Faculty SSRN Publications

Faculty Scholarship Blog

Prof. Fairfield on Do Not Track
Professor Joshua A. T. Fairfield, the Director of the Frances Lewis Law Center, recently published his article, “Do-Not-Track” as Contract, 14 Vand. J. Ent. & Tech. L. 545 (2012), in the Vanderbilt Journal of Entertainment & Technology Law. In the article, Professor Fairfield discusses a do-not-track option in web browsing. While there could be support and enforcement under the [...]

Prof. Jost on Medicaid

Prof. Drumbl on Child Soldiers

Prof. Lister on Guest Workers

Recent Publications

Joshua  A.T. Fairfield .

"Do-Not-Track" as Contract, 14 Vand. J. Ent. & Tech. L. 545 (2012).



Mark  A. Drumbl .

 Reimagining Child Soldiers in International Law and Policy (Oxford University Press, 2012).



Timothy  S. Jost .

Optimizing Qui Tam Litigation and Minimizing Fraud and Abuse: A Comment on Christopher Alexion's Open the Door, Not the Floogate, 69 Wash. & Lee L. Rev. 419 (2012).



John  D. King .

Procedural Justice, Collateral Consequences, and the Adjudication of Misdemeanors, in The Prosecutor in Transnational Perspective (Oxford University Press, Erik Luna & Marianne Wade, eds.) 2012



Honor as Property
Tue, 15 May 2012 | Johanna E. Bond
This Article is the first to use a property lens to explore the social construction of honor within legal systems around the world. The Article makes the claim that the law in many countries has implicitly treated honor as a form of property and has made legal and social allowances for men who seek to reclaim honor property through violence. The Article expands the boundaries of the existing scholarship concerning honor-related violence by exploring the intersections between social constructions… Read more...

Managing Expectations: Beyond Formal Adjudication
Wed, 02 May 2012 | Susan D. Franck
The international investment system has depended heavily on international arbitration to provide guidance and clarification on the standards contained in international investment agreements. In order to assess the system realistically, this commentary discusses unpacking stakeholder expectations by recognizing where expectations may have been overly optimistic and thinking systematically about the mechanisms through which to capture and manage regulatory discretion. This article evaluates ideas… Read more...

Pleading in State Courts after Twombly and Iqbal
Thu, 12 Apr 2012 | A. Benjamin Spencer
In parts I and II of his paper, Professor Spencer introduces the concept of “notice pleading” and contrasts it with the fact-pleading regime that existed before the adoption of the Federal Rules of Civil Procedure. The 1938 rules included the well-known provision that a pleader need provide only “a short and plain statement of the claim showing that the pleader is entitled to relief.” In a line of decisions extending to 2002, the United States Supreme Court underscored the liberality of the fede… Read more...

Beyond 'Life and Liberty': The Evolving Right to Counsel
Thu, 12 Apr 2012 | John D. King
The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for… Read more...

The Death of Jesse Gelsinger: New Evidence of the Influence of Money and Prestige in Human Research
Tue, 10 Apr 2012 | Robin Fretwell Wilson
Ten years ago, Jesse Gelsinger died while participating in a human gene therapy trial at the University of Pennsylvania (“Penn”). His death came to signify the corrosive influence of financial interests in human subjects research. After Jesse's death, the media reported that one researcher. Dr. James Wilson, held shares in a biotech company, Genovo, which stood to gain from the research's outcome — shares that The Wall Street Journal later valued at $13.5 million, although Wilson maintains he… Read more...

Insubstantial Burdens: The Case for Government Employee Exemptions to Same-Sex Marriage Laws
Tue, 10 Apr 2012 | Robin Fretwell Wilson
The case for accommodating religious objectors to same-sex marriage has met significant resistance on a number of fronts. Some believe that religious exemptions permit objectors to dodge legal duties to serve same-sex couples that would otherwise apply. Critics charge that, if extended to public employees, such exemptions would burden the ability of same-sex couples to marry. Others argue that exemptions coddle wrong-headed people who really do not have a legitimate reason for objecting and wh… Read more...

