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Professor Muneer Ahmad's Comments - Panel 2, Muneer Ahmad

Tennessee Law Review

No abstract provided.

Workplace Harasser Liability: Assailing Moral Hazards And Rehabilitating The Individualist Approach, Ryan H. Nelson

Tennessee Law Review

The focus of recent workplace harassment scholarship has been on irreproachable workplaces. Without detracting from that literature, this Article seeks to rehabilitate the individualist approach as a worthy supplement to institutional liability. It explicates, contextualizes, and outlines solutions to the moral hazards that would shelter workplace harassers from the risks of individual harasser liability if such liability ever comes to pass, thereby reclaiming the deterrent potential of the individualist approach. This Article begins by exploring how, without additional law reform, individual harasser liability would fail to optimally deter workplace harassment in two regards. First, it presents and analyzes original empirical …

Dna Exonerations And Stakeholder Responses: A Case Of Cognitive Dissonance, Anne Richardson Oakes, Julian Killingley

Tennessee Law Review

The availability of DNA testing developed in the 1980s transformed the ability of prosecutors to secure convictions while providing Innocence Projects with the tools to overturn them. However, DNA exonerations which establish conclusively that a person convicted of a crime is in fact innocent, can represent a major threat to the value systems and therefore the self-belief of stakeholders who acted in good faith and in the genuine but mistaken belief that the exoneree was guilty. This Article reports on the findings of an investigation into stakeholder responses to DNA exonerations between 1990-1999 when DNA evidence was new and more …

A Reexamination Of The Parens Patriae Power, Esther K. Hong

Tennessee Law Review

Juvenile law scholars are coalescing around the idea that the originating theory of the juvenile system-the theory of the state's parens patriae power-is a largely obsolete relic of the past. This theory holds that when children commit offenses or crimes, the state as a super-parent should respond in a manner that cares, treats, and advances the best interest of the youth. Rather than live up to its ideals, however, these benevolent aims often masked abuse and limited minors' constitutional rights. The new consensus in current juvenile law scholarship is that juvenile law policy and advocacy ought to rely on a …

Contents

Tennessee Law Review

No abstract provided.

The New Due Process: Fairness In A Fee-Driven State, Glenn H. Reynolds, Penny J. White

Tennessee Law Review

No abstract provided.

Annual Index Volume 88

Tennessee Law Review

No abstract provided.

The Modest Impact Of The Modern Confrontation Clause, Jeffrey Bellin, Diana Bibb

Tennessee Law Review

The Sixth Amendment's Confrontation Clause grants criminal defendants the right "to be confronted with the witnesses against" them. A strict reading of this text would transform the criminal justice landscape by prohibiting the prosecution's use of hearsay at trial. But until recently, the Supreme Court's interpretation of the Clause was closer to the opposite. By tying the confrontation right to traditional hearsay exceptions, the Court's longstanding precedents granted prosecutors broad freedom to use out-of-court statements to convict criminal defendants.

The Supreme Court's 2004 decision in Crawford v. Washington was supposed to change all that. By severing the link between the …

Redesigning Restorative Justice For Criminal Justice Reform, Matthew D. Kim

Tennessee Law Review

Considering the racial disparities in the criminal justice system and the pressing need for reform, this article presents the optimal design for restorative justice that is capable of drawing the necessary public support to transform the criminal justice system. Restorative justice is a growing alternative to the criminal justice system designed to allow offenders, victims, and members of the community resolve crimes without resorting to the criminal justice system. Public support for restorative justice programs is vital to their success, and many programs fail because of inconsistent public support. As such, proponents of restorative justice emphasize the need to "start …

Practical Abolition: Universal Representation As An Alternative To Immigration Detention, Matthew Boaz

Tennessee Law Review

No abstract provided.

Reconciling Legal And Technical Approaches To Algorithmic Bias, Alice Xiang

Tennessee Law Review

In recent years, there has been a proliferation of papers in the algorithmic fairness literature proposing various technical definitions of algorithmic bias and methods to mitigate bias. Whether these algorithmic bias mitigation methods would be permissible from a legal perspective is a complex but increasingly pressing question at a time when there are growing concerns about the potential for algorithmic decision-making to exacerbate societal inequities. In particular, there is a tension around the use of protected class variables: most algorithmic bias mitigation techniques utilize these variables or proxies, but anti-discrimination doctrine has a strong preference for decisions that are blind …

A Little Child Shall Lead Them: Juvenile Justice, Aging Out, And The First Step Act, Jalila Jefferson-Bullock

Tennessee Law Review

"When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things."

Righteous Indignation: Prosecutorial Misconduct, Brady, And The Cognitive Limits Of Self-Policing, Jonathan Harwell, Marshall Jensen, Sarah Heath Olesiuk, Sally B. Seraphin

Tennessee Law Review

No abstract provided.

Illegal Exactions, Renee Burbank

Tennessee Law Review

Illegal exactions, or unlawful exactions, are an amorphous category of government activities with two unifying characteristics: (1) the government acts in its sovereign capacity but beyond its authority, and (2) its action enriches the government at a person's or organization's expense. The law of illegal exactions has developed through infrequent clusters of cases over 150 years, without substantial academic evaluation or discourse. The case law, thus, often lacks theoretical coherence. Lacking a single defining framework to use, courts have borrowed from torts, Fifth Amendment takings, and due process claims to define the scope of illegal exactions. Although it is an …

And Then There Were Yellow Roses, Penny J. White

Tennessee Law Review

No abstract provided.

Should We Flip On Flippers: A Rational Approach To Providing Penalty Reductions To Criminal Informers, Mirko Bagaric, Lidia Xynas, Daniel Mccord

Tennessee Law Review

No abstract provided.

