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 77, Issue 4

  • Dead Bodies as Quasi-Persons

    May. 22, 2024—Ela A. Leshem | Article | 77 Vand. L. Rev. 999 This Article argues that American law treats dead bodies as quasi- persons: entities with a moral status between things and persons. The concept of quasi-personhood builds on dead bodies’ familiar classification as quasi- property. Just as quasi-property implicates only a subset of the rights usually associated...

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  • Anti-Transgender Constitutional Law

    May. 22, 2024—Katie Eyer | Article | 77 Vand. L. Rev. 1113 Over the course of the last three decades, gender identity anti- discrimination protections and other transgender-supportive government policies have increased, as government entities have sought to protect and support the transgender community. But constitutional litigation by opponents of transgender equality has also proliferated, seeking to limit or...

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  • Choosing Sides: On the Manipulation of Civil Litigation

    May. 22, 2024—Yotam Kaplan & Ittai Paldor | Article | 77 Vand. L. Rev. 1211 Our litigation system is broken. Scholars have long warned that professional litigants, such as debt-collecting firms, insurance companies, and commercial landlords, enjoy immense and unfair advantages over private individuals. What has gone unnoticed is professional litigants’ ability to manipulate their litigatory position—that is, to...

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  • Protecting Protected Characteristics: Statutory Solutions for Employment Discrimination Post-Bostock

    May. 22, 2024—Chase Mays | Notes | 77 Vand. L. Rev. 1303 Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Significantly, these protected characteristics are undefined, and judicial interpretations of race, sex, and national origin have allowed employers to lawfully discriminate against proxies for...

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  • On the Defensive: Analyzing Insurers’ Duty to Defend Pharmaceutical Companies for Contributing to the Opioid Epidemic

    May. 22, 2024—Madison Perry | Notes | 77 Vand. L. Rev. 1349 Opioids have had a devastating impact on the United States. They have drained governmental agencies’ resources, decreased property values, and destroyed families and entire communities. A growing number of individuals, local governments, and states have filed lawsuits, aiming to hold pharmaceutical companies accountable for their negligent contributions...

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  • Needful Rules and Regulations: Originalist Reflections on the Territorial Clause

    May. 22, 2024—Anthony M. Ciolli | Essay | 77 Vand. L. Rev. 1263 There are few areas where the current state of the law is as inconsistent, incoherent, and intellectually bankrupt as the law of U.S. territories. The seminal cases in the field are the infamous Insular Cases, where the Supreme Court of the United States held that the...

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Volume 77, Issue 3

  • Radical Administrative Law

    April 2024 | Christopher S. Havasy

    Article | 77 Vand. L. Rev. 647

    The administrative state is under attack. Judges and scholars increasingly question why agencies should have such large powers to coerce citizens without adequate democratic accountability. Rather than refuting these critics, this Article accepts that in scrutinizing the massive powers that agencies hold over citizens, these critics have a point. However, their solution—to augment the powers of Congress or the President over agencies to instill indirect democratic accountability—is one step too quick. We should first examine whether direct democratic accountability of agencies by the citizenry is possible.

    This Article excavates the nineteenth-century European intellectual history following the rise of the modern administrative state as inspiration to illuminate how agencies can improve their democratic credentials to justify their powers over the citizenry. While such thinkers might seem far afield of current public law discussions, this unlikely group of nineteenth-century legal and political theorists has already extensively theorized contemporary concerns about agencies coercing citizens without proper democratic accountability. These theorists, whom I call administrative “radicals,” presented a much bolder conception of the role of agencies in governance than contemporary critics. Instead of stripping agencies of their powers, the radicals proposed democratizing the administrative state so the citizens could instill direct democratic accountability over the agencies that coerced them. Importantly, the radicals influenced the first generation of American administrative law scholars, who looked to these radicals to figure out how to democratize the nascent American administrative state.

    The radical tradition inspires us to transform the relationship between agencies and the citizenry and rethink how agencies fit within the separation of powers and administrative law. Instead of viewing agencies as stuck in the middle of a perpetual tug-of-war between Congress and the President, the radical tradition encourages us to focus on agencies themselves by shaping the relationships between agencies and the citizenry to instill direct democratic accountability. Under this radical separation of powers framework, the people serve as the common source of accountability for Congress, the President, and the administrative state. In doing so, embracing radical administrative law mitigates scholarly and judicial concerns that have inspired the revival of the nondelegation doctrine, elimination of removal protections, and the expansion of the major questions doctrine. The radical tradition also reinvigorates discussions of political equality in administrative law and suggests a reduced judicial role in policing the substance of agency decisions.

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  • Mass Tort Bankruptcy Goes Public

    April 2024 | William Organek

    Article | 77 Vand. L. Rev. 723

    Large companies like 3M, Johnson & Johnson, Purdue Pharma, and others have increasingly, and controversially, turned from multidistrict litigation to bankruptcy to resolve their mass tort liability. While corporate attraction to bankruptcy’s unique features partially explains this evolution, this Article reveals an underexamined driver of this trend and its startling results: government intervention. Governments increasingly intervene in high-profile bankruptcies, forcing firms into insolvency and dictating the outcomes in their bankruptcy cases. Using several case studies, this Article demonstrates why bankruptcy law should subject such governmental actions to greater scrutiny and procedural protections. Governments often assume multiple incompatible roles in these cases, appearing simultaneously as representatives of injured citizens, creditors in their own right, and sovereigns with broader social duties and regulatory powers. These overlapping identities create conflicts of interest that bankruptcy law does not currently police, which can encourage governments to coercively privilege their monetary recoveries over the monetary and dignitary claims of their citizens. This Article argues that bankruptcy law should apply the aggregate litigation concepts of exit, voice, and loyalty to ensure that bankruptcy outcomes are not distorted by governmental intervention. Reciprocally, if mass tort liability does not migrate entirely to bankruptcy, the fiduciary duties and consensual restructuring support agreements of bankruptcy can improve other forms of mass tort resolution.

