Vanderbilt Law Review

Print Archive

The Vanderbilt Law Review publishes six times a year (January, March, April, May, October, and November). We have two selection cycles (spring and fall) per year.

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Section Contents

Volume 78, Issue 4

  • Goodbye, Zoning?

    May 2025 | Michael Allan Wolf | Article | This Article is the first detailed look at what would happen if zoning’s critics got their way. The most efficient means for erasing zoning from American law would be for the U.S. Supreme Court to find it unconstitutional, so this Article features excerpts from three fictitious Supreme Court opinions that reflect the jurisprudence of today’s iteration of the Roberts Court. Unfortunately for those who see the elimination of zoning as a magic bullet for many of society’s ills, a judicial declaration that zoning violates the protections afforded by the Due Process, Takings, Equal Protection, and Contracts Clauses would only result in the re-creation of some of zoning’s most problematic aspects, bringing American society back to square one. Moreover, eliminating classic (“Euclidean”) zoning would invalidate modern modifications that respond to current socioeconomic and environmental conditions. Rather than waving goodbye to zoning, this Article offers four achievable steps that local and state governments can take today to continue the longstanding process of adapting zoning (the good and the not-so-good) to changing realities.

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  • The Illusion of Stability in Family Law

    May 2025 | Kaiponanea T. Matsumura | Article | Family law’s veneration of stability imperils already-marginalized family relationships. This Article proposes two reforms. Stability writ large should often be discarded in favor of specific markers—whether duration, financial security, psychological attachment, or others—that can be verified and weighed in light of desired policy outcomes. Scholars and lawmakers must also identify values beyond stability—such as fluidity, resilience, and satisfaction— to guide legal reforms and judicial decision making.

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  • A Crust of Bread: Religious Resistance and the Fourteenth Amendment

    May 2025 | Kurt T. Lash & Stephanie Hall Barclay | Article | In Employment Division v. Smith, the U.S. Supreme Court denied heightened constitutional protection to religiously motivated exercise burdened by neutral and generally applicable laws. The history presented in this Article suggests that the Smith approach conflicts with the original understanding of the Fourteenth Amendment. Out of the crucible of religious abolitionist resistance to the Fugitive Slave Act emerged a substantive theory of constitutional religious freedom: American citizens should have the right to obey the Biblical command to care for the needy and provide the hungry a “crust of bread,” even if doing so was contrary to neutral and generally applicable state or federal law. This understanding of religious liberty informed the constitutional ideas of Reconstruction-Era Republicans and, ultimately, the original understanding of the Privileges or Immunities Clause of the Fourteenth Amendment. After canvassing the historical evidence, the Article explores how replacing the Smith test with a strict scrutiny test would better protect post– Fourteenth Amendment free exercise. At the very least, the evidence in this Article also supports a trajectory the Supreme Court has been on in recent cases to narrow the application of Smith by dramatically limiting the types of laws that can qualify as being neutral and generally applicable.

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  • Congress’s Power Over the Electoral Count

    May 2025 | Larry Schwartztol | Article | This Article aims to fill that gap. It does so in two ways. First, it engages with the skeptics of Congress’s authority on their traditional terrain, locating ample congressional authority grounded in the text, structure, and history of Article II, the Necessary and Proper Clause, and the Twelfth Amendment. The Article then seeks to expand the analytic framework by focusing on a constitutional provision that tends to stay out of the limelight: the Twentieth Amendment, which reconfigures the period between Election Day and Inauguration Day. In defending Congress’s authority to pass laws regulating the counting of electoral votes, this Article provides the first scholarly treatment of the Twentieth Amendment’s significance in this area.

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  • Defense Wins Championships (and Labor Disputes): How the Minor Leagues Can Field Their Position Against MLB’s ‘Inside Baseball'

    May 2025 | Blake Morain | Note | This Note defends against Major League Baseball’s unilateral, capital-driven action by arguing that the number of affiliated minor league teams constitutes a mandatory subject of bargaining under the National Labor Relations Act. Beyond offering the Major League Baseball Players Association a new pitch in its arsenal to advocate for overturning baseball’s historic antitrust exemption, a ruling that contraction is a mandatory bargaining subject is necessary to ensure the continued viability of minor league baseball.

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Volume 78, Issue 3

  • Super-Canons

    April 2025 | William N. Eskridge | Article |

    Especially since 2017, the Roberts Court has been imposing a new regime onto American public law. The new regime is paring back the authority of expert agencies to implement their delegated responsibilities, reducing the power of Congress to make long-term delegations while enhancing the power of the states and the President (and the U.S. Supreme Court itself), protecting and encouraging expression of religious values in public and commercial fora, limiting women’s rights to reproductive choice, and reducing the capacity of state and private institutions to inculcate diversity and inclusion.

