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Theory of the Nudnik: The Future of Consumer Activism and What We Can Do to Stop It

May. 26, 2020—Yonathan A. Arbel & Roy Shapira | 73 Vand. L. Rev. 929 (2020) | How do consumers hold sellers accountable and enforce market norms? This Article contributes to our understanding of consumer markets in three ways. First, the Article identifies the role of a small subset of consumers—the titular “nudniks”—as engines of market discipline. Nudniks...

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Federalism and the Military Power of the United States

May. 26, 2020—Robert Leider | 73 Vand. L. Rev. 989 (2020) | This Article examines the original meaning of the constitutional provisions governing the raising and organization of military forces. It argues that the Framers carefully divided the military between the federal and state governments. This division provided structural checks against the misuse of military power and...

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Zombie Energy Laws

May. 26, 2020—Joshua C. Macey | 73 Vand. L. Rev. 1077 (2020) | This Article traces the development of three legal rules—cost recovery for vertically integrated utilities, the requirement that regulators assess the financial viability of energy projects before issuing a certificate of public convenience and necessity, and the filed rate doctrine—that emerged out of the view...

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Spring 2020 Alumni Newsletter

Apr. 21, 2020—Vanderbilt Law Review Alumni Newsletter Spring 2020

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Statistical Precedent: Allocating Judicial Attention

Apr. 20, 2020—Ryan W. Copus | 73 Vand. L. Rev. 605 | Suffering from a well-covered “crisis of volume,” the U.S. Courts of Appeals have patched together an ad hoc system of triage in an effort to provide cases with sufficient attention. For example, only some cases are assigned to central staff, analyzed by law clerks, orally...

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Reconstructing the Congressional Guarantee of Republican Government

Apr. 20, 2020—David S. Louk | 73 Vand. L. Rev. 673 | The Republican Guarantee Clause of Article IV, Section 4 promises that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” Although this clause might seem to confer significant power to oversee the political structures of the states, ambiguity...

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Litigating Citizenship

Apr. 20, 2020—Cassandra Burke Robertson & Irina D. Manta | 73 Vand. L. Rev. 757 | By what standard of proof—and by what procedures—can the U.S. government challenge citizenship status? That question has taken on greater urgency in recent years. News reports discuss cases of individuals whose passports were suddenly denied, even after the government had previously...

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The Misuse of Tobin’s q

Mar. 25, 2020—Robert Bartlett & Frank Partnoy | 73 Vand. L. Rev. 353 (2020) | In recent years, scholars have addressed the most important topics in corporate law based on a flawed assumption: that the ratio of the market value of a corporation’s securities to their book value is a valid measure of the value of the...

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Broken Records: Reconceptualizing Rational Basis Review to Address “Alternative Facts” in the Legislative Process

Mar. 25, 2020—Joseph Landau | 73 Vand. L. Rev. 425 (2020) | In 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the...

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Patenting New Uses for Old Inventions

Mar. 25, 2020—Sean B. Seymore | 73 Vand. L. Rev. 478 (2020) | A bedrock principle of patent law is that old inventions cannot be patented. And a new use for an old invention does not render the old invention patentable. This is because patent law requires novelty—an invention must be new. But while a new use...

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Privative Copyright

Jan. 21, 2020—Shyamkrishna Balganesh | 73 Vand. L. Rev. 1 (2020) | “Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as...

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Popular Constitutional Argument

Jan. 21, 2020—Tom Donnelly | 73 Vand. L. Rev. 73 (2020)| Critics have long attacked popular constitutionalists for offering few clues about how their theory might work in practice—especially inside the courts. These critics are right. Popular constitutionalism—as a matter of both theory and practice—remains a work in progress. In this Article, I take up the challenge...

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Misaligned Lawmaking

Jan. 21, 2020—Timothy Meyer | 73 Vand. L. Rev. 151 (2020) | Since 1962, when Congress passed the Trade Expansion Act, every new U.S. trade deal has had the same essential bargain at its core. Congress agrees to give the president the power to lower trade barriers, while at the same time providing adjustment assistance for those...

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Introduction: Professor Randall Thomas’s Depolarizing and Neutral Approach to Shareholder Rights

Nov. 25, 2019—James D. Cox & Frank Partnoy | 72 Vand. L. Rev. 1755 (2019) | Like Gaul, corporate law scholarship can be divided into three overflowing buckets: pro-manager, pro-shareholder, and empirical. We classify empirical scholarship as a separate category, in significant part because of Professor Randall Thomas. In the pre-Thomas era, much of the literature fell...

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Mootness Fees

Nov. 25, 2019—Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, & Randall S. Thomas | 72 Vand. L. Rev. 1777 (2019) | In response to a sharp increase in litigation challenging mergers, the Delaware Chancery Court issued the 2016 Trulia decision, which substantively reduced the attractiveness of Delaware as a forum for these suits. In this...

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Automating Securities Class Action Settlements

Nov. 25, 2019—Jessica Erickson | 72 Vand. L. Rev. 1817 (2019) | Securities class actions are supposed to vindicate the rights of investors injured by corporate fraud. Yet, despite multimillion- or even multibillion-dollar settlements, many injured investors never receive a dime in compensation. To receive money from a settlement in a securities class action, investors must comply...

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