Law Commons^™

Affording Obamacare, Isaac ("Zack") D. Buck

Scholarly Works

As it approaches its tenth birthday, the Patient Protection and Affordable Care Act (ACA) is devolving. Intended to solve problems that had vexed American health care for generations, the ACA built a comprehensive structure by providing more Americans with accessible health insurance, reordering the private insurance market, expanding and reconfiguring Medicaid, and installing rational incentives into America’s health care enterprise. Without question, it was the most important piece of health care legislation since the mid-1960s, and it brought about positive change for millions of Americans.

However, over its short lifespan, the ACA has faced persistent practical, popular, and policy-based challenges. …

"Assault Weapon" Lethality, E. Gregory Wallace

Tennessee Law Review

No abstract provided.

The Gen Z Juror, Leslie Y. Garfield Tenzer

Tennessee Law Review

The Magna Carta drafters did not contemplate Facebook, Twitter, or texting when they formalized the jury system, a system that remains mostly unchanged 800 years after its inception. Those primed for jury duty over the coming decades have grown up with a cell phone in their hand and news at their fingertips. It is unreasonable to expect Gen Zers to meet the "radio-silence" mandate of jury duty. As smartphones become the de facto method of communication, courts, legislatures, and scholars offer prohibitions, admonitions, and increased punishment to curtail juror misconduct. These reforms, however, do little to prevent the kind of …

Front Matter

Transactions: The Tennessee Journal of Business Law

Front Matter for Transactions: The Tennessee Journal of Business Law, Fall 2020.

Gut Renovations: Using Critical And Comparative Rhetoric To Remodel How The Law Addresses Privilege And Power, Lucille Jewel, Elizabeth Berenguer, Teri Mcmurtry-Chubb

College of Law Faculty Scholarship

No abstract provided.

Treating Professionals Professionally: Requiring Security Of Position For All Skills-Focused Faculty Under Aba Accreditation Standard 405(C) And Eliminating 405(D), Lucille Jewel, J. Lyn Goering, Susie Salmon, Craig Smith, Kristen Robbins-Tiscione, Melissa Weresh

College of Law Faculty Scholarship

In 2014, the American Bar Association (ABA) decided to retain Accreditation Standard 405 in its current form to preserve tenure for law faculty as well as the status, security of position, governance rights, and academic freedom that tenure provides. In doing so, the ABA also preserved the long-standing hierarchy that elevates doctrine-focused faculty over skills-focused faculty. That hierarchy discriminates against skills-focused faculty, particularly those who specialize in legal writing--most of whom are women. This paper calls on the ABA to address this discrimination against skills-focused faculty and the negative effects it has on schools, faculty, and students. As explained in …

If You Grant It, They Will Come: The History And Enduring Legal Legacy Of Migratory Divorce, Michael Higdon

College of Law Faculty Scholarship

Fifty years ago, California became the first state to enact no-fault divorce, making it easier than ever before for individuals to dissolve unsuccessful marriages. Soon every state would follow suit, and over the years much has been written about this national shift in the law of divorce. What has thus far escaped scrutiny, however, is one of the prime casualties of that switch—the phenomenon of migratory divorce. That failure is somewhat ironic given that, although no-fault divorce has existed for just over fifty years, migratory divorce played a prominent role in American legal history for well over a hundred years. …

Parens Patriae And The Disinherited Child, Michael Higdon

College of Law Faculty Scholarship

Most countries have safeguards in place to protect children from disinheritance. The United States is not one of them. Since its founding, America has clung tightly to the ideal of testamentary freedom, refusing to erect any barriers to a testator’s ability to disinherit his or her children—regardless of the child’s age or financial needs. Over the years, however, disinheritance has become more common given the evolving American family, specifically the increased incidences of divorce, remarriage, and cohabitation. Critics of the American approach have offered up solutions largely based on the two models currently employed by other countries: 1) the forced …

Treating Professionals Professionally: Requiring Security Of Position For All Skills-Focused Faculty Under Aba Accreditation Standard 405(C) And Eliminating 405(D), Lucille Jewel

Scholarly Works

In 2014, the American Bar Association (ABA) decided to retain Accreditation Standard 405 in its current form to preserve tenure for law faculty as well as the status, security of position, governance rights, and academic freedom that tenure provides. In doing so, the ABA also preserved the long-standing hierarchy that elevates doctrine-focused faculty over skills-focused faculty. That hierarchy discriminates against skills-focused faculty, particularly those who specialize in legal writing--most of whom are women. This paper calls on the ABA to address this discrimination against skills-focused faculty and the negative effects it has on schools, faculty, and students. As explained in …

Review Of: The First: How To Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, And Donald Trump, Rebecca Kite

College of Law Faculty Scholarship

No abstract provided.

