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A Reexamination Of The Parens Patriae Power, Esther K. Hong
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 …
In Defense Of A Liberal Choice-Based Approach To Residential Segregation, W.C. Bunting
In Defense Of A Liberal Choice-Based Approach To Residential Segregation, W.C. Bunting
Tennessee Law Review
This Article argues that not all forms of residential segregation are alike. Certain patterns of residential segregation can be distinguished along two key dimensions: (1) voluntariness; and (2) net social impact. Voluntary residential segregation is largely incompatible with outcome-based policies designed to promote residential integration. This Article claims that the existence of voluntary spatial clustering implies that the government must adopt an ex ante choice-based approach to residential integration that seeks to protect and enable freedom of choice in housing rather than an ex post outcome-based approach that seeks to implement and maintain specific patterns of residential segregation. The central …
Legal Realism And Legal Reality, Matthew X. Etchemendy
Legal Realism And Legal Reality, Matthew X. Etchemendy
Tennessee Law Review
This Article critically reexamines the relationship between Legal Orthodoxy and American Legal Realism. Legal Orthodoxy is a familiar jurisprudential perspective according to which judges do not make law, the law is complete or gapless, and the answers to legal questions are determinable through autonomous inquiry. Legal Orthodoxy featured prominently in the legal thought of Christopher Columbus Langdell and Joseph Henry Beale, and the Realist critique of the Langdellian conception of legal science and education is widely viewed as a decisive refutation of Legal Orthodoxy.
Contrary to this conventional wisdom, I argue that the Realist critique of Langdellianism only justifies a …
A National Court For National Relief: Centralizing Requests For Nationwide Injunctions In The D.C. Circuit, Ryan Kirk
Tennessee Law Review
No abstract provided.
Reconciling Legal And Technical Approaches To Algorithmic Bias, Alice Xiang
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 …
The New Due Process: Fairness In A Fee-Driven State, Glenn H. Reynolds, Penny J. White
The New Due Process: Fairness In A Fee-Driven State, Glenn H. Reynolds, Penny J. White
Tennessee Law Review
No abstract provided.
Practical Abolition: Universal Representation As An Alternative To Immigration Detention, Matthew Boaz
Practical Abolition: Universal Representation As An Alternative To Immigration Detention, Matthew Boaz
Tennessee Law Review
No abstract provided.
A Socially Beneficial False Claims Act?, Elissa Philip Gentry
A Socially Beneficial False Claims Act?, Elissa Philip Gentry
Tennessee Law Review
No abstract provided.
Covid's Constitutional Conundrum: Assessing Individual Rights In Public Health Emergencies, James G. Hodge Jr., Jennifer L. Piatt, Emily Carey, Hanna N. Reinke
Covid's Constitutional Conundrum: Assessing Individual Rights In Public Health Emergencies, James G. Hodge Jr., Jennifer L. Piatt, Emily Carey, Hanna N. Reinke
Tennessee Law Review
Considerable legal challenges alleging infringements of constitutional rights have arisen against governments imposing social distancing or other restrictive measures to quell the COVID-19 pandemic. Courts assess these claims largely under two approaches. Consistent with constitutional re-balancing, judges weigh the application of rights against governments' compelling interests to protect public health and safety in emergencies. Alternatively, a minority of courts temporarily set aside existing rights to effectuate emergency responses. Both approaches insufficiently account for the flexible nature of rights and freedoms in exigencies pursuant to the Constitution's cohesive design. In public health emergencies, courts should engage in guided assessments focused on …
Avoiding The Great Divide: Assuring Court Technology Lightens The Load Of Low-Income Litigants Post-Covid-19, Katherine L.W. Norton
Avoiding The Great Divide: Assuring Court Technology Lightens The Load Of Low-Income Litigants Post-Covid-19, Katherine L.W. Norton
Tennessee Law Review
No abstract provided.
The Simultaneity Puzzle: Lawyers Working At Multiple Law Firms, Paul R. Tremblay
The Simultaneity Puzzle: Lawyers Working At Multiple Law Firms, Paul R. Tremblay
Tennessee Law Review
No abstract provided.
Legal Research Just In Time: A New Approach To Integrating Legal Research Into The Law School Curriculum, Denitsa R. Mavrova Heinrich, Tammy Pettinato Oltz
Legal Research Just In Time: A New Approach To Integrating Legal Research Into The Law School Curriculum, Denitsa R. Mavrova Heinrich, Tammy Pettinato Oltz
Tennessee Law Review
No abstract provided.
Joking, Exaggerating Or Contracting?, William A. Drennan
Joking, Exaggerating Or Contracting?, William A. Drennan
Tennessee Law Review
We love the funny, and that's no exaggeration. In a joke, a duck is the funniest animal, you'll get more laughs in a red room than a blue room, 103 characters is the optimal length for a joke, and we know all this statistically because scholarly researchers often study humor. Litigators, courts, and commentators also focus on the funny when deciding whether promissory language created a binding contract. They frequently debate and decide enforceability based on whether a party was joking.
This Article asserts, for the first time, that in many of these cases the focus should be on whether …
The Economic And Efficiency Benefits Of Expanding The § 25d Investment Tax Credit, Kelsey Morgan
The Economic And Efficiency Benefits Of Expanding The § 25d Investment Tax Credit, Kelsey Morgan
Tennessee Law Review
No abstract provided.
Property Rights And Involuntary Contracting, Taorui Guan
Property Rights And Involuntary Contracting, Taorui Guan
Tennessee Law Review
No abstract provided.
Redesigning Restorative Justice For Criminal Justice Reform, Matthew D. Kim
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 …
The Modest Impact Of The Modern Confrontation Clause, Jeffrey Bellin, Diana Bibb
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 …
Preserving The Fruits Of Labor: Impediments To University Inventor Mobility, Brenda M. Simon
Preserving The Fruits Of Labor: Impediments To University Inventor Mobility, Brenda M. Simon
Tennessee Law Review
Academic inventors must overcome numerous obstacles when they seek to leave their parent universities. The results of their work are often intertwined in what I call "innovation-essential components," which are important aspects of the. innovative process that create strong ties to the parent university, such as data, patents, trade secrets, grants, contracts, materials, and other agreements and restrictions. Innovation-essential components effectively bind university inventors to their parent institutions, making departure unworkable without the university's approval. Universities sometimes further complicate inventor mobility by entering into unlawful agreements with other academic institutions in their efforts to prevent inventor movement or by engaging …