Law Commons^™

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: The Potential For Defensive Litigation, Charles W. "Rocky" Rhodes, Howard M. Wasserman

SMU Law Review

The Texas Heartbeat Act (SB8) prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the law adopts a unique enforcement scheme—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

In a series of articles, we explore how SB8’s exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law’s constitutional validity and obtaining judicial review. This piece explores defensive litigation, in which …

Contents

Tennessee Law Review

No abstract provided.

The Rulification Of General Personal Jurisdiction And The Search For The Exceptional Case, Judy M. Cornett

Tennessee Law Review

No abstract provided.

Contents

Tennessee Law Review

No abstract provided.

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

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

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 …

Author Index

Tennessee Law Review

No abstract provided.

Subject Index

Tennessee Law Review

No abstract provided.

Case Index

Tennessee Law Review

No abstract provided.

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 …

Contents

Tennessee Law Review

No abstract provided.

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

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

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 …

America's Lawyerless Courts: Legal Scholars Work To Recommend Large-Scale Changes In Lawyerless Civil Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Faculty Scholarship

At approximately 9:00 on most weekday mornings, thousands of state civil courts open their doors and begin hearing cases. These cases involve hundreds of thousands of people acrossthe country. State civil courts are the core of America's civil justice system, whether measured by a raw number of cases or courts'impact on ordinary people's lives. These courts handle 98% of all civil matters filed each year – around 20 million cases.

Many people are pulled into civil court because they cannot pay their rent or debts. Many more come to court for help with intimate and family relationships, including those seeking …

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

Alleged Violations Of The 1955 Treaty Of Amity, Economic Relations, And Consular Rights (Iran V. U.S.) (Judgment On Preliminary Objections) (I.C.J.), Diane A. Desierto

Journal Articles

On February 3, 2021, the International Court of Justice delivered its judgment on preliminary objections in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America). The judgment rejected all of the United States’ preliminary objections, declared the admissibility of Iran's Application, and held that the Court has jurisdiction “on the basis of Article XXI, paragraph 2 of the Treaty of Amity, Economic Relations, and Consular Rights of 1955.”

The Field Of State Civil Courts, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan, Jessica K. Steinberg

Faculty Scholarship

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …

Individualizing Criminal Law’S Justice Judgments: Shortcomings In The Doctrines Of Culpability, Mitigation, And Excuse, Paul H. Robinson, Lindsay Holcomb

All Faculty Scholarship

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ. There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome. On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense. In between these two clear points, however, exists a large collection …

A Miser’S Rule Of Reason: The Supreme Court And Antitrust Limits On Student Athlete Compensation, Herbert J. Hovenkamp

All Faculty Scholarship

The unanimous Supreme Court decision in NCAA v. Alston is its most important probe of antitrust’s rule of reason in decades. The decision implicates several issues, including the role of antitrust in labor markets, how antitrust applies to institutions that have an educational mission as well as involvement in a large commercial enterprise, and how much leeway district courts should have in creating decrees that contemplate ongoing administration.

The Court accepted what has come to be the accepted framework: the plaintiff must make out a prima facie case of competitive harm. Then the burden shifts to the defendant to produce …

28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan

Faculty Works

In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and …

State V. Hampton-Boyd, 253 A.3d 418 (R.I. 2021, Brian W. Murphy

Roger Williams University Law Review

No abstract provided.

State V. Michaud, 251 A.3d 9 (Ri 2021)., Blair Robinson

Roger Williams University Law Review

No abstract provided.

Beagan V. Rhode Island Department Of Labor And Training, 253 A.3d 858 (R.I. 2021), Candace Quinn

Roger Williams University Law Review

No abstract provided.

The Long Shadow Of United States V. Rosenberg: A Biographical Perspective On The Hon. Irving Robert Kaufman, Rodger D. Citron

Scholarly Works

No abstract provided.

Courts In Conversation, Thomas P. Schmidt

Faculty Scholarship

Ralph Waldo Emerson once suggested that we read not for instruction but for provocation. By that standard, in The Words That Made Us, Akhil Reed Amar has written a characteristically great book. This is not to deny that there is abundant instruction in its many pages: Amar offers a synoptic and yet still nuanced description of the great constitutional conversation that engulfed American political life in the eighty or so years around the founding. One of the chief values of the book, though, is that it will provoke a whole new set of additions to the constitutional conversation that …

Judicial Minimalism In Lower Courts, Thomas P. Schmidt

Faculty Scholarship

Debate about the virtues and vices of “judicial minimalism” is evergreen. But as is often the case in public law, that debate so far has centered on the Supreme Court. Minimalism arose and has been defended as a theory about how Justices should judge. This Article considers judicial minimalism as an approach for lower courts, which have become conspicuous and powerful actors on the public law scene. It begins by offering a framework that disentangles the three basic meanings of the term “judicial minimalism”: decisional minimalism, which counsels judges to decide cases on narrow and shallow grounds; prudential minimalism, which …

Courts, Constitutionalism, And State Capacity: A Preliminary Inquiry, Madhav Khosla, Mark Tushnet

Faculty Scholarship

Modern constitutional theory deals almost exclusively with the mechanisms for controlling the exercise of public power. In particular, the focus of constitutional scholars lies in explaining and justifying how courts can effectively keep the exercise of public power within bounds. But there is little point in worrying about the excesses of government power when the government lacks the capacity to get things done in the first place. In this Article, we examine relations between the courts, constitutionalism, and state capacity other than through limiting state power. Through a series of case studies, we suggest how courts confront the problem of …

Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman

Articles

There are two things that everyone knows about the Ninth Circuit Court of Appeals: it is very large, and it is very liberal. But common knowledge is sometimes wrong. Is that the case here?

About the first point – the Ninth Circuit’s size – there can be no dispute. The Ninth Circuit Court of Appeals has 29 authorized judgeships, almost twice as many as the second-largest court. But what about the second point – the liberalism? Knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”

Until now, no one has empirically tested whether …