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  • The Missing “T” in ESG

    April 2024—Danielle A. Chaim & Gideon Parchomovsky

    Essay | 77 Vand. L. Rev. 789

    Environmental, social, and governance (“ESG”) philosophy is the zeitgeist of our time. The rise of ESG investments came against the perceived failure of the government to adequately promote socially important goals. And so, corporations are now being praised and credited for stepping up where the government has fallen short. In this Essay, we contend that the standard narrative of ESG suffers from a major flaw. The reason for this discrepancy is taxes. The companies that are widely perceived as saviors of the ESG era are in fact the cause of some of the main deficiencies ESG seeks to redress. Astoundingly, public corporations—many of which have the highest ESG scores and are the largest recipients of ESG fund investments—are also the biggest tax avoiders. As this Essay shows, through the exploitation of legal loopholes and other grey areas, these companies increasingly deprive governments of the funding needed for the provision of public goods and the promotion of important societal policies, exacerbating administrative inefficiencies and deepening societal inequality—outcomes that are starkly at odds with ESG principles. To address this paradox, this Essay advocates incorporating tax-avoidance behavior into ESG ratings. It also argues that tax considerations should be accorded considerable weight not only by ESG rating agencies but also by institutional investors who shoulder part of the fault for the existing state of affairs. Implementation of this proposal would not only rectify incongruities within ESG investment but also provide the public with a more robust and accurate representation of a company’s genuine ESG standing.

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  • An Evolving Landscape: Name, Image, and Likeness Rights in High School Athletics

    Jan. 26, 2024—Epstein, Grow, & Kisska-Schulze

    Essay | 77 Vand. L. Rev. 845

    Amateur sports have entered a changing landscape. The onset of Name, Image, and Likeness (“NIL”) opportunities at the college level has prompted over half of state high school athletic associations to likewise permit high school student-athletes to pursue similar financial opportunities. The purpose of this Essay is not to argue for or against the emergence of NIL opportunities at the high school level but instead to explore this newly evolving landscape, identify accompanying financial dangers, and propose a statutory framework that builds upon California’s Coogan’s Law—a measure providing financial safeguards to children working in the entertainment industry—to better protect minor student-athletes entering into endorsement contracts.

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  • “Free Speech for Me but Not for Airbnb”: Restricting Hate-Group Activity in Public Accommodations

    April 2024—Sabrina Apple

    Note | 77 Vand. L. Rev. 891

    As digital services grow increasingly indispensable to modern life, courts grow inundated with novel claims of entitlement against these platforms. As narrow, formalistic interpretations of Title II permit industry leaders to sidestep equal access obligations, misinformed interpretations of First Amendment protections allow violent speech and conduct to parade uninhibited. Within the mistreatment of these two established doctrines lies a critical distinction: the former is in desperate need of modernization to fulfill its original intent, and the latter is in desperate need of restoration for the same ends. This climate creates conditions ripe for doctrinal upheaval.

    This Note considers how the rising digital accommodation challenges traditional legal frameworks, particularly as hate groups exploit these new public squares. Analyzed through the lens of Airbnb—its role as a modern public accommodation, its prior experiences with invidious discrimination on its platform, and its confrontations with allegations of discrimination issued by patrons excluded for hate-group affiliation—this Note parses the tension between ensuring equal access and upholding free speech. In so doing, this Note offers a legal framework for analyzing when digital entities qualify as public accommodations under Title II, when accommodations may exclude patrons while upholding Title II values, and what defenses an accommodation may employ if a patron establishes a speech interest. Ultimately, this Note argues that the digital accommodation may legally exclude unprotected traits to meaningfully include those who are protected.

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  • Exasperated But Not Exhausted: Unlocking the Trap Set by the Exhaustion Doctrine on the FDA’s REMS Petitioners

    April 2024 | Michael Krupka

    Note | 77 Vand. L. Rev. 937

    When health is at stake, bureaucratic delays can be disastrous. This is especially true in the field of pharmaceutical regulation. Fortunately, concerned parties—ranging from research institutions and universities to doctors and pharmaceutical companies—can file citizen petitions to urge the Food and Drug Administration (“FDA”) to regulate potentially risky drugs through Risk Evaluation and Mitigation Strategies (“REMS”) programs. But despite submitting comprehensive citizen petitions calling for changes to REMS determinations, petitioners regularly await the FDA’s response for years. When these petitioners, still awaiting an FDA determination, have sought recourse in the courts, the agency has argued that these petitioners have not yet exhausted the FDA’s mandatory administrative remedy. In accepting this argument, courts across the country have misapplied the exhaustion doctrine in FDA cases, depriving potential petitioners of judicial review and leaving the FDA’s original REMS decisions without any oversight. All the while, societal costs of unaccountable drug decisions continue to climb.

    This Note examines the dilemma of REMS petitioners, the “exhaustion trap,” wherein petitioners cannot seek legal remedy until the FDA allows them to exhaust their administrative remedy. Through original empirical analysis, this Note finds the FDA responds to fewer than one-third of REMS petitions before its own 180-day deadline, with petitioners languishing for an average of 937.6 days (2.56 years) before the FDA lets them exhaust this administrative remedy. So, petitioners frequently remain trapped and exasperated, while their remedies—by no fault of their own—remain unexhausted.

    This exhaustion trap is superable, however, and this Note proposes three potential escape routes. First, the plain language of the APA’s statutory provision codifying the exhaustion doctrine—5 U.S.C. § 704, as interpreted by the Supreme Court in the landmark case Darby v. Cisneros—prohibits the exhaustion trap. Second, this Note proposes an amendment to the Food, Drug, and Cosmetic Act that would waive the FDA’s exhaustion requirement when the FDA disregards its own deadline of 180 days. Finally, this Note suggest that courts should waive the FDA’s exhaustion requirement more readily in these cases. Given the stakes for public health, the American people deserve remedies that are actually exhaustible.

