Law Commons^™

Yes To Infill, No To Nuisance, Michael Lewyn

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This article argues against the use of private nuisance suits to exclude apartments from residential neighborhoods, based on the public interest in affordable housing and walkable infill development.

Third Amendment Penumbras: Some Preliminary Observations, Glenn Harlan Reynolds

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In the landmark case of Griswold v. Connecticut, the Supreme Court told us that the Third Amendment casts a penumbra. This Essay, part of a Tennessee Law Review symposium on the Third Amendment, looks at the Third Amendment, and its construction in such cases as Griswold and Engblom v. Carey, to conclude that the Third Amendment's penumbral protections may extend to protect areas of domestic concern against state interference in the form of things like "affirmative consent" laws, regulation of childrearing practices, and invasions of electronic privacy. It concludes with some thoughts on how the Third Amendment should be read …

Toward More Equal Access To Justice: The Tennessee Experience, Douglas A. Blaze, R. Brad Morgan

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No abstract provided.

Registering Trade And Service Marks In Tennessee: A Brief How-To Guide, Brian Krumm, Zackarij R. Gardner

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No abstract provided.

The Third Amendment In The 21st Century, Glenn Harlan Reynolds

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No abstract provided.

If It Ain't Broke, Break It - How The Tennessee General Assembly Dismantled And Destroyed Tennessee's Uniquely Excellent Judicial System, Penny White

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No abstract provided.

"All Writs" In Bankruptcy And District Courts: A Story Of Differing Scope, George Kuney

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No abstract provided.

No Mistake About It: The Important Role Of Antitrust In The Era Of Big Data, Maurice Stucke, Allen Grunes

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Competition authorities in Europe (and to a lesser extent in other jurisdictions) are beginning to make data, its uses, and its implications for competition law, a key focus. Some, however, argue that competition law has a limited role to play in the era of big data. We respectfully disagree. Competition law will play an integral role to ensure that we capture the benefits of a data-driven economy while mitigating its associated risks.

After outlining several implications of big data on competition policy, we address some of the myths about big data and competition law. These myths paint with a broad …

Teaching Business Associations With Group Oral Midterms: Benefits And Drawbacks, Joan Macleod Heminway

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I focus in this Article on a particular way to assess student learning in a Business Associations course. Those of us involved in legal education for the past few years know that “assessment” has been a buzzword...or a bugaboo...or both. The American Bar Association (ABA) has focused law schools on assessment (institutional and pedagogical), and that focus is not, in my view, misplaced. Until relatively recently, much of student assessment in law school doctrinal courses was rote behavior, seemingly driven by heuristics and resulting in something constituting (or at least resembling) information cascades or other herding behaviors.

In the fall …

Breaking The Fever: A New Construct For Regulating Overtreatment, Isaac ("Zack") D. Buck

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The Department of Justice’s (“DOJ”) current theory of overtreatment regulation — and, in fact, all of the prominent amount of medical necessity-based health care fraud enforcement — adopts the argument that providers are violating the False Claims Act when they submit bills to the federal government for care they administered that is not medically necessary. Besides stoking the ire of the provider community, this regulatory strategy is susceptible to inefficiency, imprecision, and — as I have argued before — overuse. Whether a procedure was medically necessary can be a highly difficult question to answer, one easily swayed by clinically-complex details, …

The Career Path, Education, And Activities Of Academic Law Library Directors Revisited Twenty-Five Years Later, Michael J. Slinger, Sarah C. Slinger

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In conducting this new study, our goal is to provide useful information to the profession and guidance to future law library directors. We also think that by examining the director position we can provide a window into how the profession of academic law librarianship is evolving. Some of the changes we uncovered we see as positive. However, other changes are of concern, including an emerging trend at some institutions to remove full faculty status from the director. This is alarming to those of us who think retaining full partnership with the law faculty is crucial for the future effectiveness of …

Codifying Chevmore, Kent H. Barnett

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This Article considers the significance and promise of Congress’s unprecedented codification of the well-known Chevron and Skidmore judicial-deference doctrines (to which I refer collectively as “Chevmore”). Congress did so in the Dodd-Frank Act by instructing courts to apply the Skidmore deference factors when reviewing certain agency-preemption decisions and by referring to Chevron throughout.

This codification is meaningful because it informs the delegation theory that undergirds Chevmore (i.e., that Congress intends to delegate interpretive primacy over statutory interpretation to agencies under Chevron or courts under Skidmore). Scholars and at least three Supreme Court Justices have decried the judicial inquiry into congressional …

Judging Multidistrict Litigation, Elizabeth Chamblee Burch

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High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle.

Or do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of …

The Open Access Advantage For American Law Reviews, Carol A. Watson, James M. Donovan, Caroline Osborne

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Open access legal scholarship generates a prolific discussion, but few empirical details have been available to describe the scholarly impact of providing unrestricted access to law review articles. The present project ills this gap with specific findings on what authors and law reviews can expect.

Articles available in open access formats enjoy an advantage in citation by subsequent law review works of 53%. For every two citations an article would otherwise receive, it can expect a third when made freely available on the Internet. This benefit is not uniformly spread through the law school tiers. Higher tier journals experience a …

Embracing A Rich Diversity Promoting Diversity Among Patrons And Staff, Shamika Dalton

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No abstract provided.

What Do We Owe The Pro Se Litigant?, Nathan A. Preuss

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No abstract provided.

