Courts Commons^™

An Unavoidably Brief Historiography Of The Third Amendment, Scott D. Gerber

Tennessee Law Review

"For the record, many of my colleagues, after learning that I was to speak on the Third Amendment, sheepishly asked me what the Third Amendment is."

-Morton J. Horwitz in Valparaiso University Law Review

"The earliest efforts to curb the abuses relating to the involuntary quartering of soldiers appeared in the charters of towns and boroughs. Examples of those early enactments included Henry I's London Charter of 1130, which contained the passage '[1]et no one be billeted within the walls of the city, either of my household, or by force of anyone else . .. .' Those charters were the …

Denying The Dyad: How Criminalizing Pregnant Drug Use Harms The Baby, Taxpayers And Vulnerable Women, Melissa Ballengee Alexander

Tennessee Law Review

No abstract provided.

Labor And Employment Law-Disparate Treatment And Disparate Impact-Assessing A Pregnant Employee's Ability To Bring Suit Under The Second Clause Of The Pregnancy Discrimination Act, Alex Thomason

Tennessee Law Review

No abstract provided.

Contents

Tennessee Law Review

No abstract provided.

Sentencing Rules And Standards: How We Decide Criminal Punishment, Jacob Schuman

Tennessee Law Review

Over the past 300 years, American sentencing policy has alternated between "determinate" and "indeterminate" systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? Why should we punish wrongdoers at all?

In this Article, I ask a new, fourth question: How should we decide punishment? First, I demonstrate that determinate sentencing uses rules to decide sentences, while indeterminate sentencing relies on standards. Next, I show how the trigger-based nature of rules-in contrast to the qualitative character of standards-makes them vulnerable to four different kinds of substantive …

Daimler And The Jurisdictional Triskelion, Zoe Niesel

Tennessee Law Review

Twice in the past three years, in Goodyear Dunlop Tires Operations, S.A. v. Brown and Daimler AG v. Bauman, the Supreme Court articulated a new landscape of general personal jurisdiction; namely, exercises of dispute-blind jurisdiction will be based on a determination of whether a corporation is "at home" in the jurisdiction, not on whether the corporation had continuous and systematic contacts in the forum state. The Court's test was further explained in terms of three different fora: where the corporation is incorporated, where it maintains its principal place of business, and where there are unique circumstances suggesting that the corporation …

The Textualist Third Amendment, Michael A. Cottone

Tennessee Law Review

No abstract provided.

Constitutional Law-Second Amendment Right To Bear Arms-Valid Constitutional Restrictions On The Right To Bear Arms, Matthew Sipf

Tennessee Law Review

No abstract provided.

Ordering Proof: Beyond Adversarial And Inquisitorial Trial Structures, Mark Spottswood

Tennessee Law Review

In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process over than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory. These two psychological mechanisms will often combine to create a strong "primacy effect," in which the party who goes first gains a subtle, but significant, advantage over the opposing party. In this article, I propose a new method of ordering proof, designed to …

Third Amendment Penumbras: Some Preliminary Observations, Glenn Harlan Reynolds

Tennessee Law Review

The Bill of Rights may be facing its Frederick Jackson Turner moment, the day when its last frontier is being settled and cultivated.' Previously neglected parts of the Bill of Rights-the Ninth Amendment, the Tenth Amendment, even the Second Amendment 2 -are no longer uncharted. And now, with this Symposium, the last neglected amendment, the Third Amendment,3 already lightly explored, is seeing the first small settlements spring up.

The questions raised elsewhere in this issue are worthy, and their answers important, but my own contribution, such as it is, is inspired by the famous words of Leon Lipson, as reported …

"Bring Your Own Device" Programs: Employer Control Over Employee Devices In The Mobile E-Discovery Age, Danielle Richter

Tennessee Law Review

No abstract provided.

Constitutional Law-Equal Protection Clause-Using The Ballot Box To Overturn Affirmative Action In University Admissions, Russ Swafford

Tennessee Law Review

No abstract provided.

A Theory Of Shareholder Activism And Its Place In Corporate Law, Bernard S. Sharfman

Tennessee Law Review

Offensive shareholder activism (more commonly known as hedge fund activism) can be understood as a corrective mechanism in the governance of a public company. The legitimacy of offensive shareholder activism as a corrective mechanism is based on numerous empirical studies that have found this type of activism to be both wealth enhancing for shareholders and performance enhancing for the target companies. A non-empirical argument can also be made in support of offensive shareholder activism that focuses on the ability of the board of directors to act as an impartial arbitrator deciding between the advices provided by executive management and the …

Editorial Board

Tennessee Law Review

No abstract provided.

Attorney-Client Privilege-Crime-Fraud Exception-Use Of In Camera Review, Callie Jennings

Tennessee Law Review

No abstract provided.

Tranquility & Mosaics In The Fourth Amendment: How Our Collective Interest In Constitutional Tranquility Renders Data Dragnets Like The Nsa's Telephony Metadata Program A Search, Michael Gentithes

Tennessee Law Review

No abstract provided.

