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Full-Text Articles in Law
Taxing Creativity, Xuan-Thao Nguyen, Jeffrey A. Maine
Taxing Creativity, Xuan-Thao Nguyen, Jeffrey A. Maine
Tennessee Law Review
The recent sell offs of song catalogs by Bob Dylan, Stevie Nicks, Neil Young, and Mick Fleetwood for extraordinarily large sums of money raise questions about the law on creativity. While patent and copyright laws encourage a wide array of creative endeavors, tax laws
governing monetization of creative works do not. The Songwriters Capital Gains Equity Act, in particular, solidifies creativity exceptionalism, exacerbates tax inequities among creators, and perpetuates racial disparities in the tax Code. This Article asserts that the law must encourage creativity from all creators. It is time to eliminate tax exceptionalism for musical compositions or expand its …
Opioid Accountability, Daniel G. Aaron
Opioid Accountability, Daniel G. Aaron
Tennessee Law Review
The opioid crisis has steadily killed Americans for twenty years. In total, we have lost more than 500,000 American lives since the 1990s, and countless more suffer from chronic addiction.
After years of piecemeal efforts to address this massive loss of life and health, the opioid litigation, largely centralized in Ohio federal district court, has brought significant hope for change. But there is a notable divide between the popular sense of the litigation and its reality. A full 57% of Americans believe that opioid companies should be held accountable for precipitating a public health crisis. However, the litigation, has been …
Antitrust's Ai Revolution, Daryl Lim
Antitrust's Ai Revolution, Daryl Lim
Tennessee Law Review
Antitrust law operates like an algorithm. Its lodestar, the rule of reason, is a black box. Unlike most other areas of the law, judges, not Congress, write the rules and sometimes in surprisingly capricious ways. These rules govern everything from Google and Facebook's "killer acquisitions" to vaccine development agreements during a pandemic. Injecting artificial intelligence (AI) into antitrust analysis seems prosaic, but in fact, it is revolutionary.
Courts routinely lean on ideology as a heuristic when they must interpret the rule of reason in light of economic theory and evidence. Chicago School conservatism reined in some excesses of earlier populist …
Bostock: An Inevitable Guarantee Of Heightened Scrutiny For Sexual Orientation And Transgender Classifications, Kaleb Byars
Bostock: An Inevitable Guarantee Of Heightened Scrutiny For Sexual Orientation And Transgender Classifications, Kaleb Byars
Tennessee Law Review
In June 2020, the Supreme Court decided Bostock v. Clayton County. In Bostock, the Court held that discrimination on the basis of sexual orientation and transgender status per se constitutes discrimination "because of sex" for purposes of Title VIL But Bostock inspires the question of whether its holding and reasoning apply in other contexts, including the Equal Protection Clause context. While the Supreme Court has held intermediate scrutiny applies to sex classifications analyzed under the Equal Protection Clause, the Court has yet to elucidate the level of scrutiny that applies to LGBTQ classifications. Meanwhile, state and federal courts have developed …
The Not-So-Odd Couple: Specific Personal Jurisdiction And Party Joinder, Haley Palfreyman Jankowski
The Not-So-Odd Couple: Specific Personal Jurisdiction And Party Joinder, Haley Palfreyman Jankowski
Tennessee Law Review
Traditionally, scholars and courts alike have thought of joinder of parties and personal jurisdiction as separate questions. Party joinder determined who should be in the lawsuit, whereas personal jurisdiction determined what power courts could exercise over those parties-a question that invariably becomes more complicated when more parties are added to the lawsuit. The Supreme Court's 2017 decision in Bristol-Myers Squibb Co. v. Superior Court forced a reckoning between these two areas of civil procedure. In Bristol-Myers Squibb, the Court irreversibly connected specific personal jurisdiction and party joinder by holding that non-Californian plaintiffs could not be part of a California lawsuit …
The Rulification Of General Personal Jurisdiction And The Search For The Exceptional Case, Judy M. Cornett
The Rulification Of General Personal Jurisdiction And The Search For The Exceptional Case, Judy M. Cornett
Tennessee Law Review
No abstract provided.
