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Articles 1 - 29 of 29
Full-Text Articles in Law
Series Llcs Part 1 — Current Status, Multi-State Issues And Potential Uniform Limited Liability Company Protected Series Act, Alberto R. Gonzales, J. Leigh Griffith
Series Llcs Part 1 — Current Status, Multi-State Issues And Potential Uniform Limited Liability Company Protected Series Act, Alberto R. Gonzales, J. Leigh Griffith
Law Faculty Scholarship
The Series Limited Liability Company (“Series LLC”), a variation of the traditional limited liability company (LLC), is the newest entity enterprise on the business scene today. Within this legal entity, separate “series” or “cells” can be created and established under the umbrella of a single LLC. Despite being under one “umbrella,” each of these cells has characteristics that make it both separate from one another as well as from the Series LLC itself. There is not yet a common term for these distinct units although the term series or cell is often used. The Drafting Committee for the Limited Liability …
Advancing Executive Branch Immigration Policy Through The Attorney General's Review Authority, Alberto R. Gonzales, Patrick J. Glen
Advancing Executive Branch Immigration Policy Through The Attorney General's Review Authority, Alberto R. Gonzales, Patrick J. Glen
Law Faculty Scholarship
Prospects for comprehensive immigration reform look dim in light of past failures to enact legislation, such as the DREAM Act, and a continued period of divided government placing a skeptical Republican Congress in opposition to a sympathetic Democratic President. With legislative fixes for the United States’ immigration system unlikely in the near future, the Obama Administration will continue to press its immigration agenda via executive order and enforcement memorandum. Such initiatives do provide real short-term benefits, but they are by nature temporary and lack the ability to provide any permanent status to their beneficiaries. Importantly, however, they are not the …
Social Media And “Flash-Infringement”: Live Music Culture And Dying Ip Protection, Michael M. Epstein
Social Media And “Flash-Infringement”: Live Music Culture And Dying Ip Protection, Michael M. Epstein
Belmont Law Review
This article interrogates issues of music intellectual property rights infringement at live performances. I am especially interested in music infringement at live concerts and DJ-driven mash-up parties, and the use of technologies to transfer protected content by smartphone — or remote storage device — at or near the performance site. The covalent forces of social media, including the use of smartphone apps such as Meerkat and Periscope, and flash mob culture have created a perhaps unstoppable threat to copyright and other intellectual property rights — a phenomenon that I define in this article as “flash infringement.” In a flash infringement …
Aesthetic Nondiscrimination & Fair Use, Brian L. Frye
Aesthetic Nondiscrimination & Fair Use, Brian L. Frye
Belmont Law Review
While courts do not consider the aesthetic value of an element of a work in determining whether it is protected by copyright, they do consider the aesthetic value of the use of a copyrighted element of a work in determining whether that use is a fair use. This asymmetry improperly and inefficiently discriminates in favor of copyright protection and against fair use. Moreover, the fair use transformativeness inquiry discriminates against marginalized authors, because courts are less likely to appreciate the aesthetic value of their uses of copyrighted works. Courts should apply the aesthetic nondiscrimination principle to both copyright and fair …
The Attorney–Client Privilege And Former Employees: History, Principle, And Precedent, Heath Henley
The Attorney–Client Privilege And Former Employees: History, Principle, And Precedent, Heath Henley
Belmont Law Review
When does attorney-client privilege protect communications between an attorney and her client’s former employee? Unfortunately, there is no simple answer to this question. In federal courts, privilege over communications with current employees is generally governed by the subject-matter test. Under this legal doctrine, communication is privileged when it regards subject matter within the scope of the employee’s position. The rationale for the doctrine is that it is often the lower level employees who will have the information that an attorney needs. Extending the doctrine to former employees, however, has caused courts to stumble as they have attempted to reconcile evidentiary …
'White Collar Crime': Still Hazy After All These Years, Lucian E. Dervan, Ellen S. Podgor
'White Collar Crime': Still Hazy After All These Years, Lucian E. Dervan, Ellen S. Podgor
Law Faculty Scholarship
With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under …
Fair Play Fair Pay: The Need For A Terrestrial Public Performance Right And General Copyright Reform, Loren E. Mulraine
Fair Play Fair Pay: The Need For A Terrestrial Public Performance Right And General Copyright Reform, Loren E. Mulraine
Belmont Law Review
Copyright is a unique species of the law, tethered in a very tangible way to what is largely an intangible: intellectual property. It should be no surprise then that any collection of laws governing property that can be literally created in a moment out of nothing but the mind of the creator, will ultimately have an eternal struggle keeping pace with that very thing it purports to govern. Historically, copyright law has been relegated to being the horse that is second to cross the finish line at the Kentucky Derby. The horse is indeed world class; however, it is simply …
Symposium Panel: Bringing Blurred Lines Into Focus, Suzanne Kessler, Ramona Desalvo, Sara Ellis
Symposium Panel: Bringing Blurred Lines Into Focus, Suzanne Kessler, Ramona Desalvo, Sara Ellis
Belmont Law Review
Belmont Law Review Symposium: Bringing Blurred Lines into Focus, October 2015.