    This Article maintains that the new regime is not entirely driven by constitutional and statutory precedents, nor even by a neutral reading of legal texts and original public meaning. Relevant legal materials are filtered through political philosophies valued by the majority Justices. Inspired by Friedrich von Hayek, Edmund Burke, and Patrick Henry, the Roberts Court’s ideal America is not an administrative state dictating enlightened plans for a structured market economy, a woke pluralism, and a society of rights-entitled citizens. The majority is moved by a vision that starts with our historically situated American culture and traditions, the dynamics of which are dominated not by collective reason and scientific expertise but by the spontaneous play of innumerable minds within a matrix of moral values, beliefs, and customs.

    This Article applies that suite of closely related political philosophies to understand the Court’s big regime-changing decisions, which have been widely criticized as lacking support in standard legal sources (text, structure, precedent). The Justices have tried to bridge the gap by translating the political philosophies into novel or supercharged clear statement rules and by reading statutory and constitutional texts through the lens of “Super-Canons” reflecting the political philosophies. This is a breathtaking constitutional revolution seeking to remake America in light of a vision that is revolutionary.

    Can the Roberts Court’s vision and doctrinal regime change be defended? The political philosophies reflected in the Super-Canons are strongly related to the “Old Whig” tradition important to the Founding Era of American constitutional history. And it is a vision that half the country seems to accept— but half the country does not. Also, the Super-Canons represent a challenge to the ability of the United States, and the world community, to confront several existential challenges facing us in the next thirty years. In a final irony, the Court’s recent presidential-powers jurisprudence is at war with the philosophies of the Super-Canons and with the rule of law itself.

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  • The Purpose of the Preliminary Injunction

    April 2025 | Samuel L. Bray | Article |

    This Article explores a reshaping of the preliminary injunction that is occurring in the federal courts. A preliminary injunction is designed to be a “hold in place” order, blocking actions by the parties that would undermine the efficacy of the court’s remedial options. But the preliminary injunction is becoming a device for accelerating the merits decision. Instead of a four-factor test for preliminary relief, increasingly there is one factor: the merits. This Article critiques this transformation, and it argues that the preliminary injunction should be re-centered on the protection of the court’s remedial options.

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  • Understanding Brady Violations

    April 2025 | Jennifer M. McAward | Article |

    This largest-ever study of adjudicated violations of Brady v. Maryland provides a detailed and nuanced understanding of who suppresses material evidence in criminal cases, as well as why, how, where, and how often. Its findings complicate the conventional wisdom that Brady violations are the work of nefarious prosecutors who intentionally withhold material evidence from criminal defendants. While it is true that “bad faith” permeates this area of constitutional noncompliance, a substantial minority of Brady cases stem from “good faith” errors by prosecutors and suppression by law enforcement officers. Mostviolations occur in a small number of states, and most often, state courts provide relief. And while there is not quantitative evidence of an epidemic, the individual effects of Brady violations are severe. On average, a defendant whose Brady rights are violated spends more time in prison than a defendant who is later exonerated.

    When government officials routinely violate a clearly established constitutional right like Brady with such negative consequences to the injured parties, the time is ripe for evidence-based interventions to enhance constitutional compliance. The insights from this study point to a new range of strategies. For example, focusing on preventing “good faith” Brady errors, especially in non-homicide cases, may be substantially more productive than solely focusing on punishing “bad faith” Brady violations—a tactic that has proven to be frustratingly unsuccessful. Relatedly, working with law enforcement officers to better identify and submit potential Brady evidence to prosecutors may create a smoother pipeline for the eventual production of material evidence to defendants. Ultimately, by providing unprecedented detail about historical Brady violations, this study will serve the cause of future overall Brady compliance.

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  • Rethinking the Litigation Boom

    April 2025 | Charlotte S. Alexander | Article |

    This Article rethinks the functions and functioning of litigation booms. Using an original data set that tracks Fair Labor Standards Act cases during the 2000–2016 period, the Article shows that booms are not anomalies but are instead an expected behavior in our distributed system of civil law enforcement. Specifically, plaintiffs and their lawyers “herd” or converge on a particular type of case, fueled by information transmitted via networks, made available to the general public, or both. The data also reveal that booms can end on their own, reaching a natural tipping point without legislative or judicial retrenchment. This analysis has normative implications, suggesting that litigation suppressing legislative or judicial intervention may not always be necessary, though tweaks to system design could achieve more efficient outcomes and more equitably distributed access to legal representation.