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Volume 77, Issue 2

  • Barring Judicial Review

    March 2024 | Laura E. Dolbow

    Article | 77 Vand. L. Rev. 307

    Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of agency action, which this Article refers to as “judicial review bars.” The findings reveal that express preclusion is a phenomenon: at least 190 statutory provisions expressly bar judicial review of agency actions. This Article then creates a taxonomy of actions barred from review. Most review bars target internal management decisions, such as decisions about how to allocate resources, set priorities, and manage personnel.

    Because judicial review has traditionally been considered a core tool for overseeing agencies, this Article next investigates alternative oversight tools for actions barred from judicial review. When judicial review is barred, other structures often exist for political oversight, internal supervision, and public participation. Strikingly, review bar statutes often expressly create structures to facilitate such oversight. Alternative oversight structures include requirements to send reports to Congress, establish internal procedures, consult with stakeholders, and publish decisions. Furthermore, many review bars involve government spending programs, which are subject to appropriations oversight. Like judicial review, alternative oversight tools play an important role in promoting democratic values of deliberation, inclusiveness, and public accountability in the administrative state. A recent example at the Patent Office illustrates how the combination of review bars and alternative oversight tools can balance efficient implementation of programs with the need to protect individual interests and democratic values. Given the significance of alternative oversight tools in monitoring agencies, this Article argues that courts should consider the availability of alternative oversight tools when construing review bars, and policymakers should do the same when designing regulatory programs.

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  • The Labor Gerrymander

    March 2024 | Joel Heller

    Article | 77 Vand. L. Rev. 51

    The foundational metaphor of federal labor law is “industrial democracy.” But like any good metaphor, it is subject to overuse. The National Labor Relations Act (NLRA) grants employees the right to have a say in the decisions that govern their working lives through union representation and collective bargaining. Parties and policymakers often invoke the language of American political democracy when describing and debating that right. Democracy is not a unitary concept, however, and not all norms and concepts from the political sphere can or should translate into the labor sphere.

    This Article interrogates the political-model analogy through the lens of one particular political concept that has found its way into labor-law discourse: the gerrymander. From the earliest days of the NLRA to today’s organizing campaign at Starbucks, employers have accused unions of “gerrymandering” the workplace by seeking to represent groups of employees—in labor-law terms, a bargaining unit—who are likely to choose union representation. The gerrymander analogy has not before faced critical evaluation, and it breaks down upon closer inspection. Legislative redistricting and bargaining-unit determinations are distinct exercises with different stakes. Unit determinations treat self-interest as a feature rather than a bug, are not part of a broader political process, and are unlikely to produce harms like entrenchment and excessive partisanship associated with gerrymanders in the political context.

    By calling attention to this conceptual mismatch, the Article also identifies how overreliance on the political model is detrimental to the promise of industrial democracy. Delegitimizing union organizing as gerrymandering may lead to fewer votes for unionization. This means less worker voice, which both perpetuates the workplace as an essentially autocratic environment and robs society more broadly of the democracy-enhancing spillover effects of unionization. The irony of the analogy is that it uses the pro-democracy concept of fighting gerrymandering to achieve anti-democratic ends. Importing the gerrymander concept into labor law thus harms democracy, in both its industrial and political manifestations.

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  • Too Stubborn to Care for: The Impacts of Discrimination on Patient Noncompliance

    March 2024—Alice Abrokwa

    Articles | 77 Vand. L. Rev. 109

    The role of implicit racial biases in police interactions with people of color has garnered increased public attention and scholarly examination over time, but implicit racial bias in the healthcare context can be as deadly, particularly when it intersects with ableism and sexism. Researchers have found that medical providers are more likely to consider Black patients “noncompliant,” meaning the patient has not adhered to recommended treatment, even without evidence Black patients are less compliant than other patients. Being labeled noncompliant can have grave health consequences; providers are less likely to treat pain aggressively when they consider a patient noncompliant and, subject to certain legal and professional constraints, can deny care altogether.

    Existing legal scholarship has identified thoughtful proposals to limit providers’ ability to reject noncompliant patients; this Article expands upon that work by focusing attention on why Black patients are perceived as less compliant in the first place. This Article further examines the ways in which, among other barriers to compliance, systemic forms of discrimination can lead some patients to actually become noncompliant. To address the impacts of discrimination on patient noncompliance, the Article first builds from a concept in disability civil rights law concerning reasonable modifications. The Article calls for providers and the healthcare system to shift from expecting absolute compliance to providing both individualized modifications and those modifications that have collective benefit. The Article further calls upon providers to redesign their approach to patient care in ways that mitigate provider biases and structurally make it easier for patients to follow a treatment plan they agree with. In legal matters in which a patient’s reported noncompliance is relevant, the Article calls for legal decisionmakers and policymakers to account for how stereotyping and systemic discrimination can affect both providers’ perceptions of and patients’ actual reasons for noncompliance.

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  • The Minimalist Alternative to Abolitionism: Focusing on the Non-Dangerous Many

    March 2024—Christopher Slobogin

    Essay | 77 Vand. L. Rev. 531

    In "The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics," published in the Harvard Law Review, Thomas Frampton proffers four reasons why those who want to abolish prisons should not budge from their position even for offenders who are considered dangerous. This Essay demonstrates why a criminal law minimalist approach to prisons and police is preferable to abolition, not just when dealing with the dangerous few but also as a means of protecting the non-dangerous many. A minimalist regime can radically reduce reliance on both prisons and police, without the loss in crime prevention capacity and legitimacy that is likely to come with abolition.

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  • Res Judicata and Multiple Disability Applications: Fulfilling the Praiseworthy Intentions of the Fourth and Sixth Circuits

    March 2024—Amber Mae Otto

    Note | 77 Vand. L. Rev. 561

    In the United States, the application process to receive disability benefits through the Social Security Administration is often a tedious, multistep procedure. The process becomes even more complex if a claimant has filed multiple disability applications covering different time periods. In that circumstance, the question arises as to whether an administrative law judge hearing a claimant’s second application must make the same findings as the administrative law judge who heard the first application. In other words, how should res judicata function in the administrative law context when a claimant has filed for disability multiple times? Currently, circuits differ on this question. This Note proposes a solution aimed at providing uniformity and ensuring disabled people receive the benefits they need. It proposes that res judicata should not bind findings that would harm a claimant on a future application, while res judicata should bind findings that would aid a claimant on a future application unless new clear-and-convincing evidence indicates the claimant’s condition has improved. The Note then details how such a proposal is within the Social Security Administration’s authority and is consistent with Supreme Court jurisprudence on the matter.

