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"The Regulation of Inchoate Technologies" Free Download

Houston Law Review, Vol. 47, No. 3, Fall 2010
Vanderbilt Public Law Research Paper No. 10-44
DANIEL J. GERVAIS, Vanderbilt Law School

In the Essay, I explain why and how certain technologies defeat regulatory interventions. I then examine a number of major regulatory pitfalls and how they apply to the inchoate technologies, namely: the “law” of unintended consequences, the politicizing of regulatory interventions, costs, legacy regulation, asymmetric regulation and the role that the notion of efficiency is given in justifying regulatory impulses. I then consider whether the regulation of inchoate technologies should take account of, and may in fact be undesirable because, some technologies (or the use thereof) tend to self-regulate. Finally, I suggest lessons that can be drawn from this analysis and present the structure of a workable model to regulate inchoate technologies.
"Originalism and Summary Judgement" Free Download

Ohio State Law Journal, Vol. 71, No. 5, p. 919, 2010
Vanderbilt Law and Economics Research Paper No. 10-38
Vanderbilt Public Law Research Paper No. 10-47
BRIAN T. FITZPATRICK, Vanderbilt Law School

Over the last several years, the Supreme Court has revolutionized modern criminal procedure by invoking the Sixth Amendment right to a jury trial to strike down several sentencing innovations. This revolution has been led by members of the Supreme Court who follow an “originalist” method of constitutional interpretation. Recent work by the legal historian Suja Thomas has raised the question whether a similar “originalist” revolution may be on the horizon in civil cases governed by the Seventh Amendment’s right to a jury trial. In particular, Professor Thomas has argued that the summary judgment device is unconstitutional because it permits judges to resolve a set of cases - those where the sufficiency of a party’s evidence is in dispute - that could only be resolved by juries at the time the Seventh Amendment was ratified.

In this Article, I argue that Professor Thomas’s historical findings are an insufficient basis from which an originalist might conclude that summary judgment is unconstitutional. Professor Thomas's analysis more or less rests on a comparison of jury practices in 1791 with jury practices today. But outside a context where one is trying to establish that a practice that existed at the time of the founding is still constitutional today, originalism cannot rest on a mere comparison of founding-era practices to modern practices. Not everything that juries did in 1791 was understood to be unchangeable absent a constitutional amendment. In order to separate the things that juries did that were important to the Seventh Amendment from the things that they did that were not, one must assemble a frame of reference external to the jury practices themselves. This external frame of reference might be assembled from many places - a comparison of founding-era lexicons to the constitutional text, an examination of founding-era statements on the question, an assessment of the original purposes of the Seventh Amendment, etc. - but it has to be assembled from somewhere. Professor Thomas has not yet focused her energies here. As such, more work needs to be done before an originalist can conclude summary judgment is unconstitutional.
"Evolving U.S. Efforts to Support Domestic Accountability" Free Download

Vanderbilt Public Law Research Paper No. 10-46
American Society of International Law Discussion Paper
MIKE A. NEWTON, Vanderbilt Law School

During the review conference of the International Criminal Court in Kampala, Uganda, the large and well prepared United States delegation announced a new policy of "principled engagement" with the Court. The American Society of International Law commissioned eight expert papers on the direction that engagement should take, with particular focus on four topics: fostering state cooperation with the Court, developing complementarity between national and ICC jurisdiction, strengthening the impact of the Court on victims and witnesses, and shaping the Court’s jurisdiction over the crime of aggression. This essay was written as part of the ASIL report and proposes a series of specific recommendations designed to strengthen the principle of complementarity, which in practice may be the fulcrum supporting the long term legitimacy and effectiveness of the ICC as an apolitical arbiter of justice. The Rome Statute established a treaty-based framework for a permanent supranational prosecutorial authority built on the principle that state sovereignty can be subordinated on occasion to the goal of achieving accountability for egregious international crimes. Properly understood and implemented, the jurisdictional relationship between the ICC and sovereign states is conceived as a tiered allocation of authority to adjudicate. The creation of a vertical level of prosecutorial authority that operates as a permanent backdrop to the horizontal relations between sovereign states in large part depended on a delineated mechanism for prioritizing jurisdiction to serve the ends of authentic justice while simultaneously preserving sovereign rights. The balance of adjudicative authority between the ICC and states is therefore the bridge that carries the weight of the entire Court structure. In fact, the complementarity structure was an integral component of the overarching multilateral agreement without which the ICC would arguably not have been created. The unambiguous reaffirmation of the complementarity principle by the Assembly of States Parties at the 2010 Kampala Conference means that the U.S. policy preference for assisting states in strengthening domestic prosecutorial systems should move ahead reflecting a principled harmony of values rather than being misbranded as a manifestation of institutional hostility. In the wake of the Kampala Conference, U.S. policymakers and legislators have a clear window of opportunity to augment the efforts of the Assembly of States Parties by reinvigorating aid to domestic systems seeking to develop or enhance domestic capacity to address the enforcement gap that remains an unfortunate reality.
"Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts" Free Download

Federal Sentencing Reporter, Vol. 23, No. 3, February 2011
Vanderbilt Law and Economics Research Paper No. 11-01
Vanderbilt Public Law Research Paper No. 11-01
GRAY PROCTOR, Fourth Circuit Court of Appeals
NANCY J. KING, Vanderbilt Law School

This article addresses questions that may face courts as defendants seek relief under the Court’s decision in Padilla v. Kentucky, which held that counsel’s failure to adequately inform the defendant of the deportation consequences of conviction constituted deficient performance under the Sixth Amendment. Issues addressed include: express waivers of review in plea agreements; what constitutes deficient advice and prejudice sufficient for a finding of ineffective assistance; the retroactive application of Padilla to cases on post-conviction review; federal habeas review of state court decisions rejecting Padilla-type claims; procedural default, successive petition, and time bars to federal habeas review of Padilla claims; and other collateral relief. This draft includes citations to emerging case authority available as of December 7, 2010

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