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  • The Pamela Anderson Exception: How the Public Figure Doctrine Makes Involuntary Pornography a Subject of Public Concern in Congress’s Revenge Porn Statute

    April 2025 | Jared Kossover | Note |

    Congress’s chosen remedy for the proliferation of online revenge porn has a design flaw. The Violence Against Women Reauthorization Act, codified in 15 U.S.C. § 6851, provides a civil right, enforceable in federal court, to victims of nonconsensual pornography. However, exceptions for matters within the “public concern,” written into the statute with the First Amendment in mind, weaken the force of the Act and threaten to make its proscriptions a nullity. This Note calls on Congress to narrow the public concern exception in the Violence Against Women Reauthorization Act to include only matters of political significance. Such an amendment will honor the First Amendment’s guaranty of free speech and ensure that evolving notions of newsworthiness do not work to burden those seeking relief under the Act.

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  • Energizing Federal Action Toward a More Coherent National Nuclear Waste Policy

    April 2025 | Sydney C. Schoonover | Note |

    This Note examines the tension between the need for energy decarbonization and the deficiencies in the United States’ federal nuclear waste management framework that discourage the buildout of nuclear power. It concludes that effective high-level waste management is an environmental imperative, and the development of suitable storage and disposal is a necessary precursor to the expansion of nuclear power. To that end, the federal government must specify and effectuate a coordinated nuclear waste policy. Federal agencies should rely on existing statutory authority to slow the accumulation of spent nuclear fuel at reactor sites, for example, by enabling and incentivizing investment in waste-reduction technologies and processes that are commonplace outside of the United States. Ultimately, Congress must amend unworkable provisions of the Nuclear Waste Policy Act to allow the administrative state to pursue nuclear waste solutions.

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Volume 78, Issue 2

  • In Government We Trust: Judicial Deference to Government Evidence in Removal Proceedings

    March 2025 | Marie S. Celentino | Article |

    On its face, the Form I-213 appears to be a humble bureaucratic form unremarkable to the untrained eye. In reality, this document alone can singularly sustain the federal government’s case for the deportation of a noncitizen in removal proceedings. The Form I-213 sits at the cradle of interlocking judicial and procedural norms within immigration practice that largely diminish the due process rights of noncitizens facing deportation. This Article sheds light on two important but relatively underexamined phenomena that undergird this system: how a disregard for evidentiary rules largely eliminates the government’s burden of proof in removal proceedings and how judicial deference to government agents systemically enables this practice.

    This Article advances a theory of entityness that theorizes the firm and its relationship to the acquisition premium. This theory is the first scholarly analysis to construct a general model of takeover valuation by integrating the modern finance theory of asset value and a corrected Coasean theory of the firm. The acquisition premium is an enigma. Acquirers must pay it. But why? Isn’t the market price tethered to fundamental value through an efficient market? This enigma reveals a key insight about firms. The theory of entityness postulates that the acquisition premium is compensation for a capitalized asset intrinsic in the firm structure.

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  • Shareholder Litigation in Delaware: An Empirical Investigation

    March 2025 | James D. Cox, Randall S. Thomas, Lynn Bai | Article |

    The empirical study of shareholder litigation in state courts is a seriously underexamined subject. To remedy this gap, we collected data on all 4,741 fiduciary duty complaints filed in the Delaware Court of Chancery over a sixteen-year period, from January 1, 2004, to December 31, 2019. After removing the duplicative cases consolidated into a lead complaint, the number of unique complaints was reduced to 2,958 in our dataset. In our coding, we examined over one hundred variables (with many variables being further subdivided into as many as eight subvariables) for each of these cases, including information about the parties, claims, motions, fees, outcomes of each motion filed, and final disposition of the case.

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  • Destroy, Rebuild, Repeat: How to Break the Climate Disaster Cycle

    March 2025 | Mark Nevitt | Article |

    Climate change is fundamentally reshaping how we live, where we live, and whether we invest in or retreat from climate-exposed communities—but climate and disaster law is not changing with the climate. This legal latency is driven by antiquated statutes, doctrines, and policies that have not kept pace with the climate moment. Ex ante adaptation decisions governing where to live are life and death choices that shape ex post disaster response. Laws and policies should facilitate sound climate decision making, but too often they frustrate individual and governmental decisions on whether to stay or retreat. In this Article, I argue that laws designed for a different physical environment, an environment more stable than the one we currently have, harm our ability to respond to climate-induced disasters.

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  • Reasonable AI: A Negligence Standard

    March 2025 | Mihailis E. Diamantis | Article |

    Even as artificial intelligence (“AI”) promises to turbocharge social and economic progress, its human costs are becoming apparent. For example, self-driving technology will someday make traffic jams a thing of the past, but technologists now acknowledge that it will never eliminate all traffic deaths. By design, AI behaves in unexpected ways. That is how it finds unanticipated solutions to complex problems. But unpredictability also means that AI will sometimes harm us. To curtail these harms, scholars and lawmakers have proposed strict regulations (to help ensure firms develop safe algorithms) and strict corporate liability (for injuries that nonetheless occur). These rigid approaches go too far. They dampen innovation and disadvantage domestic firms in the international technology race.