The Legal Research Plan: A Comprehensive Examination of the Current Approach
Tue, 03 Apr 2012 | Caroline Osborne
This paper reviews the current status of the concept of the legal research plan. It summarizes the basic elements of the legal research plan, reviews the current literature and recommends a design of a plan for use in first year legal research program sand by novice researchers.… Read more...

Sex Play in Virtual Worlds
Fri, 16 Mar 2012 | Robin Fretwell Wilson
When children play in proximity to adults, many of us naturally worry about less-than desirable results. This fear now animates discussions of children playing in virtual worlds. The FBI’s "Parent’s Guide to Internet Safety," for example, focuses on preventing sexual predators from approaching children online and explains how parents can recognize when their children have been contacted by a sexual predator. International authorities also have focused on sexual predators. These fears have pr… Read more...

The Law School Critique in Historical Perspective
Wed, 07 Mar 2012 | A. Benjamin Spencer
Contemporary critiques of legal education abound. This arises from what can be described as a perfect storm: the confluence of softness in the legal employment market, the skyrocketing costs of law school, and the unwillingness of clients and law firms to continue subsidizing the further training of lawyers who failed to learn how to practice in law school. As legal jobs become more scarce and salaries stagnate, the value proposition of law school rightly is being questioned from all direction… Read more...

Enlarging the Regulation of Shrinking Cosmetics and Sunscreens
Wed, 07 Mar 2012 | Robin Fretwell Wilson
While one is hard-pressed to name an industry that has not jumped on the nanotechnology bandwagon, the makers of cosmetics and sunscreens have capitalized on nanotechnology more aggressively than any other. The appeal of using nano-sized particles in sunscreens and cosmetics rather than their conventional counterparts comes from their small size — they can provide UV protection while remaining transparent, avoiding the pasty white appearance of conventional sunscreens. With cosmetics, nano-sized… Read more...

The Perils of Privatized Marriage
Tue, 06 Mar 2012 | Robin Fretwell Wilson
Governments around the world continue to struggle with how to accommodate religious minorities in an increasingly pluralistic society, and how to accommodate religion in matters of family law. Efforts to respect religious understandings in family disputes seem at first blush innocuous: they would allow religious groups to define their own norms and celebrate the rich diversity of society. However, the experience of women and children of multiple faiths across the world demonstrates that religi… Read more...

American Law Institute’s Principles of the Law of Family Dissolution, Eight Years after Adoption: Gu
Sat, 03 Mar 2012 | Robin Fretwell Wilson
Michael Clisham and Robin Fretwell Wilson, “American Law Institute’s Principles of the Law of Family Dissolution, Eight Years After Adoption: Guiding Principles or Obligatory Footnote?” 50th Anniversary Issue, 42 Family Law Quarterly 573 (Fall 2008) The American Law Institute's Principles of the Law of Family Dissolution: Analysis and Recommendations (Principles) arguably represent the most sweeping attempt at family law reform in the last quarter century. The Principles consider many of the… Read more...

Estate of Gelsinger v. Trustees of University of Pennsylvania: Money, Prestige, and Conflicts of Int
Sat, 03 Mar 2012 | Robin Fretwell Wilson
Robin Fretwell Wilson, “Estate of Gelsinger v. Trustees of University of Pennsylvania: Money, Prestige, and Conflicts of Interest In Human Subjects Research,” in Health Law and Bioethics: Cases In Context (Sandra H. Johnson, Joan H. Krause, Richard S. Saver, & Robin Fretwell Wilson, eds., 2009). This chapter re-examines the death of Jesse Gelsinger on September 17, 1999, the first person reported to die in a human gene-therapy trial. Unlike many of the cases in the book in which it appears, H… Read more...

Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context
Sat, 25 Feb 2012 | Robin Fretwell Wilson
It is difficult to ignore the parallels emerging between same-sex marriage and the recently renewed debates about the limits of conscience in healthcare, sparked by refusals to dispense emergency contraceptives. Both subjects are deeply divisive and in both persons of good will are saying “why should I have to give up my convictions so that you can have yours?” This Chapter explores the dilemmas facing churches, clergy, state officials, and private individuals who, as a matter of conscience or… Read more...