The Curious Case Of Competition And Quality, Maurice Stucke, Ariel Ezrachi

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Alongside the consideration of price, competition authorities recognize that quality can be as, if not more, important in some markets. But as competition authorities also recognize, identifying the dimensions of competition important to many consumers is difficult. Even when these dimensions of quality are identified, measuring them represents additional challenges.

To circumvent these challenges, competition authorities rely on several heuristics when assessing a merger’s, cartel’s or monopolistic restraint’s impact on quality. Often the heuristics work well for the competition authorities.

Our paper, however, identifies several scenarios where these heuristics break down, when competition and quality are not positively correlated, and …

Wanting To Do More But Bound To Do Less: A Law Librarian’S Dilemma, Paul Mclaughlin

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The role of the law librarian has changed from managing the contents of a library’s collection of books to knowing how to find information sources located around the world contained in a variety of formats, taking part in instruction, and participating in networking activities. Law librarians are constrained by legal and professional codes. If they are cautious, law librarians can assist, instruct, and reach out to public patrons and students while operating within the professional guidelines that govern them.

The Symbiotic Relationship Between Privacy Law And Anti-Discrimination Law, Alex B. Long

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No abstract provided.

Some Early Thoughts On Liability Standards For Online Providers Of Legal Services, Benjamin H. Barton

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This article discusses how legal malpractice, products liability, and negligence might apply to providers of online legal services.

Oil And Water: How Legal Education's Doctrine And Skills Divide Reproduces Toxic Hierarchies, Lucille A. Jewel

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The longstanding categorical distinction that elevates doctrinal teaching over skills teaching continues to harm the profession of law. In this Article, I consider two distinct effects produced by the doctrine/skills dichotomy. First, the dichotomy is responsible for reinforcing class, gender, and race segmentation in legal education, which limits the quality of instruction that law schools can provide and abets the reproduction of existing power relations in the legal profession and society at large.

Second, the antipodal positioning of doctrine and theory over skills and practice harms law schools’ ability to prepare a new generation of law students to engage in …

The Criminality Of "Tax Planning", Michelle M. Kwon

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In recent years, the federal government has adopted an aggressive prosecution policy that targets tax advisors who help their clients evade taxes. Increased prosecutions coupled with the present-day sophistication of tax practice call for a critical examination of the willfulness standard applied to tax advisors who use the Code and Treasury regulations as part of their regular practices. This is something no previous legal scholarship has done. To establish willfulness, the government must show that a person accused of a tax crime intentionally violated a known legal duty. Because knowledge of illegality is an element of the government's tax evasion …

Chinese Real Estate Law And The Law And Development Theory: Comparing Law And Practice, Gregory M. Stein

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No abstract provided.

Good-Bye Significant Contacts: General Personal Jurisdiction After Daimler Ag V. Bauman, Judy Cornett

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This article shows that the Supreme Court's opinion in Daimler AG v. Bauman (2014) marks a significant departure from settled practice. It argues that the decision's restriction of general jurisdiction will prevent reasonable access to courts in some cases, eroding the power of state courts for the sake of achieving policy goals that are more appropriate for the political branches.

A Response To Professor Sperino's Retaliation And The Unreasonable Judge, Alex B. Long

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No abstract provided.

What Is Even More Troubling About The "Tortification" Of Employment Discrimination, Alex B. Long

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No abstract provided.

Marginalized Fathers And Demonized Mothers: A Feminist Look At The Reproductive Freedom Of Unmarried Men, Michael J. Higdon

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Just last month, in the state of Utah, twelve biological fathers filed suit, challenging the state’s adoption laws — laws the fathers allege permit “legalized fraud and kidnapping.” Specifically, these laws require nonmarital fathers to promptly take legal action in Utah to preserve their paternal rights. A problem arises, however, as mothers from other states have started traveling to Utah specifically to surrender newborn children for adoption. The fathers, unaware that their children are being placed for adoption in another state, fail to take action in Utah and, as a result, are permanently deprived of all parental rights. In that …

Narrow Networks, The Very Sick, And The Patient Protection And Affordable Care Act: Recalling The Purpose Of Health Insurance And Reform, Valarie K. Blake

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Consumers purchasing health insurance on both state and federally-run exchanges are finding that affordable premiums may come at the cost of restricted provider choice. So-called narrow networks are increasingly popular in individual, small group, and large group insurance markets as a means for insurers to curb premiums and compete for business. As PPACA regulations limit medical underwriting and homogenize insurance offerings, insurers are agreeing to nudge their patients to a narrow selection of providers in exchange for better reimbursement rates and lower premiums. This may mean wider availability of health insurance for the public, increased enrollment for insurers, and cost-savings …

Finding New Inspiration In The Adaaa, Alex B. Long

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No abstract provided.

Enforcement Overdose: Health Care Fraud Regulation In An Era Of Overcriminalization And Overtreatment, Isaac ("Zack") D. Buck

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In an effort to address the growing problem of “overtreatment” in American health care, the federal government has turned to its 150-year-old statute, the civil False Claims Act (FCA) to prosecute providers who do too much. Lacking many of the traditional hallmarks of conventional health care fraud scenarios, this new enforcement framework features cases in which the government alleges that a provider is administering health care that is inefficient, too costly, or unnecessary. As I have argued before, in addition to ensnaring “innocent” providers, this regulatory regime allows the federal government to both (1) freeze practice standards by arresting their …