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  • Efficiency at the Price of Accuracy: The Case for Assigning MDLs to Multiple Districts and Circuits

    March 2024 | Isaak Elkind

    Note | 77 Vand. L. Rev. 599

    28 U.S.C. § 1407 allows for the centralization of unique cases into a single forum for pretrial purposes. The product is multidistrict litigation, known colloquially as the “MDL.” While initially conceived as a means of increasing efficiency for only particularly massive, complex litigation, MDLs have become pervasive. Today, over fifteen percent of all civil litigation—and fifty percent of all federal civil litigation—is consolidated into MDLs. Yet, MDLs are commonly overconsolidated, such that only one judge presides over hundreds, thousands, or even hundreds of thousands of individual cases at a time. Fewer than three percent of such cases return to their original forum for trial, meaning that a handful of judges wield considerable influence over a vast portion of this nation’s civil litigation.

    This Note illustrates how the current MDL scheme suffers from two accuracy problems due to concentrated decision making. First, overburdened MDL judges are regularly tasked with making legally dubious decisions, often lacking concrete authority or procedural guidance. This is especially apparent with regard to choice of law: MDL judges, tasked with applying conflicting state and federal law, face an enormous interpretive burden. Such a burden drains the limited judicial resources of an MDL court and often results in judges neglecting to address nuances in conflicting law. Second, there is the problem of inaccurate outcomes, caused by subjecting hundreds or thousands of unique cases to a single, uniform decision. Statistically, the risk of an extreme decisional distribution is so high that risk-averse parties are induced to settle where they otherwise would not.

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Volume 77, Issue 1

  • The Harms of Heien: Pulling Back the Curtain on the Court’s Search and Seizure Doctrine

    Jan. 26, 2024 | Wayne A. Logan 

    Article | 77 Vand. L. Rev. 1

    In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment’s prohibition of “unreasonable” seizures does not bar legally mistaken seizures because “[t]o be reasonable is not to be perfect.” Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be “exceedingly rare.” In a solo dissent, Justice Sotomayor fairly “wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question.”

    This Article provides the first empirical study of state and lower federal court cases applying Heien (from the day it was decided in mid-December 2014 through mid-June 2023). Of the over 270 cases examined, a large majority (over two-thirds) deemed unlawful police seizures reasonable, belying Justice Kagan’s expectation that such cases would be “exceedingly rare.” Moreover, the study makes clear that Heien is being applied well beyond the context in which it arose—an auto stop for a suspected equipment violation. Courts regularly rely on Heien to justify unlawful stops for a broad array of other, often more serious offenses and to justify unlawful arrests of individuals, far more significant intrusions on physical liberty that allow officers to conduct searches. Courts also forgive police mistakes of law regarding Fourth Amendment doctrine, such as the contours of consent and the permissibility of warrantless blood draws. Finally, the study demonstrates that courts lack any consistent analytic rubric for assessing whether a police mistake of law is reasonable, including the critically important foundational question of who (judges, laypersons, or police) should serve as the benchmark “audience” when assessing whether a mistake of law is reasonable.

    In addition to exploring the study’s results, the Article uses Heien to assess the adverse real-world consequences of what would appear an uncontroversial decision by a near-unanimous Court. Heien not only augmented the already troublingly expansive police discretionary authority to seize individuals without warrants; it also significantly undermined the rule of law and undercut separation of powers. By condoning police mistakes of law, the Court at once weaponized statutory ambiguity for use against citizens and encouraged rational ignorance among police, lessening their incentive to learn the scope of the laws they enforce.

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  • The Impact of Banning Confidential Settlements on Discrimination Dispute Resolution

    Jan. 26, 2024 | Blair Druhan Bullock & Joni Hersch

    Article | 77 Vand. L. Rev. 51

    The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop “secret settlements” by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.

    But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public forum. The onus is therefore on victims to go public, and understandably, many victims are wary of doing so. After all, even from a pro-victim perspective, if employers cannot require confidentiality in settlement, claimants could be made worse off through a lower likelihood of settlement and a lower ultimate payout. In this situation, unless victims’ allegations are made public, bans on secret settlements may not deter discrimination.

    At the time states enacted confidentiality bans, there was no empirical evidence supporting these bans’ deterrent effects. This Article offers the first empirical assessment of laws barring confidentiality provisions in employment discrimination settlements. Using data on large samples of employment disputes, we leverage the variation in state legislation to empirically test the effects of these bans on filing and disposition of discrimination claims in arbitration and courts. Our results suggest an increase in the filing of claims in federal court, which is encouraging evidence of the overall deterrence value of the laws. However, the results also show a small decrease in settlement in federal court and arbitration, which may weaken the deterrence value of confidentiality bans unless plaintiffs are more likely to prevail. To achieve a higher deterrent effect, legislatures should couple these bans with additional measures, such as increasing the likelihood that a victim prevails in court and increasing the amount of damages that a victim can be awarded.

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  • Access to Justice for Black Inventors

    Jan. 26, 2024—Jordana R. Goodman & Khamal Patterson

    Articles | 77 Vand. L. Rev. 109

    To receive a patent, an inventor must meet certain inventive and procedural standards. Their invention must be novel, nonobvious, and written in such a way that any person skilled in the inventive subject can make and use the invention without undue experimentation. This process is far from objective.

    An inventor is not always communicating within their own social circle. An inventor is required to communicate their invention so that a patent examiner believes a person having ordinary skill in the art (“PHOSITA”) would recognize the invention as nonobvious. Moreover, a fictitious skilled person must be able to make and use the described invention without undue experimentation, and a patent examiner will judge whether the patent application’s written description has met this standard. Many inventors choose to navigate this difficult communication path with the help of a patent practitioner; this can either help to ease or exacerbate communication obstacles between examiners and inventors. As shown in this Article, the largely homogenous patent gatekeepers—practitioners and examiners—erect communication barriers to entry for inventors from underrepresented minority groups.