Rethinking Libel For The Twenty-First Century, Glenn Harlan Reynolds

Tennessee Law Review

No abstract provided.

A Little Child Shall Lead Them: Juvenile Justice, Aging Out, And The First Step Act, Jalila Jefferson-Bullock

Tennessee Law Review

"When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things."

Private Debt And Public Violence [Reviews], Wendy A. Bach

Scholarly Works

No abstract provided.

Structuring The Deal To Avoid Patent Exhaustion (Post Impression Products V. Lexmark), Sachin Bhatmuley

Transactions: The Tennessee Journal of Business Law

The Supreme Court’s 2017 ruling in Impression Products v. Lexmark clearly came as an unwelcome, though not unexpected, shock to patent owners. In it, the Supreme Court ruled on two issues—the ability of a patentee to enforce post-sale restrictions on a patented product and the exhaustion of the patentee’s rights when the patented product was purchased internationally. On both counts, the Court took a position unfavorable to patent owners. Part I of this paper introduces patent exhaustion and briefly surveys the jurisprudence in the area of IP exhaustion. Part II of this paper provides the analysis of the Lexmark Supreme …

Illegal Exactions, Renee Burbank

Tennessee Law Review

Illegal exactions, or unlawful exactions, are an amorphous category of government activities with two unifying characteristics: (1) the government acts in its sovereign capacity but beyond its authority, and (2) its action enriches the government at a person's or organization's expense. The law of illegal exactions has developed through infrequent clusters of cases over 150 years, without substantial academic evaluation or discourse. The case law, thus, often lacks theoretical coherence. Lacking a single defining framework to use, courts have borrowed from torts, Fifth Amendment takings, and due process claims to define the scope of illegal exactions. Although it is an …

Contents

Tennessee Law Review

No abstract provided.

Reframing Taxigration, Jacqueline Lainez Flanagan

Tennessee Law Review

Tax compliance by undocumented immigrant workers could and should be the architectural centerpiece of immigration reform. Analyzing this premise using broad economic frameworks and examining corresponding mechanisms in U.S. tax and immigration systems, this article seeks to reframe "taxigration" to signify tax filing as a threshold condition to legalization.

"Taxigration" was originally coined by immigration practitioners to signal the intersection between immigration and tax law, most often when individuals in the midst of legalization proceedings file tax returns to supplement their immigration petitions. Conversely, unauthorized workers with no viable path toward legalization must adhere to a tax filing mandate, facilitated …

Righteous Indignation: Prosecutorial Misconduct, Brady, And The Cognitive Limits Of Self-Policing, Jonathan Harwell, Marshall Jensen, Sarah Heath Olesiuk, Sally B. Seraphin

Tennessee Law Review

No abstract provided.

Ethics And Evidence Too Hot To Handle, Douglas R. Richmond

Tennessee Law Review

No abstract provided.

Alternative Venture Capital: The New Unicorn Investors, Anat Alon-Beck

Tennessee Law Review

The U.S. Securities and Exchange Commission has promulgated new rules designed to harmonize and improve the "patchwork" exempt offering framework, protect investors and facilitate capital formation. Additionally, the U.S. Department of Labor announced that the fiduciary responsibility provisions of the Employee Retirement Income Security Act of 1974 do not prohibit fiduciaries of 401(k) and other individual account plans from investing in, and undertaking exposure to, private equity investments. These policies address the concern that retail investors are missing out on investment opportunities, due to fewer listed firms and initial public offerings, the greater role of the private market in raising …

Professor Julian Conrad Juergensmeyer’S "Impact": Scholarly, Theoretical, And Practical, Becky Jacobs

Scholarly Works

It is difficult to believe that a decade has passed since the original Festschrift in honor of the occasion of Julian Conrad Juergensmeyer’s 45th year of teaching. That first Festschrift was an impressive and moving scholarly tribute to Julian’s impact on his colleagues, on his students, and on broader legal doctrine. Yet, despite the many accolades received and accomplishments documented in Festschrift I, Julian lamented with typical humility and self-deprecation, in his Introduction and Thank You that he had “never succeeded in developing a course which adequately links the coverage of land use and environmental law[,]” but that he hoped …

Sustainable And Unchallenged Algorithmic Tacit Collusion, Maurice Stucke

Scholarly Works

No abstract provided.

