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University of Tennessee College of Law

2012

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Articles 61 - 87 of 87

Full-Text Articles in Law

Juror Privacy In The Sixth Amendment Balance, Melanie Wilson Jan 2012

Juror Privacy In The Sixth Amendment Balance, Melanie Wilson

Scholarly Works

Some eight million citizens report for jury duty every year. Arguably, jury duty is one of the most significant opportunities to participate in the democratic process. For the accused, the jury acts as an indispensable safeguard against government overreaching. One might expect, therefore, that our justice system would treat putative jurors with care and tact. The opposite is true. During voir dire, potential jurors are required to share insights into their own lives, quirks, proclivities, and beliefs. Litigants have probed jurors’ sexual orientation, criminal histories, criminal victimization, health, family relations, and beyond. A few scholars have chided the system for …


Talking Union In Two Languages Labor Rights And Immigrant Workers In East Tennessee, Fran Ansley Jan 2012

Talking Union In Two Languages Labor Rights And Immigrant Workers In East Tennessee, Fran Ansley

Scholarly Works

No abstract provided.


Front Matter Jan 2012

Front Matter

Transactions: The Tennessee Journal of Business Law

No abstract provided.


Forward: 2013 Revisions To The Tennessee Business Corporations Act, Joan Macleod Heminway Jan 2012

Forward: 2013 Revisions To The Tennessee Business Corporations Act, Joan Macleod Heminway

Transactions: The Tennessee Journal of Business Law

No abstract provided.


Determining The Proper Standard For Invalidating Arbitration Agreements Based On High Prohibitive Costs: A Discussion On The Varying Applications Of The Case-By-Case Rule, Richard A. Bales, Mark B. Gerano Jan 2012

Determining The Proper Standard For Invalidating Arbitration Agreements Based On High Prohibitive Costs: A Discussion On The Varying Applications Of The Case-By-Case Rule, Richard A. Bales, Mark B. Gerano

Transactions: The Tennessee Journal of Business Law

Arbitration is a common means of resolving commercial disputes. Although arbitration is an attractive alternative to litigation, arbitration can be disadvantageous to a potential plaintiff because of high costs. The United States Supreme Court endorsed a “liberal … policy favoring arbitration agreements” whenever possible. However, a party is often at a disadvantage upon signing an arbitration agreement when little understanding of the agreement’s cost implications exist. Such scenarios can arise when negotiating adhesion contracts or employee handbook agreements, and when they do arise, the question of whether an agreement can be invalidated because of its cost implications must be answered …


Change We Can Believe In: Comparative Perspectives On The Criminalization Of Corporate Negligence, David Kerem Jan 2012

Change We Can Believe In: Comparative Perspectives On The Criminalization Of Corporate Negligence, David Kerem

Transactions: The Tennessee Journal of Business Law

This paper comparatively explores the wisdom of America’s enforcement of federal corporate laws through the disproportionate assignment of criminal penalties at the entity-level. Although federal criminal statutes have long been enforced against individual violators, the vigor with which they are applied pales in comparison to the frequency of entity-level enforcement. This state of affairs has been undoubtedly spurred by the elevated state of mind requirements appended to federal securities statutes, the considerable difficulty of proving individual criminal intent within a fragmented corporate structure, and the availability of entity-level liability doctrine to prosecutors. This has resulted in countless individual violators evading …


Theoretical And Methodological Perspectives, Joan Macleod Heminway Jan 2012

Theoretical And Methodological Perspectives, Joan Macleod Heminway

Book Chapters

No abstract provided.


At The Intersection Of Sovereignty And Contract: Traffic Cameras And The Privatization Of Law Enforcement Power, William Davenport Mercer Jan 2012

At The Intersection Of Sovereignty And Contract: Traffic Cameras And The Privatization Of Law Enforcement Power, William Davenport Mercer

Scholarly Works

Many municipalities are making critical errors in their attempts to alleviate current financial burdens by contracting with private entities to perform many of their essential functions, most notably those agreements with companies to install traffic cameras and, in many cases, to monitor and cite offenders. By subcontracting part of their exclusive power to enforce law, these municipalities essentially bargain away sovereignty by parting with portions of their inherent police power. As these cameras fill a role played by the state’s law enforcement personnel, municipalities impermissibly infringe on the actual sovereignty of the state as well as the conceptual sovereignty of …


Is China's Housing Market Heading Toward A Us-Style Crash?, Gregory M. Stein Jan 2012

Is China's Housing Market Heading Toward A Us-Style Crash?, Gregory M. Stein

Scholarly Works

This article aims to determine whether China is heading toward a U.S.-style market crash in its housing market. Rather than attempting to maintain any suspense, I will disclose here that my conclusion is, 'Who knows?' China and the United States have dramatically different histories, cultures, governments, economies, and legal systems. Anyone who claims to have a definitive answer to this question is overly confident.

