Law Commons^™

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 …

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 …

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, …

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 …

Merit And Mobility: A Progressive View Of Class, Culture, And The Law, Lucille Jewel

Scholarly Works

Rising income inequality and financial trauma in the middle class beg the question of whether social mobility, long a part of America’s narrative identity, is truly available to Americans residing in the lower rungs of society. This paper addresses the connection between culture and social mobility, looking particularly at how culture impacts social outcomes in America’s meritocratic educational system. Analyzing culture and cultural capital from a progressive perspective, this paper concludes that culture operates subtly, helping some retain or improve their existing position but interfering with the mobility of others. The rhetoric of individual merit, however, obscures the role that …

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

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 …

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 …

Second Amendment Penumbras: Some Preliminary Observations, Glenn Harlan Reynolds

Scholarly Works

With the Second Amendment now a working part of the Bill Of Rights in the wake of the Supreme Court's decisions in District of Columbia v. Heller and McDonald v. Chicago, this brief Essay examines the likely extent of penumbral rights under the Second Amendment, as well as the possible effect on unenumerated rights in general of an enforceable right to arms.

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 …

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 …

Contested Elections As Secret Weapon: Legislative Control Over Judicial Decision-Making, Judy Cornett

Scholarly Works

The current interbranch tensions in the federal government have been just as potent, if not more so, at the state level. Legislative challenges to state judiciaries are accumulating nationwide. In one state, Tennessee, the newly-elected Republican majority in the General Assembly has flexed its legislative muscle in several ways, ranging from the outright hostile – threatening the imposition of contested elections for the state’s appellate judges and a takeover of the body that governs judicial conduct – to the more sublime. A less-publicized, but no less significant, step that the legislature took in 2011 was to overrule a recent decision …

Desire, Conservatism, Underfunding, Congressional Meddling, And Study Fatigue: Ingredients For Ongoing Reform At The Securities And Exchange Commission?, Joan Macleod Heminway

Scholarly Works

This article suggests the use of program evaluation -- a branch of social science research designed to assess organizations and their activities -- to analyze continued reform efforts at the Securities and Exchange Commission ("SEC") under Section 967 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 967 compelled the SEC to retain an independent consultant to evaluate and issue a report on its structure and operations and mandated that the SEC engage in post-study reporting to Congress over a two-year period on its implementation of resulting reforms. The article concludes that program evaluation techniques are useful in …

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

Scholarly Works

No abstract provided.

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 …

Resolving The Ip Disconnect For Small Businesses, Leah Chan Grinvald

Scholarly Works

Small businesses are an important component of the American economy. In fact, the jobs created by small businesses could assist the United States in overcoming its most recent economic downturn. Paradoxically, though, the failure rate of small businesses is quite high. Although various factors contribute to this high failure rate, one of the factors the U.S. government has focused on has been the disproportionate impact that intellectual property laws, policies, and their enforcement may have on small businesses. While the U.S. government has paid attention to the impact of domestic intellectual property laws on small businesses, the government has paid …

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Scholarly Works

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs’ class certification motion. But for certain employment rights cases – mainly wage claims but also age discrimination and gender equal pay claims – 29 U.S.C. § 216(b) allows not class actions but “collective actions” covering just those opting in affirmatively. Courts in collective actions assume a gatekeeper role as they do in Rule 23 class action, disallowing many actions by requiring a certification motion …

Introduction: Lawyers As Conservators?, Joan W. Howarth

Scholarly Works

This Symposium reminds us of our most important work, to protect legal institutions and the rule of law, and asks this most provocative question: Will 21st Century Business, Regulatory, and Educational Challenges Destroy the Lawyer's Role As Guardian of Legal Institutions and the Rule of Law?To some Symposium participants, the question posed is too dystopian. Is survival of the rule of law really at stake? For others, the Symposium question suggests a prior, even darker one: How can we conserve what is already lost? How, indeed, will we conserve legal institutions and the role of law? Are we, as lawyers, …

Professor John "Jack" Apol, 1941-2012: In Memoriam, Joan W. Howarth

Scholarly Works

No abstract provided.