Dying For Equal Protection, Teri Dobbins Baxter

Scholarly Works

When health policy experts noticed that health outcomes for African Americans were consistently worse than those of their White counterparts, many in the health care community assumed that the poor outcomes could be blamed on poverty and lifestyle choices. Subsequent research told a different story. Studies repeatedly showed that neither money, nor marriage, nor educational achievement protect African American men, women, or children from poor health. Instead, the disparities were more likely explained by racism. Specifically, multiple studies have shown that experiencing racism has been linked to increased infant and maternal mortality rates, elevated stress levels, and an increased risk …

What Ails Rural Health Care?, Isaac ("Zack") D. Buck

Scholarly Works

No abstract provided.

The United States International Religious Freedom Act, Nonstate Actors, And The Donbas Crisis, Robert C. Blitt

Scholarly Works

This chapter explores whether recent changes to the International Religious Freedom Act (IRFA) furnish the U.S. government with effective tools for engaging with and taking potential action against nonstate actors, such as the self-proclaimed Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR), operating in the context of the Donbas crisis. Among the major amendments to IRFA introduced at the end of 2016, the statute now provides the U.S. government with the formal obligation to report on violent nonstate actors (NSAs) found to be violating freedom of religion or belief. In addition, the executive branch may designate those NSAs …

Rethinking Libel For The Twenty-First Century, Glenn Harlan Reynolds

Scholarly Works

Today, many institutional arrangements reached in the mid-twentieth century are being rethought and renegotiated. One such arrangement involves libel, and the responsibility of publishers for harm they cause via defamation. In his recent concurrence to the denial of certiorari in the case of McKee v. Cosby, Justice Clarence Thomas called for the Supreme Court to revisit the constitutional protections for publishers of libelous material, arguing that the existing arrangement, dating to New York Times Co. v.Sullivan and its progeny, is out of date and unsupported by the Constitution. As even some left-leaning scholars note, he may have a point, and …

Uneasy Lies The Head That Owns Property, Gregory M. Stein

Scholarly Works

No abstract provided.

The Regulation Of Equity Index Futures, Lynn Bai

Transactions: The Tennessee Journal of Business Law

Equity index futures are one of the most actively traded derivative instruments in financial markets around the world. Advancements in trading and clearing technologies transformed the marketplace over the past two decades. Regulation drastically changed to keep pace with the market’s development. New rules have been implemented covering trading activities, risk management, market surveillance, and customer protection. Legal literature on the regulation of this important financial instrument is surprisingly antiquated. Existing papers were written decades ago and do not reflect the true metes and bounds of today’s regulatory landscape. This paper fills the void. It provides a comprehensive discussion of …

The Simplicity In Modernizing Financial Disclosure, Tyler Jacobs

Transactions: The Tennessee Journal of Business Law

Financial disclosure protects investors from fraud, provides the information allowing investors to make educated decisions, and facilitates capital formation. In proposing ideas to increase the efficiency and effectiveness of the current financial disclosure regulatory regime, this paper attempts to answer two primary questions: 1) Should a simplified form of financial disclosure be introduced?; and 2) How can financial disclosure, and the related body of regulations, be modernized via current technology? Academic studies focused on investor behavior and mental capacity will provide guidance in answering Question One. To answer Question Two, the paper will propose ideas resulting in increased accessibility and …

Case Commentaries

Transactions: The Tennessee Journal of Business Law

Case Commentaries include the following:

• Cal Burton, CONTRACTS—INTERPRETING THE PARTIES’INTENT
• Shane Carey, FAMILY LAW—UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT
• Issam Bahour, LLCS—VALUATION OF MEMBERSHIP INTEREST IN LIMITED LIABILITY COMPANIES
• Jonathan Russell, ARBITRATION—CHALLENGING A DELEGATION PROVISION
• Jonathan Davis, BANKRUPTCY—CREDITOR’S MOTION FOR RELIEF FROM AN AUTOMATIC STAY
• Robert Fristche, COVENANTS—WHEN A SUCCESSOR CAN MODIFY A RESTRICTIVE COVENANT
• Andrew Gaither, BANKRUPTCY—INTERNATIONAL COMITY
• Samuel Rule, COMMERCIAL LEASES—RIGHT OF FIRST REFUSAL FOR A TRANSFER TO A RELATED PARTY