Debarring Faithless Corporate and Religious Fiduciaries in Bankruptcy
Mon, 20 Feb 2012 | Lyman P. Q. Johnson
Fiduciary duties for the top governance officials of both business and religious organizations demand faithfulness to the institution’s mission, a seemingly strict demand. Meaningful sanctions for breach, however, are difficult to obtain and may not deter future misconduct, including that kind of conduct leading to organizational bankruptcy. This article advocates that, to attain both special and general deterrence, bankruptcy law should look to other regulatory regimes and permit a bankruptcy… Read more...

Nexus Crystals: Crystallizing Limits on Contractual Control of Virtual Worlds
Fri, 17 Feb 2012 | Joshua A.T. Fairfield
Can a video game developer or publisher successfully sue a video game player for copyright infringement for not “playing a game nicely,” “cheating,” or “buying software from a third party”? This article suggests a new reason why it cannot. The founding social contract of the new millennium is the End User License Agreement (EULA), not the U.S. Constitution. Website terms of use (TOU) and software EULAs now have an enormous impact on how citizens must act and how their rights and redresses are d… Read more...

The Shared Transatlantic Jurisprudence of Dignity
Sat, 04 Feb 2012 | Russell A. Miller
Critiques of Robert Kagan's recent, inflammatory work on the nature and state of transatlanticisim seem to come in three forms: material, analytical and emotional. By "material" I mean critiques of the fundamental and more or less obvious facts and structures out of which he has spun his claims. These facts amount to little more than the less than revelatory reminder that the U.S. devotes considerably more resources to security and defense spending than do Europeans. Critiques of Kagan's work at… Read more...

Legitimacy, Blind Spots and Paradoxes of Personality
Fri, 03 Feb 2012 | Russell A. Miller
Verdi’s Romantic tragedy La Traviata tells the story of the doomed affair between Violetta Valery and Alfredo Germont. It is clear from the start that their romance is ill-fated; could anything but calamity await ‘a courtesan, dying of tuberculosis’ and a ‘young poet’? And, indeed, it all goes terribly wrong. Violetta forswears the lavish but indifferent conditions in which she is kept by the Baron Duophol, risking her secure position as the Baron’s mistress on Alfredo’s earnest expressions o… Read more...

Comparative Law as Transnational Law: A Decade of the German Law Journal
Thu, 02 Feb 2012 | Russell A. Miller
In July, 2009, the German Law Journal marked its first decade with a conference hosted by the Bundesministerium der Justiz (Federal Ministry of Justice) in Berlin. The resulting discussion of the conference underscored two points: there was easy consensus that we are living in a transnational era, and that there was little agreement on how to define, or, indeed, imagine transnational law and the transnationalization of legal cultures. The majority of the participants at the conference, the s… Read more...

The Law Was Never Our Own: The Robert Bosch Foundation Fellowship, the German Law Journal, and the M
Thu, 02 Feb 2012 | Russell A. Miller
For twenty years the Robert Bosch Foundation’s Fellowship has been contributing to the comparativist movement in the most poignant of ways: it has invited scores of American lawyers to work alongside their German colleagues, giving both invaluable opportunity to think about and learn from one another. These American lawyers have been given the most privileged, first-hand views on the practice of law, the legislative process, and the function of the judiciary in Germany. The Robert Bosch Found… Read more...

Much Ado, But Nothing: California's New World War II Slave Labor Law Statute of Limitations and Its
Thu, 02 Feb 2012 | Russell A. Miller
More that fifty years after the dreaded events took place in Europe and along the Pacific-Rim, the California legislature has created a new cause of action that allows residents of California to seek redress in California courts for the atrocities of Nazi Germany and the Axis powers, especially for the use of forced labor by their industries during the war. The new cause of action is supported by an extraordinary, retroactive statute of limitations that reaches across all those years and keeps… Read more...