    Inventors must ensure the majority-group-based practitioners and examiners recognize valuable distinctions of the invention over current technology and understand how to use the new invention without undue experimentation. When the patent practitioner and examiner communities do not share the same primary cultural experience as an inventor or an invention’s expected users, this hurdle compounds. Some inventors are disproportionately burdened when describing their invention; some must supplement the practitioners’ and examiners’ lack of systemic cultural capital more than others.

    Through a case study of Black hair-care patents, this Article adds to the literature by highlighting hermeneutical injustices for Black inventors through a cultural-capital lens. This Article is the first in a series of papers showing how the majority-culture bias in patent law and the lack of resources to bridge minority- and majority-group-derived cultural-capital gaps disparately affect those inventing in minority-group cultural spaces. The cultural gap between minority-group inventors and patent practitioners, nearly all of whom are majority group, leads to inadequate and unequal representation and decision making. This Article calls upon the United States Patent and Trademark Office (“USPTO”), patent attorneys, and academics to create a more equitable patent system by altering patent practice, legal education, and ethics rules.

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  • Eavesdropping: The Forgotten Public Nuisance in the Age of Alexa

    Jan. 26, 2024—Julia Keller

    Article | 77 Vand. L. Rev. 169

    Always-listening devices have sparked new concerns about privacy while evading regulation, but a potential solution has existed for hundreds of years: public nuisance.

    Public nuisance has been stretched to serve as a basis of liability for some of the most prominent cases of modern mass-tort litigation, such as suits against opioid and tobacco manufacturers for creating products that endanger public health. While targeting conduct that arguably interferes with a right common to the public, this use of public nuisance extends far beyond the original understanding of the doctrine. Public nuisance has not been applied, however, to another prominent contemporary issue: privacy violations by always- listening devices. Plaintiffs have sued Google, Amazon, and Apple for their smart devices that listen and record snippets of conversations. But not one of these cases cites public-nuisance law as a basis for liability, even though the underlying wrong—eavesdropping—was one of the categories of conduct that fell within the earliest definitions of public nuisance.

    This Article explores the history of eavesdropping as a public nuisance at common law and throughout U.S. history. It explains the public nature of the wrong underlying eavesdropping and why actions that invade individuals’ privacy should be understood as wrongs against the public at large. It then applies public-nuisance law to always-listening devices, arguing that public nuisance could serve as a basis for addressing privacy issues arising from modern technology or as a common-law analogue to make intangible privacy harms justiciable in federal court.

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  • The Financialization of Frequent Flyer Miles: Calling for Consumer Protection

    Jan. 26, 2024—Ari Goldfine

    Note | 77 Vand. L. Rev. 233

    Airlines’ frequent flyer programs operate more like a monetary system, with points as a form of currency, than a typical discount or rewards plan. In fact, airlines’ power over points is even more extensive than that of a central bank over currency—beyond simply determining how many points are in circulation, airlines also control the value of points at redemption, how many points consumers can accumulate, and when points expire. This financialized form of frequent flyer programs has proven to be lucrative. For the Big Four airlines, frequent flyer programs are worth markedly more than the business of providing air travel itself. Much of this profit stems from selling points to third parties, like banks, which use the promise of points to incentivize consumers’ credit card spending.

    The very structure of frequent flyer programs presents a problem for consumer protection. The value of these programs relies on consumers’ belief in the value of points. At the same time, the value of these programs also depends on preventing consumers from efficiently redeeming their outstanding points, which would present an unsustainable cost for the airlines. In other words, the value of these programs stems from ensuring consumers believe that points are highly valuable, while limiting the points’ actual value. This market structure relies on keeping consumers in the dark.

    Because the structure of frequent flyer programs depends on consumer deception, regulatory action is necessary. To that end, this Note analyzes the sometimes-overlapping regulatory mandates of the Federal Trade Commission, Department of Transportation, and Consumer Financial Protection Bureau. It then proposes that the agencies act to provide much-needed transparency in the market for frequent flyer points. These proposals aim to prevent the airline industry from subsidizing the provision of air travel with profit driven by consumer mistake and misrepresentation.

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  • Avoiding a “Nine-Headed Hydra”: Intervention as a Matter of Right by Legislators in Federal Lawsuits After Berger

    Jan. 26, 2024 | Taylor Lawing

    Note | 77 Vand. L. Rev. 275

    Heightened political polarization across the United States has resulted in the increased use of Rule 24(a) intervention as a matter of right by elected legislators in federal litigation concerning state law. Because states differ in their approaches to intervention, with only some states expressly granting intervention in state matters, lower federal courts have been tasked with evaluating motions to intervene by reconciling Rule 24(a)’s requirements with state statutes, which poses challenging questions concerning Rule 24. This Note aims to provide lower courts with a reimagined standard for evaluating motions to intervene from state legislators that considers the administrative, political, and legislative consequences that occur without such a standard. Under this standard, lower courts first determine whether Rule 24(a) trumps state law before utilizing a shareholder test to evaluate whether the existing party adequately represents the interest of the potential legislator intervenor. This standard ultimately seeks to prevent the overburdening of the courts and to protect their independence.

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Volume 76, Issue 6

  • Introduction

    Nov. 27, 2023 | Edward K. Cheng

    Article | 76 Vand L. Rev. 1603

    Prior to the eighteenth century, cartographers would often fill uncharted areas of maps with sea monsters, other artwork, or even rank speculation—a phenomenon labeled “horror vacui,” or fear of empty spaces. For example, in Paolo Forlani’s world map of 1565, a yet- to-be-discovered southern continent was depicted with anticipated mountain chains and animals. The possible explanations for horror vacui are varied, but one reason may have been a desire “to hide [the mapmakers’] ignorance.” Not until “maps began to be thought of as more purely scientific instruments . . . [did] cartographers . . . restrain their concern about spaces lacking decoration in the interest of presenting their work as modern and professional.”

