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Full-Text Articles in Legal Profession
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 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 …
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 …
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.
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 …
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 …
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 …
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.
A National Court For National Relief: Centralizing Requests For Nationwide Injunctions In The D.C. Circuit, Ryan Kirk
Tennessee Law Review
No abstract provided.
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.
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 …
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 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.
A Socially Beneficial False Claims Act?, Elissa Philip Gentry
A Socially Beneficial False Claims Act?, Elissa Philip Gentry
Tennessee Law Review
No abstract provided.
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.
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 …
Property Rights And Involuntary Contracting, Taorui Guan
Property Rights And Involuntary Contracting, Taorui Guan
Tennessee Law Review
No abstract provided.