The Patented Design, Sarah Burstein

Tennessee Law Review

The design patent system is over 170 years old; however, the law of design patents is woefully underdeveloped and undertheorized. One particularly important open question has to do with the very nature of the protected subject matter-what, exactly, is "the patented design'? Accordingly, it is not clear whether the use of a claimed shape on a different type of product or a visual representation of a patentee's commercial embodiment constitutes infringement. This Article argues that neither use should be deemed to be infringing because the patented design should be conceptualized as the design as applied to a specific type of …

Contents

Tennessee Law Review

No abstract provided.

Author Index

Tennessee Law Review

No abstract provided.

End The Popularity Contest: A Proposal For Second Amendment "Type Of Weapon" Analysis, Cody J. Jacobs

Tennessee Law Review

The Supreme Court's recognition in District of Columbia v. Heller of an individual Second Amendment right to bear arms for self defense raised many questions about the scope of that right. One issue that will become increasingly important in the years ahead, but that has received relatively little attention from scholars and courts, is the question of which "arms" are protected by that right. Heller purports to establish a test that asks whether the weapon at issue is in "common use" at the time the case is decided. This Article critiques that test, arguing that it creates poor incentives, is …

Are The Rights Guaranteed By The Third Amendment Sufficiently Deep Rooted And Fundamental To Be Incorporated Into The Fourteenth?, E. Duncan Getchell Jr., Matthew D. Fender, Michael H. Brady

Tennessee Law Review

No abstract provided.

Federal Civil Procedure-Personal Jurisdiction-General Jurisdiction Over Foreign Corporations Based Upon Domestic Subsidiary Activity Within The Forum State, Katherine Smalley

Tennessee Law Review

No abstract provided.

The Third Amendment's Consent Clause: A Conceptual Framework For Analysis And Application, Mark A. Fulks, Ronald S. Range Iii

Tennessee Law Review

No abstract provided.

Wartime Quartering With And Without Legislative Authorization, William Gill

Tennessee Law Review

No abstract provided.

Addressing Racial Disparities In Preschool Suspension And Expulsion Rates, Amy B. Cyphert

Tennessee Law Review

In 2014, the Department of Education's Office for Civil Rights published data for the first time that tracked preschool suspension and expulsion rates. The data was startling: not only were preschoolers being suspended and expelled, something that surprised many readers on its own, they were being suspended and expelled in racially disproportionate numbers, with African-American boys bearing the brunt of the discipline. Politicians, researchers and advocates quickly spoke out, noting that these numbers confirmed that the school to prison pipeline really starts in preschool, and calling for reform.

In this Article, I explore some of the policies and practices that …

Frenemies Of The Court: The Many Faces Of Amicus Curiae, Helen A. Anderson

University of Richmond Law Review

No abstract provided.

The Confusing Standards For Discretionary Review In Washington And A Proposed Framework For Clarity, Judge Stephen Dwyer

Seattle University Law Review

It has now been more than thirty-five years since the Washington Rules of Appellate Procedure (RAP) became effective in 1976 and replaced all prior rules governing appellate procedure. One significant change that those rules made was to clearly describe and delineate a procedural mechanism for seeking interlocutory review of trial court decisions. The ultimate effect on practitioners is both obvious and unavoidable. Many lawyers, rather than stake out a clear position regarding the applicability of the various considerations governing discretionary review, simply argue that any and every consideration that is even arguably applicable is satisfied by the trial court’s determination. …

Taking A Dip In The Supreme Court Clerk Pool: Gender-Based Discrepancies In Clerk Selection, John J. Szmer, Erin B. Kaheny, Robert K. Christensen

Marquette Law Review

Former U.S. Supreme Court clerks are heavily recruited by select law firms, and many eventually find their way to policy “elite” positions in the government or in the legal academy. A number of former clerks have returned to the Court as litigators, and a subset has returned to the Court as Justices. We are interested in clerk selection for two reasons. First, clerks influence key aspects of the judicial process while serving in their clerkship capacity, and second, many seem to be in a good position to influence legal policy well after their clerkships have ended. With this in mind, …

Bonus Babies Escape Golden Handcuffs: How Money And Politics Has Transformed The Career Paths Of Supreme Court Law Clerks, Artemus Ward, Christina Dwyer, Kiranjit Gill

Marquette Law Review

Job prospects for former Supreme Court law clerks have radically changed in recent years. Beginning in 1986, skyrocketing law firm signing bonuses caused a transformation from the natural sorting system, where clerks chose among private practice, government, academic, and public interest positions, to a Bonus Baby Regime where former clerks almost always choose to work in private firms after they leave the Court. This development is a result of both financial and ideological factors. While the more conservative clerking corps of recent years has been increasingly drawn to private practice, the firms themselves hire along ideological lines. Still, while former …

Fielding An Excellent Team: Law Clerk Selection And Chambers Structure At The U.S. Supreme Court, Christopher D. Kromphardt

Marquette Law Review

Supreme Court Justices exercise wide discretion when hiring law clerks. The Justices are constrained only by the pool of qualified applicants and by norms of the institution, such as that beginning with Chief Justice Burger’s tenure in 1969 90% of clerks have previously served a clerkship with a federal judge. Previous work finds that ideology structures hiring decisions at the individual clerk level; however, these analyses fail to account for the fact that a Justice hires several clerks each Term—he seeks a winning team, not just a single all-star. Hiring decisions are structuring decisions in which one of a Justice’s …