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  • Ignorance of the Rules of Omission: An Essay on Privilege Law

    Nov. 27, 2023 | Rebecca Wexler

    Article | 76 Vand. L. Rev. 1609

    Alton Logan spent twenty-six years in prison for a murder he did not commit, sleeping with a homemade metal shank under his pillow for protection. Meanwhile, attorney Dale Coventry kept the evidence that would ultimately exonerate Logan—another man’s confession—in a box beneath his bed. Coventry kept the confession secret for a quarter century because he believed that it was protected by attorney-client privilege and that his duty of confidentiality to his client mattered more than decades of Mr. Logan’s life.

    How could it happen that a legal rule ostensibly forged from humanistic concern for honor and ethics—passed along to us through the ages, from early Elizabethan cases that talked of gentlemen and morality, of avoiding treachery and betrayal—could cause such a tragedy?

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  • How Machines Reveal the Gaps in Evidence Law

    Nov. 27, 2023 | Andrea Roth

    Article | 76 Vand. L. Rev. 1631

    This Symposium asks participants to reimagine the Federal Rules of Evidence on the fiftieth anniversary of their effective date. As part of that conversation, this short Essay argues that the Rules of Evidence contain critical gaps in terms of empowering litigants to meaningfully challenge the credibility of evidence. Specifically, the increasing use of machine-generated proof has made clear that evidence law does not offer sufficiently meaningful opportunities to scrutinize conveyances of information whose flaws cannot be exposed through cross-examination. These underscrutinized conveyances include machine-generated output, information conveyed by animals, and statements made by absent hearsay declarants. Even for some witnesses who can be cross-examined—such as eyewitnesses offering identifications and experts using a testable method—evidence law too often fails to subject their claims to meaningful scrutiny because of its overreliance on cross-examination.

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  • On Proving Mabrus and Zorgs

    Nov. 27, 2023 | Michael S. Pardo

    Article | 76 Vand. L. Rev. 1653

    An unfortunate disconnect exists in modern evidence scholarship. On one hand, a rich literature has explored the process of legal proof in general and legal standards of proof in particular. Call this the “macro level” of legal proof. On the other hand, a rich literature has explored the admissibility rules that regulate the admission or exclusion of particular types of evidence (such as hearsay, character evidence, expert testimony, and so on). Call this the “micro level” of legal proof. Little attention, however, has focused on how the issues discussed in these two distinct strands of evidence scholarship intertwine. One important connection concerns the process and the standards for proving admissibility or exclusion when admissibility or exclusion depends on disputed facts.

    This Article illustrates how the theoretical debates regarding the proof process as a whole also apply to questions of admissibility. Federal Rule of Evidence 104 creates a two-part structure for the admissibility of evidence that largely mirrors proof issues that apply to a case as a whole—some issues are decided by a fact finder, and some issues are decided under a “reasonable jury” standard. A classic article by John Kaplan coined the terms “mabrus” and “zorgs” to refer to these different types of admissibility determinations. Extending Kaplan’s analysis, this Article argues that the best account of what grounds the proof process as a whole (the macro level)—that is, an explanatory account that focuses on the relationships between the evidence and the competing explanations of the parties—also applies to admissibility determinations (the micro level).

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  • “Pics or It Didn’t Happen” and “Show Me the Receipts”: A Folk Evidentiary Rule

    Nov. 27, 2023 | Timothy Lau

    Article | 76 Vand. L. Rev. 1681

    “Pics or It Didn’t Happen,” “Show Me the Receipts,” and related refrains are frequently encountered in online discussion threads today. They are typically invoked to demand corroboration in support of a claim or to declare from the outset that a claim is supported by some sort of proof. In many ways, they are the functional counterpart of legal evidentiary objections in online discussions. They embody a folk evidentiary rule, democratically and organically developed by the people.

    The topic of “Pics or It Didn’t Happen” is much broader than can be covered in a symposium piece. As such, this Article seeks to provide a brief exploration into the use of the rule, drawing out some of the underlying evidentiary principles and pointing to some of the pitfalls of proof by “pics.” It also explains the importance of studying “Pics or It Didn’t Happen” for scholars of law and of evidence law in particular.

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  • One Size Does Not Fit All: Alternatives to the Federal Rules of Evidence

    Nov. 27, 2023 | Henry Zhuhao Wang

    Article | 76 Vand. L. Rev. 1709

    The Federal Rules of Evidence have been so successful that many people equate them to the whole field of evidence law. But this is a false equivalence. Our world is complicated, diversified, and dynamic. So, too, is evidence law, which is like a rainforest in which the Federal Rules are simply the largest tree, not a forest unto themselves. In fact, the Federal Rules of Evidence are limited in their applicability due to three fundamental assumptions: the presence of a jury trial, an adversarial process, and witness oral testimony. The universe of dispute resolution, however, extends far beyond a contour that is covered by these three assumptions.

    This Article illustrates the dominance of the Federal Rules of Evidence since their launch, explains why the Rules do not fit in numerous dispute- resolution contexts outside common-law jury trials, and shifts attention to three featured alternative evidence systems (whether extant or in draft form) from other parts of the world. These evidence systems look structurally and logically different from the Federal Rules but fit well in their own contexts. Such comparative analysis brings out important evidence-rulemaking themes that are traditionally underexplored by U.S. evidence scholars and legislators.

    On the eve of the fiftieth anniversary of the Federal Rules of Evidence, the author stands at the crossroads of evidence-law development and projects that its next era will necessitate going back into the forest to explore different sets of evidence rules suitable in different dispute resolution settings. Such a shift will help release evidence law from the traditional trap of the common-law jury, significantly expand space for its continual growth, and further develop the law in a sophisticated, diversified way with built-in flexibility.