My more modest goals in this article are to examine the available evidence and see which way it seems to point. The article begins by listing and describing several different ways in which the American housing …


Constitutional Limits On The Right Of Government Investigators To Interview And Examine Alleged Victims Of Child Abuse Or Neglect, Teri Dobbins Baxter Jan 2012

Constitutional Limits On The Right Of Government Investigators To Interview And Examine Alleged Victims Of Child Abuse Or Neglect, Teri Dobbins Baxter

Scholarly Works

Investigating allegations of child abuse or neglect presents unique challenges, particularly if parents or guardians are the alleged perpetrators. Those accused of harming the children are in a position to prevent the victims from getting access to the help they need to escape their abuser(s). The courts have not clearly defined the federal constitutional boundaries of searches and seizures in this context. The Supreme Court, in particular, has not weighed in on the constitutionality of warrantless searches and seizures in connection with abuse and neglect investigations. This lack of Supreme Court guidance has led to unpredictable and sometimes conflicting opinions …


Volume 79 (2011-2012) Jan 2012

Volume 79 (2011-2012)

Tennessee Law Review

No abstract provided.


Using The Nlra To Nip Anticipatory Retaliation In The Bud, Alex B. Long Jan 2012

Using The Nlra To Nip Anticipatory Retaliation In The Bud, Alex B. Long

Scholarly Works

No abstract provided.


Professionalism And Matthew Shardlake, Alex B. Long Jan 2012

Professionalism And Matthew Shardlake, Alex B. Long

Scholarly Works

This Essay/Book Review examines the Matthew Shardlake series by C.J. Sansom. In particular, it examines the question of whether the sixteenth-century fictional lawyer Shardlake can serve as a role model for twenty-first-century lawyers, both in terms of his ethics and his professionalism. An examination of the Shardlake series as a whole yields some uncertain answers, both as to Shardlake and as to what it means to be an ethical and professional lawyer. This is ultimately part of what makes the series so enjoyable for lawyers.


State Legislative Efforts To Improve Access To Venture Capital, Brian K. Krumm Jan 2012

State Legislative Efforts To Improve Access To Venture Capital, Brian K. Krumm

Book Chapters

No abstract provided.


What Is Competition?, Maurice Stucke Jan 2012

What Is Competition?, Maurice Stucke

Book Chapters

No abstract provided.


Masculinities, Feminism, And The Turkish Headscarf Ban: Revisiting Şahin V. Turkey, Valorie K. Vojdik Jan 2012

Masculinities, Feminism, And The Turkish Headscarf Ban: Revisiting Şahin V. Turkey, Valorie K. Vojdik

Book Chapters

No abstract provided.


What Is A Security In The Crowdfunding Era?, Joan Macleod Heminway Jan 2012

What Is A Security In The Crowdfunding Era?, Joan Macleod Heminway

Scholarly Works

With the advent of the crowdfunding era, financial interests in business enterprises may look less like investment instruments commonly known as common stock or debentures, and more like loans, gambling bets, rights to consumable products or services or charitable or other nonprofit donations. A closer look at innovations in interests, instruments and offerings in the crowdfunding era preceding the enactment of the Jumpstart Our Business Startups Act (JOBS Act) offers a basis for comparisons and contrasts that raises questions about the categorization of instruments regulated as securities. These and other questions are important to a rethinking of the structure of …


Administering Justice: Removing Statutory Barriers To Reentry, Joy Radice Jan 2012

Administering Justice: Removing Statutory Barriers To Reentry, Joy Radice

Scholarly Works

After years of swelling prison populations, the reentry into society of people with criminal convictions has become a central criminal justice issue. Scholars, advocates, judges, and lawmakers have repeatedly emphasized that, even after prison, punishment continues from severe civil penalties that are imposed by federal and state statutes on anyone with a conviction. To alleviate the impact of these punishments, they have increasingly endorsed state legislation that creates certificates of rehabilitation. Seven states offer these post- conviction certificates, and six others proposed such legislation in 2011. Many look to New York’s statute as the best model because it is the …


A Better Balancing: Reconsidering Pre-Conviction Dna Extraction From Federal Arrestees, Joy Radice Jan 2012

A Better Balancing: Reconsidering Pre-Conviction Dna Extraction From Federal Arrestees, Joy Radice

Scholarly Works

Federal law mandates the collection of a biological sample from anyone arrested by federal authorities or facing federal charges, regardless of the charge. The FBI then creates a DNA profile from the sample and enters that profile into the Combined DNA Index System (“CODIS”), a national database through which law enforcement matches individuals and crime scene DNA evidence.

