context, met little opposition across federal circuits. But in 2004, the Supreme Court held in Crawford v. Washington that &quot;testimonial statements&quot; of an unavailable witness could not be admitted unless the defendant had a prior opportunity to cross-examine the witness. This Note analyzes the continued validity of the language conduit theory in the wake of Crawford and its progeny. Part II traces the evolution of the Supreme Court's Confrontation Clause jurisprudence from Ohio v. Roberts through the Crawford line of cas...

  • Trademarked for Death? A Licensee's Trademark Rights After an Executory Contract Is Rejected in Bankruptcy

    When a trustee or debtor-in-possession rejects an executory contract involving trademark rights, courts have two potential approaches for determining who retains the right to use the trademark. One approach terminates the licensee's right, only providing the licensee with the opportunity to sue for rejection damages. The other approach grants the licensee continued use of the trademark rights under the theory that rejection is not rescission but instead is a contract breach whereby the nonbreaching party's rights remain in place. Part II of this Note examines relevant sections of 11 U.S.C. § 365, subsequent amendments under the Intellectual Property Licenses in Bankruptcy Act, and theoretical interpretations and definitions of what &quot;rejection&quot; means within the context of bankruptcy law....

  • The Supercharged Ipo

    A new innovation on the IPO landscape has emerged in the last two decades, allowing owner-founders to extract billions of dollars from newly public companies. These IPOs-labeled supercharged IPOs-have been the subject of widespread debate and controversy: lawyers, financial experts, journalists, and members of Congress have all weighed in on the topic. Some have argued that supercharged IPOs are &quot;brilliant, just brilliant,&quot; while others have labeled them &quot;underhanded&quot; and &quot;bizarre.&quot; In this Article, we explore and explain how and why this new deal structure differs from the more traditional IPO. We then outline various theories of financial innovation and note that the extant literature provides useful explanations for why supercharged IPOs emerged and spread so qui...

  • Against Settlement of (Some) Patent Cases*

    For decades now, there has been a pronounced trend in civil litigation away from adjudication and toward settlement. This settlement phenomenon has spawned a vast critical literature beginning with Owen Fiss' seminal work, Against Settlement. Fiss opposes settlement because it achieves peace rather than justice, and because settlements often are coerced due to power and resource imbalances between the parties. Still, despite these criticisms, settlement remains the norm in civil litigation today. This article considers the settlement phenomenon in the context of patent litigation. While scholars have studied and debated &quot;reverse payment&quot; or &quot;pay for delay&quot; patent settlements in depth, what is missing from the literature is a comprehensive treatment of the normative questions raised by t...

  • States, Agencies, and Legitimacy

    Scholarship on the administrative process has scarcely attended to the role that states play in federal regulation. This Article argues that it is time for that to change. An emerging, important new strand of federalism scholarship, known as &quot;administrative federalism,&quot; now seeks to safeguard state interests in the administrative process and argues that federal agencies should consider state input when developing regulations. These ideas appear to be gaining traction in practice. States now possess privileged access to agency decisionmaking processes through a variety of formal and informal channels. And some courts have signaled support for the idea of a special state role in federal agency decisionmaking. These developments have important implications for administrative law and theory...

  • Bond, Buckley, and the Boundaries of Separation of Powers Standing

    In Buckley v. Valeo, the Supreme Court explained that party litigants with sufficient concrete interests at stake may have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights. A recent Supreme Court decision, on the other hand, supports the opposite conclusion. In Bond v. United States, the Supreme Court unanimously held that a criminal defendant had standing to mount a Tenth Amendment challenge against the federal statute under which she was indicted. The two cases cannot coexist. This note argues in favor of the Bond approach: any plaintiff who has a justiciable injury-in-fact should have standing to assert a separation of powers claim against an administrative agency. In other words, as long as the other c...

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