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  • Binding Hercules: A Proposal for Bench Trials

    Nov. 27, 2023 | Maggie Wittlin

    Article | 76 Vand. L. Rev. 1735

    If you were a federal judge presiding over a bench trial, you probably would not want the Federal Rules of Evidence to apply to you. Sure, you might want to be insulated from privileged information. But you are, no doubt, capable of cool-headed, rational reasoning, and you have a realistic understanding of how the world works; if you got evidence that was unreliable or easy to overvalue, you could handle it appropriately. But surely, you would have the same desire if you were a juror—it is not your position as a judge that makes you want all the relevant evidence. And in either event, you would, perhaps, be overestimating your own abilities.

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  • The Superfluous Rules of Evidence

    Nov. 27, 2023 | Jeffrey Bellin

    Article | 76 Vand. L. Rev. 1769

    There are few American legal codifications as successful as the Federal Rules of Evidence. But this success masks the project’s uncertain beginnings. The drafters of the Federal Rules worried that lawmakers would not adopt the new rules and that judges would not follow them. As a result, they included at least thirty rules of evidence that do not, in fact, alter the admissibility of evidence. Instead, these rules: (1) market the rules project, and (2) guide judges away from anticipated errors in applying the (other) nonsuperfluous rules.

    Given the superfluous rules’ covert mission, it should not be surprising that the rules’ drafters were not transparent about their nature. Instead, the drafters incorporated these rules so seamlessly into the overall project that their evidentiary insignificance goes largely unnoticed. This Essay pulls back the curtain to reveal the superfluous nature of many of the celebrated rules of evidence. The presence of so many superfluous rules says something interesting about the rules project and sheds light on how the evidence rules should be taught, interpreted, and applied.

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  • Evidence-Based Hearsay

    Nov. 27, 2023 | Justin Sevier

    Article | 76 Vand. L. Rev. 1799

    The hearsay rule initially appears straightforward and sensible. It forbids witnesses from repeating secondhand, untested gossip in court, and who among us prefers to resolve legal disputes through untested gossip? Nonetheless, the rule’s unpopularity in the legal profession is well-known and far-reaching. It is almost cliché to say that the rule confounds law students, confuses practicing attorneys, and vexes trial judges, who routinely make incorrect calls at trial with respect to hearsay admissibility.

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  • A New Baseline for Character Evidence

    Nov. 27, 2023 | Julia Simon-Kerr

    Article | 76 Vand. L. Rev. 1827

    Perhaps no rules of evidence are as contested as the rules governing character evidence. To ward off the danger of a fact finder’s mistaking evidence of character for evidence of action, the rules exclude much contextual information about the people at the center of the proceeding. This prohibition on character propensity evidence is a bedrock principle of American law. Yet despite its centrality, it is uncertain of both content and application. Contributing to this uncertainty is a definitional lacuna. Although a logical first question in thinking about character evidence is how to define it, the Federal Rules of Evidence have never offered an answer. The rules exclude character evidence offered to prove action in conformity with the character but do not specify what is meant by character.

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  • Race, Gatekeeping, Magical Words, and the Rules of Evidence

    Nov. 27, 2023 | Bennett Capers

    Article | 76 Vand. L. Rev. 1855

    Although it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence—what is deemed relevant, what is deemed trustworthy—to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.

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  • Models and Limits of Federal Rule of Evidence 609 Reform

    Nov. 27, 2023 | Anna Roberts

    Article | 76 Vand. L. Rev 1879

    A Symposium focusing on Reimagining the Rules of Evidence at 50 makes one turn to the federal rule that governs one’s designated topic—prior conviction impeachment—and think about how that rule could be altered. Part I of this Article does just that, drawing inspiration from state models to propose ways in which the multiple criticisms of the existing federal rule might be addressed.

    But recent scholarship by Alice Ristroph, focusing on ways in which criminal law scholars talk to their students about “the rules,” gives one pause. Ristroph identifies a pedagogical tendency to erase the many humans who turn rules into actions—and indeed life- changing or life-ending actions. With a narrow focus on the rules, as opposed to their enablers and enforcers, we not only miss potential reform opportunities but also potentially obscure behaviors that we may want to scrutinize. Thus, Part II develops proposals for how the behavior of relevant decisionmakers, such as prosecutors and judges, might usefully change—whether or not the language of the rule does.

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  • Shifting the Male Gaze of Evidence

    Nov. 27, 2023 | Teneille R. Brown

    Article | 76 Vand. L. Rev. 1903

    The Federal Rules of Evidence are a product of their time. They reflect not only the thinking of the 1970s when they were adopted but also the much older English common law on which many Rules were based. It should therefore come as no surprise that they sometimes embody folk views of decisionmaking that are outdated or simply wrong. There are dozens of ways we could reimagine what the Rules could be if they were based on a more accurate understanding of how jurors and judges actually behave under conditions of uncertainty, stress, social bias, and memory strain.

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Volume 76, Issue 5

  • Risk-Seeking Governance

    October 2023 | Brian J. Broughman & Matthew T. Wansley

    Article | 76 Vand. L. Rev. 1299

    Venture capitalists (“VCs”) are increasingly abandoning their traditional role as monitors of their portfolio companies. They are giving startup founders more equity and control and promising not to replace them with outside executives. At the same time, startups are taking unprecedented risks—defying regulators, scaling in unsustainable ways, and racking up billion-dollar losses. These trends raise doubts about the dominant model of VC behavior, which claims that VCs actively monitor startups to reduce the risk of moral hazard and adverse selection. We propose a new theory in which VCs use their role in corporate governance to persuade risk-averse founders to pursue high-risk strategies. VCs are motivated to take risks because most of the gains in venture funds come from the exponential growth of one or two outlier companies. By contrast, founders are reluctant to gamble because they bear firm-specific risk that cannot be diversified. To compensate founders for their risk exposure, VCs offer an implicit bargain in which the founders agree to pursue high-risk strategies and, in exchange, the VCs provide them private benefits. VCs can promise to give founders early liquidity when their startup grows, job security when it struggles, and a soft landing if it fails. In our model, VCs who develop a founder-friendly reputation have a competitive advantage in ex ante pricing but are more exposed to poor performance ex post due to suboptimal monitoring. Stakeholders who are not party to the VC-founder bargain—and society at large—are forced to bear uncompensated risk.