Symposium Presentation: Nsai Director Bart Herbison On Copyright Reform For Songwriters, Bart Herbison
Symposium Presentation: Nsai Director Bart Herbison On Copyright Reform For Songwriters, Bart Herbison
Belmont Law Review
A transcript of a presentation at the Belmont University College of Law Symposium, "Entertainment Law and Music Business in Transition."
Symposium Address: U.S. Representative Marsha Blackburn On Federal Copyright Reform, Marsha Blackburn
Symposium Address: U.S. Representative Marsha Blackburn On Federal Copyright Reform, Marsha Blackburn
Belmont Law Review
A transcript of the address at the Belmont University College of Law Symposium, "Entertainment Law and Music Business in Transition."
Judicial Perspective Panel 2015, Jeffrey S. Bivins, Holly Kirby
Judicial Perspective Panel 2015, Jeffrey S. Bivins, Holly Kirby
Belmont Law Review
A transcript of the Judicial Perspective Panel Event at Belmont University College of Law Symposium.
Salvaging General Jurisdiction: Satisfying Daimler And Proposing A New Framework, B. Travis Brown
Salvaging General Jurisdiction: Satisfying Daimler And Proposing A New Framework, B. Travis Brown
Belmont Law Review
General jurisdiction is slowly being eroded. What was once a well-trodden path used to hale corporate defendants into the courthouse is now increasingly barred or shut. In its most recent general jurisdiction opinion, Daimler AG v. Bauman, the U.S. Supreme Court continued its trend towards divesting general jurisdiction of its utility. This is a mistake. The 21st century’s economy is increasingly complex, and general jurisdiction must evolve with this complexity. Failing to do so allows intricate corporate structures to insulate corporate defendants from the jurisdiction of U.S courts. Although the theory of personal jurisdiction has come a long way since …
The Burden Of The Bargain: Revisiting The Predicament Of Meshing Workers’ Compensation And Tort Law In Light Of Widespread Acceptance Of Aligning Liability With Fault, Margaret Hearn Teichmann
The Burden Of The Bargain: Revisiting The Predicament Of Meshing Workers’ Compensation And Tort Law In Light Of Widespread Acceptance Of Aligning Liability With Fault, Margaret Hearn Teichmann
Belmont Law Review
Most courts, legislatures, and scholars agree that the widespread movement over the past half-century toward aligning liability with fault has positively influenced tort law; however, the change has not come without difficulty. Courts and legislatures have struggled to determine how these developing doctrines affect apportionment of damages in various contexts. This note addresses the issue of how damages should be apportioned among multiple tortfeasors when an injured plaintiff has suffered a workplace injury and the employer or a coworker is partially to blame.
The Inadvisability Of Nonuniformity In The Licensing Of Cover Songs, Yolanda M. King
The Inadvisability Of Nonuniformity In The Licensing Of Cover Songs, Yolanda M. King
Belmont Law Review
In February 2015, the U.S. Copyright Office released a report entitled Copyright and the Music Marketplace, which summarizes its study of the music industry and recommends significant revisions to copyright law in response to the rapidly changing demands of the industry. Among its recommendations, the Copyright Office proposes an amendment to section 115(a)(2) of the Copyright Act. Currently, section 115(a)(2), referred to as the compulsory licensing provision of copyright law, permits someone to record a new version of a previously recorded and publicly distributed song, regardless of the format of the newly recorded version. The revised section 115(a)(2) would require …
Buckle Up: State Child Safety Restraint Laws Need To Be Strengthened To Better Protect Children, Ellen A. Black
Buckle Up: State Child Safety Restraint Laws Need To Be Strengthened To Better Protect Children, Ellen A. Black
Law Faculty Scholarship
This article reviews the history of child safety restraints and analyzes the relevant health agency recommendations to consider their accretive value in determining whether stronger child safety restraint laws should be enacted. Next, the article reviews the current state of law in the area of child safety restraints and addresses arguments against strengthening the current laws. Lastly, the article concludes that states should enact the proposed model act to ensure that this nation's children ride safely restrained.