Does Motive Also Follow The Bullet? Transferred Intent And Violent Crimes In Aid Of Racketeering, Melvin L. Otey
Does Motive Also Follow The Bullet? Transferred Intent And Violent Crimes In Aid Of Racketeering, Melvin L. Otey
Tennessee Law Review
No abstract provided.
Choice Of Law And Time, Jeffrey L. Rensberger
Choice Of Law And Time, Jeffrey L. Rensberger
Tennessee Law Review
Choice of law is usually thought of as a problem of law across geography, of how laws apply to persons and events not entirely within a state's boundaries. But time is another dimension to the choice of law problem. In cases wholly domestic to a single state, this temporal issue appears when a court considers whether a change in law has retroactive application. But changes in law occur in interstate cases as well. Moreover, the facts relevant to a choice of law analysis may change between the time of the underlying events and the litigation. Does the court consider facts …
Workplace Harasser Liability: Assailing Moral Hazards And Rehabilitating The Individualist Approach, Ryan H. Nelson
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 …
The Multi-Level Marketing Pandemic, Christopher Bradley, Hannah E. Oates
The Multi-Level Marketing Pandemic, Christopher Bradley, Hannah E. Oates
Tennessee Law Review
Among the societal effects of the COVID-19 pandemic has been a sharp rise in the activities of multi-level marketing companies (MLMs). MLMs are business enterprises in which participants seek not only to sell products to friends, family, and social media contacts, but also to recruit them as MLM participants, with the promise of "building their own business from home."
False promises often pervade MLM sales pitches. Evidence shows that few participants see even a dollar of profit from their MLM work; the vast majority of recruits quickly abandon their MLM dreams and lose their investments. Yet the pitch has become …
Trauma As Inclusion, Raquel Aldana, Patrick M. Koga, Thomas O'Donnell, Alea Skwara, Caroline Perris
Trauma As Inclusion, Raquel Aldana, Patrick M. Koga, Thomas O'Donnell, Alea Skwara, Caroline Perris
Tennessee Law Review
This article brings together a historian and law, public health, psychiatry, psychology, and neuroscience faculty and researchers to document how trauma is understood across disciplines and how it has developed in U.S. immigration law largely to exclude but increasingly to include migrants whose lives have been uprooted or otherwise impacted by borders. Our aim is to document and assess the progress and the gaps in immigration law's embrace and understanding of trauma through metrics that include the science of trauma, compassion, and fairness. This analysis is made urgent by the travesty we are witnessing of borders completely shut to desperate …
How Do You Solve A Problem Like Sb8? Flagrantly Unconstitutional Laws, Procedural Scheming, And The Need For Pre-Enforcement Offensive Litigation, Kimberley Harris
How Do You Solve A Problem Like Sb8? Flagrantly Unconstitutional Laws, Procedural Scheming, And The Need For Pre-Enforcement Offensive Litigation, Kimberley Harris
Tennessee Law Review
Reproductive rights are facing multiple existential threats. While the Supreme Court has overturned the constitutional right to pre- viability elective abortions in Dobbs v. Jackson Women's Health Organization, in Texas the ability to obtain a pre-viability abortion vanished almost ten months earlier. With the enactment of S.B. 8, the so-called "Texas Heartbeat Act," abortions after approximately the sixth week of pregnancy, including those that result from rape or incest, were banned months before the Court ruled in Dobbs. Despite being clearly unconstitutional under the then-existing precedent of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, the Texas …
The Present Public Meaning Approach To Constitutional Interpretation, Michael L. Smith
The Present Public Meaning Approach To Constitutional Interpretation, Michael L. Smith
Tennessee Law Review
Originalists often respond to critics by claiming that originalism is worth pursuing because there are no feasible alternatives. The thinking goes that even the most scathing critiques of originalism fall flat if critics fail to propose a preferable alternative to originalism. After all, it takes a theory to beat a theory. This Article proposes such a theory. While most variations of originalism require that the Constitution be interpreted based on its original public meaning, this Article proposes that the Constitution should instead be interpreted based on its present public meaning. This alternative has attracted surprisingly little discussion in the originalist …