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  • Bringing “Civil”ity into Immigration Law: Using the Federal Rules of Civil Procedure to Fix Immigration Adjudication

    October 2023 | Richard Frankel 

    Article | 76 Vand. L. Rev. 1379

    Government lawyers frequently argue, and courts have frequently held, that noncitizens in removal proceedings do not have the same rights as defendants in criminal proceedings. A common argument made to support this position is that removal proceedings are civil matters. Accordingly, a noncitizen facing deportation has fewer due process protections than a criminal defendant, and deportation proceedings similarly provide fewer protections than criminal proceedings.

    In many ways, however, the rules governing immigration proceedings differ markedly from those governing civil actions in court. Immigration proceedings suffer from arcane and hypertechnical procedures that impede immigrants from having their claims reviewed on the merits. Notably, similar problems plagued the civil justice system back in the early twentieth century. The response was to create the Federal Rules of Civil Procedure, which emphasized a preference for deciding cases on their merits rather than on procedural technicalities. The modern Federal Rules have substantially simplified pleading requirements and emphasized flexibility in order to foster the goals of fairness, efficiency, and decisions on the merits.

    This Article argues that the process that spawned the Federal Rules can offer valuable lessons for reforming immigration proceedings. The Article identifies several examples where immigration rules differ from the Federal Rules in ways that inhibit decisions on the merits. It then proposes a fundamental reexamination of immigration rules with an eye toward promoting decisions based on substance rather than procedure, as well as a structure for ongoing reform. Given the high stakes in removal proceedings, if society continues to treat immigration proceedings as civil matters, the least it can do is incorporate those aspects of the Federal Rules that best promote access to justice for noncitizens.

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  • The Second Amendment’s “People” Problem

    Octover 2023 | Pratheepan Gulasekaram

    Article | 76 Vand. L. Rev. 1437

    The Second Amendment has a "people" problem. In 2008, District of Columbia v. Heller expanded the scope of the Second Amendment, grounding it in an individualized right of self-protection. At the same time, Heller's rhetoric limited "the people" of the Second Amendment to "law-abiding citizens." In 2022, New York State Rifle & Pistol Ass'n v. Bruen doubled down on the Amendment's self-defense rationales but, once again, framed the right as one possessed by "citizens." In between and after the two Supreme Court cases, several lower federal courts, including eight federal courts of appeals, wrestled with the question whether the right to keep and bear arms is a citizen-only right. Although those courts proffered varying perspectives on the meaning of "the people," they uniformly rejected challenges to the federal criminal ban on possession by unlawfully present persons and nonimmigrants.

    In addition to the federal criminal ban, the immigration code allows for deportation of all noncitizens, including permanent residents, for firearms- related violations. In combination, the Supreme Court's rhetoric, lower federal courts' decisions, and federal criminal and immigration statutes excise noncitizens from "the people" of the Second Amendment.

    This Article is the first to examine the relationship between "the people," immigration status, and the right to keep and bear arms in the wake of both Heller and Bruen. My analysis argues that courts undertheorize the systemic effects of constricting "the people" to citizens or, more recently, countenance historical inquiries that yield incoherent results. Intratextual comparison of "the people" of the Second Amendment with "the people" of the First and Fourth Amendments fares no better. That appraisal also commands broader inclusiveness for the Second Amendment's rightsholders than current jurisprudence permits. This Article concludes that a more coherent theory of Second Amendment rightsholders would necessarily include most noncitizens, at least when the right is grounded in self-defense from interpersonal violence. This conclusion casts doubt on current federal law that categorically criminalizes possession by certain groups of noncitizens, as well as deportation rules that banish all noncitizens for firearms violations. More capacious interpretations of the Second Amendment's "the people," in turn, help ensure noncitizens' inclusion under other core constitutional protections.

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  • Mixed-Up Origins: The Case for a Gestational Presumption in Embryo Mix-Ups

    October 2023 | Betsy Anne Sugar

    Note | Vand. L. Rev. 1521

    Embryo mix-ups-instances in which fertility clinics mistakenly implant one couple with another couple's embryo confound courts' determinations of who, between the two couples, are the legal parents. Lax regulation of the fertility industry permitted this relatively new injury to develop, and it has led to morally and legally fraught questions of parenthood and personal autonomy. This Note reviews parentage doctrines, beginning with a discussion of the martial presumption; it also tracks how courts have traditionally responded to parentage questions that fertility medicine has generated, including embryo division in divorce and parentage in surrogacy contracts. It then analyzes potential approaches to resolving parentage disputes in embryo mix-ups and outlines how each approach either comports with or contradicts other parentage doctrines. Finally, this Note proposes that in cases of embryo mix-ups, courts should adopt a presumption that the gestational parents are the legal parents. This solution both avoids legally endorsing nonconsensual surrogacy and incentivizes greater clinic accountability for these grave mistakes.

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  • The Anticommons Intersection of Heirs Property and Gentrification

    October 2023 | Emma Ruth White

    Note | 76 Vand. L. Rev. 1681

    Throughout history, internal and external pressures on Black landowners have resulted in the fragmentation of ownership through heirs property. This fragmentation is analogous to the erosion of community ties within minoritized neighborhoods susceptible to gentrification. Both contexts contribute directly to involuntary exit and land loss within the Black community. This Note analyzes the history of Black property ownership within the United States to illustrate the roots of heirs property and gentrification and evaluates traditional responses to these phenomena through the lens of the tragedy of the anticommons. In doing so, it highlights flaws in existing solutions to heirs property. It culminates with a proposed Uniform Act to mitigate and prevent gentrification-induced involuntary exit that incorporates elements of both the Uniform Partition of Heirs Property Act and responses to the tragedy of the anticommons.

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Previous Issues

May 2023

Volume 76, Issue 4

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April 2023

Volume 76, Issue 3

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March 2023

Volume 76, Issue 2

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January 2023

Volume 76, Issue 1

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November 2022

Volume 75, Issue 6

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October 2022

Volume 75, Issue 5

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