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  • Retaliation and Confrontation of the State

    March 2025 | Jon McNeal | Note |

    Popular resistance to the weaponization of government has eroded in America. On the political Right, the post-Reagan consensus favoring limited government has given way to a new generation of leaders—like Vice President J.D. Vance and Florida Governor Ron DeSantis—who openly advocate for using state power against their political opponents. Collectively they are the New Right: a populist, antiestablishment, conservative movement opposing pluralistic systems, institutions, and cultural elites. While both political liberals and conservatives have wielded state power against their adversaries, leveraging state power to reward friends and punish enemies is fundamental to the New Right’s worldview.

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  • Brain-Dead Surrogacy and Testamentary Disposition: Legal Rights over One’s Body for Reproductive Purposes

    March 2025 | Cassandra L. Nelson | Note |

    Through the advancement of modern medical technology, including life-support machines and in vitro fertilization, it may soon become possible to carry out brain-dead surrogacy—that is, gestational surrogacy in brain-dead carriers. When a person experiences brain death, life-support machines can nevertheless artificially maintain the body’s homeostatic functions, including the ability to gestate a fetus, for several years thereafter. There have already been several reported instances of brain-dead pregnant people on ventilation successfully carrying and delivering children. In light of the United States’ historical interest in promoting family making, this emerging avenue for surrogacy could increase the availability of surrogates and expand opportunities for infertile couples to welcome a child. Yet so far, no literature has considered the implementation of brain-dead surrogacy from a legal perspective.

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Volume 78, Issue 1

  • On Entityness and Takeovers: Acquisition Valuation, Theory of the Firm, and Coase’s Error

    January 2025 | Robert J. Rhee | Article |

    This Article advances a theory of entityness that theorizes the firm and its relationship to the acquisition premium. This theory is the first scholarly analysis to construct a general model of takeover valuation by integrating the modern finance theory of asset value and a corrected Coasean theory of the firm. The acquisition premium is an enigma. Acquirers must pay it. But why? Isn’t the market price tethered to fundamental value through an efficient market? This enigma reveals a key insight about firms. The theory of entityness postulates that the acquisition premium is compensation for a capitalized asset intrinsic in the firm structure.

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  • Discharging Government Debt

    January 2025 | Nicole Langston | Article |

    This Article advocates for targeted reforms to the bankruptcy system and discharge guidelines to promote a more generalized standard of discharge for government-owed debt and further advances the debate about whether there should be nondischargeable debt in the consumer bankruptcy system.

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  • Fighting Mass Arbitration: An Empirical Study of the Corporate Response to Mass Arbitration and Its Implications for the Federal Arbitration Act

    January 2025 | Richard Frankel | Article |

    Mass arbitration represents the newest battleground between corporations and consumer and employee advocates over mandatory arbitration and access to justice. Companies thought they had finally won the arbitration wars after the U.S. Supreme Court ruled that they could insert class action bans into their arbitration clauses, bestowing companies with widespread immunity from a large swath of consumer and employee claims.

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  • Original Discontent

    January 2025 | William Magnuson | Article |

    This Article argues that, in doing so, judges, scholars, and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Their discontent went to the very foundation of the Constitution. In short, many founders believed that the Constitution they created was not, in fact, good law.

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  • Cleaning the Plastic Spring

    January 2025 | Trip Johnson | Note |

    Plastic, unlike aluminum, glass, or paper, poses barriers to recycling that diminish a region’s recycling capabilities. Despite knowing most Americans lack the knowledge necessary to properly discard plastic waste, plastic-producing companies continue to plaster chasing arrows symbols and resin identification codes onto their products. Worse yet, these companies do so without explaining the available recycling opportunities or challenges associated with recycling most plastics. This in turn misleads consumers to believe they are aiding the environment when they “recycle” plastic products that are actually destined for a landfill—thereby contributing to a phenomenon known as greenwashing.

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  • Reversing Perverse Incentives and Aligning Interests: A Statutory Approach to Combatting Sex Trafficking in the Hospitality Industry

    January 2025 | Sara Seymour | Note |

    The hospitality industry has a sex trafficking problem: Seventy-five percent of sex trafficking victims report coming into contact with a hotel at some point during their trafficking. Though hotel franchisors publicly tout their efforts to combat sex trafficking, they are not properly or adequately incentivized to intervene in a meaningful way. The majority of hotels in the United States are franchised, and for every franchised room that is rented out—whether for sex trafficking or otherwise—hotel franchisors receive royalties.

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Previous Issues

November 2024

Volume 77, Issue 6

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October 2024

Volume 77, Issue 5

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May 2024

Volume 77, Issue 4

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April 2024

Volume 77, Issue 3

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March 2024

Volume 77, Issue 2

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January 2024

Volume 77, Issue 1

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