A Rule 11 For Prosecutors, Yuri R. Linetsky

Tennessee Law Review

This Article suggests a novel approach to allow victims of frivolous prosecutions to hold prosecutors accountable. Unique among American lawyers, prosecutors enjoy absolute immunity from civil suits alleging professional misconduct. In cases of frivolous prosecutions, where charges are dismissed by the judge or the defendants are acquitted, the former defendants are prevented from seeking damages. This is so despite former defendants often suffering significant consequences-from legal fees to loss of employment. Victims of frivolous prosecutions should be afforded a mechanism to seek redress against prosecutors who bring or maintain meritless actions.

By enacting a rule of criminal procedure that mirrors …

Restoring Fairness To Campus Sex Tribunals, Cynthia V. Ward

Tennessee Law Review

No abstract provided.

Faithful Execution: The Persistent Myth Of Widespread Prosecutorial Misconduct, Timothy C. Harker

Tennessee Law Review

Professors, politicians, activists, journalists, and bloggers alike stand ready to denounce prosecutorial misconduct-the more egregious the misconduct, the more vociferous the denunciation, and rightly so. Ordinarily, such public denunciation would have a salubrious effect. Unfortunately, this remedial process has been hijacked by those who insist that prosecutorial misconduct is widespread and has infected all facets of the criminal justice system, to the detriment of defendants and the consternation of the public. Their vitriol precludes a dispassionate evaluation of the criminal justice system generally and prosecutorial misconduct specifically. This article demonstrates that, contrary to expectations, prosecutorial misconduct occurs with reassuring infrequency. …

Substantive And Procedural Silence, Erin Sheley

Tennessee Law Review

Empirical work shows that perceptions of the procedural fairness of the criminal justice system turns on whether it gives individuals and communities a "voice," or a forum in which to tell their stories. If the system imposes unwanted silence on a party its legitimacy in the eyes of the public decreases. Despite the extensive literature on the many specific applications of silence in the justice system, no attempt has yet been made to break down the relationship between the victim's silence and the defendant's across the disparate doctrines of criminal law, or the importance of these interconnections to the expressive …

Firepower To The People! Gun Rights & The Law Of Self-Defense To Curb Police Misconduct, Spear It

Tennessee Law Review

No abstract provided.

On Competence: (Re)Considering Appropriate Legal Standards For Examining Sixth Amendment Claims Related To Criminal Defendants' Mental Illness And Disability, Sarah Gerwig-Moore

Tennessee Law Review

No abstract provided.

A Principled And Legal Approach To Title Ix Reporting, Merle H. Weiner

Tennessee Law Review

Institutions of higher education identify "responsible employees" to further their compliance with Title IX. Responsible employees typically report instances of campus gender-based violence to the institution, usually to the Title IX coordinator. Unfortunately, most colleges and universities make virtually every employee a responsible employee. This "wide-net" approach to reporting, sometimes referred to as universal mandatory reporting, produces two categories of related unintended consequences: (1) it weakens the autonomy of victims when they need their autonomy most, thereby undermining their sense of institutional support and aggravating their psychological and physical harm from the assault; and (2) because of these negative consequences, …

The Miranda Custody Requirement And Juveniles, Paul Marcus

Tennessee Law Review

No abstract provided.

Deviant To Dignified: From Campbell V Sundquist To Tanco V. Haslam The Progression Of Lgbt Rights & Marital Equality In Tennessee, Regina M. Lambert, Abby R. Rubenfeld

Tennessee Law Review

No abstract provided.

Constitutional Law-Fourth Amendment-Police Dog Sniffs And "Completing The Mission", J. Scott White

Tennessee Law Review

No abstract provided.

Distinctions With A Difference: Why Proper Rule 59(E) Motions Should Not Be Subject To "Second Or Successive" Habeas Analysis, Imad S. Matini

Tennessee Law Review

Motions to reconsider-filed under either Rule 59(e) or 60(b) of the Federal Rules of Civil Procedure--are often considered one in the same, whether due to imprudent labeling by a litigant or due to the belief that little distinction exists between the two. In the context of habeas corpus petitions filed by pro se prisoners, motions under Rule 59(e) and Rule 60(b) are often interchangeably filed. Within this context, however, the following issue persists: whether a motion filed under either rule is subject to the "second or successive" restriction under the Antiterrorism and Effective Death Penalty Act (AEDPA). The Supreme Court …

Youthful Offenders And The Eighth Amendment Right To Rehabilitation: Limitations On The Punishment Of Juveniles, Martin Gardner

Tennessee Law Review

No abstract provided.

The New Diversity Crisis In The Federal Judiciary, Jason Iuliano, Avery Stewart

Tennessee Law Review

For much of its history, the federal judiciary was characterized by a complete lack of surface-level (i.e., demographic) diversity. Over the past fifty years, efforts to promote surface-level diversity have yielded significant gains and the modern judiciary now looks more like the citizenry it serves than it has at any other point in history. Although this particular diversity crisis has abated, a new one has taken shape.

Today, deep-level diversity is at an all-time low. This type of diversity denotes those attributes that are non-demographic in nature. It includes characteristics such as work experience, values, attitudes, and educational background. Given …

Sentencing Rules And Standards: How We Decide Criminal Punishment, Jacob Schuman

Tennessee Law Review

Over the past 300 years, American sentencing policy has alternated between "determinate" and "indeterminate" systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? Why should we punish wrongdoers at all?

In this Article, I ask a new, fourth question: How should we decide punishment? First, I demonstrate that determinate sentencing uses rules to decide sentences, while indeterminate sentencing relies on standards. Next, I show how the trigger-based nature of rules-in contrast to the qualitative character of standards-makes them vulnerable to four different kinds of substantive …