Part I of the essay briefly reviews the federal statute that authorizes pre-conviction DNA extraction and the Fourth Amendment principles that underlie the current constitutional challenges to it. Part II identifies the various, and sometimes competing, rationales offered to justify the constitutionality …


Derrick Bell’S Community-Based Classroom, Joy Radice Jan 2012

Derrick Bell’S Community-Based Classroom, Joy Radice

Scholarly Works

In Derrick Bell’s Community-based Classroom, I argue that Derrick Bell enhanced his participatory pedagogical approach to teaching constitutional law by intentionally creating community within the law school classroom — a community that humanized the students’ educational experience. This essay explores three ways in which he created community: through his participatory, student-centered course structure; his social classroom environment; and his interactive self-assessments. Over the past few years, legal education has come under indictment in the media for not adequately training lawyers for practice. Bell’s community-based classroom responds to this indictment, fusing both theory and practice in teaching doctrinal constitutional law courses …


Why Civil Law Countries Might Forego The Individual Trustee: Provocative Insights From The New-To-The-Fold, Iris Goodwin Jan 2012

Why Civil Law Countries Might Forego The Individual Trustee: Provocative Insights From The New-To-The-Fold, Iris Goodwin

Scholarly Works

At the center of this article lies a decision in several civil law countries that have adopted the common law trust to restrict the office of trustee to banks and similar financial service institutions. Having had an opportunity to consider the trust anew, these countries represent a challenge to the common law where the individual – indeed the untutored individual – can still qualify as trustee (and serve in this capacity alone). This permissive common law regime obtains notwithstanding the size of the trust endowment or the number of beneficiaries whose interests might be at stake. Indeed, in some common …


Redefining Summary Judgment By Statute: The Legislative History Of Tennessee Code Annotated Section 20-16-101, Judy Cornett Jan 2012

Redefining Summary Judgment By Statute: The Legislative History Of Tennessee Code Annotated Section 20-16-101, Judy Cornett

Scholarly Works

In 2011, the Tennessee General Assembly – the first majority Republican legislature in the state since Reconstruction – passed two bills purporting to legislatively overrule recent decisions of the Tennessee Supreme Court that the legislature deemed unfriendly to business interests. This article examines the legislative history of one of those bills. Public Chapter No. 498, codified as Tennessee Code Annotated section 20-16-101, attempts to change the summary judgment standard adopted by the Tennessee Supreme Court in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008). In Hannan, the Supreme Court explicitly rejected the federal Celotex standard for burden-shifting on …


Occupy Wall Street And Antitrust, Maurice Stucke Jan 2012

Occupy Wall Street And Antitrust, Maurice Stucke

Scholarly Works

Capitalism, some declare, is in crisis. One concern, which the Occupy Wall Street protesters and many Americans share, is how a relatively small group of corporate and wealthy individuals now wields too much economic influence and control in the United States and the world. The prevailing belief is that financial institutions’ power and influence represent a major threat to America.

So what does antitrust have to say about this public unease? Few would likely believe the Supreme Court’s Standard Oil opinion handed down a century ago would relate to their present concerns. That is unfortunate. The concerns Standard Oil raises …


A Due Process Right To Record The Police, Glenn Harlan Reynolds Jan 2012

A Due Process Right To Record The Police, Glenn Harlan Reynolds

Scholarly Works

There has been considerable discussion of citizens' First Amendment right to record the police. This essay, however, argues that independent of any First Amendment right, there is also a due process right to record the actions of law enforcement, and that this right applies even when the interaction takes place in private, and not in public places. This question of a due process right to record the police has not yet produced the degree of attention and litigation that public recording has, but the growth of inexpensive recording equipment and its inclusion in smart phones ensures that such attention and …


Fatherhood By Conscription: Nonconsensual Insemination And The Duty Of Child Support, Michael J. Higdon Jan 2012

Fatherhood By Conscription: Nonconsensual Insemination And The Duty Of Child Support, Michael J. Higdon

Scholarly Works

Nathaniel was a California teenager who became a father in 1995. The mother of Nathaniel’s child was named Ricci, and at the time of conception, she was thirty-four years old. Nathaniel, however, was merely fifteen. Although Nathaniel admitted to having sex with Ricci voluntarily about five times, the fact that he was under sixteen years of age at the time made it legally impossible for him to consent to sexual intercourse. In other words, under California law, Nathaniel was not only a new father, but was also a victim of statutory rape. Nonetheless, in a subsequent action for child support, …


Triaging Appointed-Counsel Funding And Pro Se Access To Justice, Benjamin H. Barton Jan 2012

Triaging Appointed-Counsel Funding And Pro Se Access To Justice, Benjamin H. Barton

Scholarly Works

For decades, scholars and advocates have lauded Gideon’s guarantee of appointed counsel in criminal cases and sought to extend it into a civil-Gideon right in a range of civil cases. This past Term, the Supreme Court disappointed the civil-Gideon movement in Turner v. Rogers, unanimously rejecting an across-the-board right to counsel while encouraging reforms to make courts more accessible to pro se litigants. Turner is mostly right, we argue, because funding limitations require reserving counsel mostly for criminal cases, where they are needed most. For the first time, the Court recognized that lawyers can make cases not only slower and …


Federal Income Tax Issues Of Financially Troubled Corporations, Don Leatherman Jan 2012

Federal Income Tax Issues Of Financially Troubled Corporations, Don Leatherman

Scholarly Works

No abstract provided.