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Tennessee Law Review

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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

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

Tennessee Law Review

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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

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

Tennessee Law Review

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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

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

Tennessee Law Review

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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

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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

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Author Index

Tennessee Law Review

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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

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

Tennessee Law Review

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

Tennessee Law Review

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Wartime Quartering With And Without Legislative Authorization, William Gill

Tennessee Law Review

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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 …

Clapper V. Amnesty International: Two Or Three Competing Philosophies Of Standing Law?, Bradford C. Mank

Tennessee Law Review

In its 2013 decision Clapper v. Amnesty International, the United States Supreme Court invoked separation-of-powers principles by holding that public interest groups alleging that the Government was spying on their foreign clients failed to demonstrate Article III standing because they could not prove that the future surveillance injury that they purportedly feared was "certainly impending." Justice Breyer's dissenting opinion argued that "commonsense" suggested that the Government was spying on the plaintiffs' foreign clients and proposed a "reasonable" or "high" probability standing test. Implicitly, the Clapper decision also presented a third approach to standing decisions. In footnote 5 of the opinion, …

A Primer On Professionalism For Doctrinal Professors, Paula Schaefer

Tennessee Law Review

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Resistance By Inferior Courts To Supreme Court's Second Amendment Decisions, Alice Marie Beard

Tennessee Law Review

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Contents

Tennessee Law Review

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Buying The American Dream: Using Immigration Law To Bolster The Housing Market, Kit Johnson

Tennessee Law Review

Escaping notice in debate about immigration reform is a proposal that would give residency visas to foreign nationals on the condition that they buy an expensive home. Proponents see visas as a simple way to shore up the U.S. housing market. Yet complications abound. This Article scrutinizes the history, logic, economics, and morals of the proposed homebuyer visa, as well as its intersection with state laws that restrict foreign ownership of land.

Table Of Cases

Tennessee Law Review

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Contents

Tennessee Law Review

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The Curious Case Of The Secondary Market With Respect To Investor Protection, Adi Osovsky

Tennessee Law Review

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