The Meaning Of The Constitution And The Selection Of Judges, Harold See
The Meaning Of The Constitution And The Selection Of Judges, Harold See
Law Faculty Scholarship
In the ongoing debate over the best method for choosing judges, the focus has been on the perceived drawbacks of judicial election without commensurate consideration of either the advantages of popular elections or the disadvantages of the commission system-usually styled the "Missouri plan" or "merit selection." One such consideration is the means of defining the judicial power.
State 'Right To Try' Acts: A Good Start, But A Federal Act Is Necessary, Ellen A. Black
State 'Right To Try' Acts: A Good Start, But A Federal Act Is Necessary, Ellen A. Black
Law Faculty Scholarship
In an effort to help terminally ill patients bypass the FDA's arduous, time-consuming approval process and have quicker access to potentially life-saving drugs, states across the country have passed "right to try" acts. These state acts allow a terminally ill patient the right to access an investigational drug that has completed initial safety testing, known as Phase I, but that has not been approved by the FDA. The reasoning behind these acts is that terminally ill patients, with the guidance and counsel of their physicians, should have the choice whether to pursue an unapproved drug, rather than placing their fate …
Nationwide Permit 13, Shoreline Armoring, And The Important Role Of The U.S. Army Corps Of Engineers In Coastal Climate Change Adaptation, Travis Brandon
Nationwide Permit 13, Shoreline Armoring, And The Important Role Of The U.S. Army Corps Of Engineers In Coastal Climate Change Adaptation, Travis Brandon
Law Faculty Scholarship
The ongoing armoring of the nation’s coastlines with seawalls and bulkheads causes the inevitable destruction of miles of coastal wetlands. Armoring increases the rate of shoreline erosion and blocks the long term migration of wetlands inland, a process that will be necessary for coastal wetlands to survive sea level rise. Coastal armoring also reduces the habitat available to coastal species, and blocks access to the upper reaches of the beach for sea turtles and other species that depend on the beach for nesting. And yet, despite these well established and significant environmental harms, the United States Army Corps of Engineers …
Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist, William W. Berry
Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist, William W. Berry
Law Faculty Scholarship
In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if …
Local, State, And Federal Responses To Stalking: Are Anti-Stalking Laws Effective?, Tracey Carter
Local, State, And Federal Responses To Stalking: Are Anti-Stalking Laws Effective?, Tracey Carter
Law Faculty Scholarship
Statistics show that there are currently 7.5 million victims of stalking in the United States each year. The year 2014 commemorated the 20th Anniversary since passage of the federal Violence Against Women Act of 1994 (“VAWA”) that was signed by President Bill Clinton on September 13, 1994. Passage of this Act marked a key transformation in our nation’s response to the crimes of domestic violence, sexual assault, and stalking. The VAWA was established to promote “collaboration among law enforcement, health care providers, nonprofit service groups, community leaders, and the private sector” to combat these crimes. In fact, the VAWA was …
Corporate Criminal Liability, Moral Culpability, And The Yates Memo, Lucian E. Dervan
Corporate Criminal Liability, Moral Culpability, And The Yates Memo, Lucian E. Dervan
Law Faculty Scholarship
This article examines the Department of Justice's Principles of Federal Prosecution of Business Organizations (contained in the USAM) and considers the concept of "moral culpability" within them. The article goes on to propose revising the Principles of Prosecution to better focus on questions of "corporate moral culpability" as a means of more accurately assessing corporate criminal liability. In doing so, the article proposes not only changes to the Principles of Prosecution, but changes to the common law respondeat superior test for corporate liability. Finally, the article considering the impact of the Yates Memo (2015) on corporate charging decisions and the …
Internal Investigations And The Evolving Fate Of Privilege, Lucian E. Dervan
Internal Investigations And The Evolving Fate Of Privilege, Lucian E. Dervan
Law Faculty Scholarship
In 1981, the United States Supreme Court delivered a landmark ruling in Upjohn Co. v. United States. The decision made clear that the protections afforded by the attorney-client privilege apply to internal corporate investigations. This piece examines the fundamental tenets of Upjohn, discusses some recent challenges to the applicability of privilege to materials gathered during internal investigations, and considers the manner in which the international nature of modern internal investigations adds complexity and uncertainty to the field.
Everything Old Is New Again: Will Narrow Networks Succeed Where Hmos Failed?, Deborah R. Farringer
Everything Old Is New Again: Will Narrow Networks Succeed Where Hmos Failed?, Deborah R. Farringer
Law Faculty Scholarship
As health insurers try to navigate the new limitations set forth under the ACA, including prohibitions on denying individuals with pre-existing conditions and limitations on the rating of patients, insurers are looking towards models that will enable them to control costs without access to their usual tools. What they have developed is not so much a new insurance model, but actually a concept that first arose during the rise of managed care; that is, limited provider networks utilized within health maintenance organizations (“HMOs”). These “new” insurance products, often referred to as narrow networks or high-performance networks, offer beneficiaries a more …
Symposium Panel: Bringing Blurred Lines Into Focus, Loren E. Mulraine
Symposium Panel: Bringing Blurred Lines Into Focus, Loren E. Mulraine
Law Faculty Scholarship
Belmont Law Review Symposium: Bringing Blurred Lines into Focus, October 2015
Fair Play Fair Pay: The Need For A Terrestrial Public Performance Right And General Copyright Reform, Loren E. Mulraine
Fair Play Fair Pay: The Need For A Terrestrial Public Performance Right And General Copyright Reform, Loren E. Mulraine
Law Faculty Scholarship
Copyright is a unique species of the law, tethered in a very tangible way to what is largely an intangible: intellectual property. It should be no surprise then that any collection of laws governing property that can be literally created in a moment out of nothing but the mind of the creator, will ultimately have an eternal struggle keeping pace with that very thing it purports to govern. Historically, copyright law has been relegated to being the horse that is second to cross the finish line at the Kentucky Derby. The horse is indeed world class; however, it is simply …
A Special Delivery: Litigating Pregnancy Accommodation Claims After The Supreme Court’S Decision In Young V. United Parcel Service, Inc., Lynn Ridgeway Zehrt
A Special Delivery: Litigating Pregnancy Accommodation Claims After The Supreme Court’S Decision In Young V. United Parcel Service, Inc., Lynn Ridgeway Zehrt
Law Faculty Scholarship
For over twenty years, the federal courts of appeals have been divided over the extent to which the Pregnancy Discrimination Act requires employers to offer light-duty or other work accommodations to pregnant employees. The division between circuits centers on the interpretation of the language in the second clause of the Pregnancy Discrimination Act mandating that employers “shall” treat pregnant employees “the same... as other persons... similar in their ability or inability to work.” Four circuits interpreted this clause to merely explain the first clause, thereby refusing to enforce any significant obligation on employers to accommodate pregnancy-related physical limitations, even when …
Dissecting The Hybrid Rights Exception: Should It Be Expanded Or Rejected?, David L. Hudson Jr., Emily H. Harvey
Dissecting The Hybrid Rights Exception: Should It Be Expanded Or Rejected?, David L. Hudson Jr., Emily H. Harvey
Law Faculty Scholarship
In the early 1960s, the Supreme Court of the United States adopted a high level of protection for religious liberty claims. The Court applied a version of strict scrutiny when evaluating governmental laws or regulations that burdened an individual's free exercise of religion. In 1990, the Supreme Court reversed decades of precedent and fundamentally changed the meaning and application of the Free Exercise Clause. In Employment Division v. Smith, the Court, in an opinion by Justice Antonin Scalia, determined that the Free Exercise Clause does not protect individuals from laws that donot target specific religious beliefs or practices. However, Justice …
First Amendment Right To Receive Information And Ideas Justifies Citizens' Videotaping Of The Police, David L. Hudson Jr.
First Amendment Right To Receive Information And Ideas Justifies Citizens' Videotaping Of The Police, David L. Hudson Jr.
Law Faculty Scholarship
Several courts have declared that members of the public have a First Amendment-protected right to film or videotape the police. At least one legal commentator has posited that this right falls within three of the five textually-based freedoms of the First Amendment - the Speech, Press, and Petition Clauses. This right to receive information and ideas is a "corollary" of the right to speak that triggers the First Amendment interests of not only speakers, but also audiences. This right to receive information and ideas applies in the context of citizens recording the police. The public has a right to know …
Modern Legal History 2015: The Road To Obergefell, Abby Rubenfeld, Regina Lambert
Modern Legal History 2015: The Road To Obergefell, Abby Rubenfeld, Regina Lambert
Belmont Law Review
We’re going to have the opportunity to hear about the road to Tanco v. Haslam, one of the most important individual rights constitutional decisions from the United States Supreme Court in the last half-century. We’ll have an opportunity to gain from Ms. Rubenfeld’s and Ms. Lambert’s perspectives and experiences and hear their stories, Belmont Law Review Modern Legal History Symposium, November 20, 2015.