Courts Commons^™

Subject Index

Tennessee Law Review

No abstract provided.

Author Index

Tennessee Law Review

No abstract provided.

Availability's Law, Ido Kilovaty

Tennessee Law Review

Cybersecurity incidents affecting the availability of computers, networks, and data are on the rise. Distributed denial-of-service and ransomware attacks can bring down critical systems and databases, making them unavailable when most needed, potentially affecting every individual, industry, sector, and branch of government. This Article critically evaluates cybersecurity law's gap in addressing the growing threat of availability attacks to information technology systems. While cybersecurity law is defined as the legal framework that "promotes the confidentiality, integrity, and availability of public and private information, systems, and networks ... ." this Article argues that cybersecurity law is overwhelmingly concerned with confidentiality and integrity, …

Fixed Intentions: Wills, Living Wills, And End-Of-Life Decision-Making, Jane B. Baron

Tennessee Law Review

Contemporary trusts and estates law is built on the premise that individuals can and should have fixed intentions with respect to the disposition of their property at death. These intentions can and should be fixed in a written document, and that document can and should be fixed against other outside evidence of intention. Experience with end-of-life health care decision-making gives reason to question these premises. In the health care context, intentions have proven to be fluid, and the documents purporting to record individuals' wishes have often proved unreliable.

This Article examines the implications for wills of the literature on end-of-life …

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

Tennessee Law Review

No abstract provided.

"Assault Weapon" Lethality, E. Gregory Wallace

Tennessee Law Review

No abstract provided.

Simple Audits For Simple Tax Partnerships, Andrew L. Lawson

Tennessee Law Review

New rules targeting sophisticated tax partnerships unnecessarily burden small, unsophisticated taxpayers. This is a familiar narrative in partnership tax. This time, the story takes place in the rules that prescribe the process by which the IRS audits and collects tax from partnerships and partners. Designed to limit abuse, the rules are highly complex and needlessly saddle small, simple businesses with increased compliance costs and potentially excessive tax liability. Ironically, at the same time, the rules leave loopholes for sophisticated organizations able to exploit them. This Article explains these disparate consequences and suggests solutions to both limit the loopholes for large …

Contents

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."

Adjusting Pre- And Post-Judgment Interest Rates For Consumer Debt Collection Actions, Christine Abely

Tennessee Law Review

This Article discusses how states can set fair, just, and equitable statutory pre- and post-judgment interest rates in the context of consumer debt collection litigation. Where states set pre- and post-judgment interest rates applicable to state civil actions, they generally choose one of the two following methods: (1) a fixed rate of interest, in some cases set decades ago and far exceeding the current market rate; or (2) a floating rate with a fixed percentage of interest added. Federal courts in civil actions with federal question jurisdiction apply a purely floating rate of interest tracking a market benchmark to calculate …

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 …

Information Age Technology, Industrial Age Laws, Elizabeth Winston

Tennessee Law Review

The United States patent system was born during the Industrial Age at a time where the focus was on promoting innovation in machines and tangible means of changing the world. With the dawn of the Information Age, innovation is increasingly intangible. The Industrial Age laws, as currently interpreted, are not well-suited for the changing and evolving technological world. Information Age innovators face challenges at the United States Patent and Trademark Office, through the judicial system and at the United States International Trade Commission. It is time for a change in the system to reflect the realities of modern technology. Adequate …

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.

The Origination Clause's Missing Piece, Chris Land

Tennessee Law Review

The Origination Clause is nearly constitutional surplusage today. The scope of the Clause has been limited by the U.S. Supreme Court to a very narrow class of revenue legislation that emerges from the U.S. House of Representatives.

This Article, for the first time, analyzes historical evidence that the U.S. Supreme Court has defined the constitutional scope of 'Bills for raising Revenue" and the concomitant reach of the Clause in a manner that fails to account for Revolutionary-era British revenue legislation. Four of the five bills passed by the British Parliament which contributed to the outbreak of the Revolutionary War, i.e., …

Table Of Cases

Tennessee Law Review

No abstract provided.

Why The Dea & Not The Fda? Revisiting The Regulation Of Potentially Addictive Substances, Taleed El-Sabawi

Faculty Publications

In addressing the opioid overdose crisis, Congress has explicitly questioned its historic reliance on a criminal justice approach to problem drug use and has instead adopted a more health-oriented approach. Despite Congress' rhetoric, the DEA, a criminal justice agency, continues to retain the power to make key decisions on the classification of potentially-addictive substances, thereby affecting their manufacture, distribution, and overall availability. While the DEA is statutorily required to defer to the Food and Drug Administration (“FDA”), a public health agency, at junctions of the decision-making process, the current “split enforcement” scheme laid out in the statutes has not actualized …

Concepts, Not Nomenclature: Universal Injunctions, Declaratory Judgments, Opinions And Precedent, Howard Wasserman

Faculty Publications

Battle lines are drawn on the permissibility and validity of injunctions in federal constitutional litigation purporting to halt government enforcement of a challenged law against all possible targets of that law and to protect all rights holders against enforcement. Courts, members of the Supreme Court, and legal scholars are divided — some supporting and others rejecting them as impermissible.; I have staked my position in the latter camp.

From that starting point, this paper considers three subsidiary issues: 1) the proper label for these injunctions, arguing that “universal” or “non-particularized” is a more accurate term than the prevailing “nationwide”; 2) …

Gender Diversity, Women’S Leadership, And Consensus In State Supreme Courts, Meghan E. Leonard, Joseph V. Ross

Faculty Publications – Politics and Government

In this article, we argue that the leadership of women as chief justice or the majority opinion author, as well as an increased presence of women on the panel, should increase the likelihood of unanimous decisions and the size of majority coalitions in state supreme courts. Using an original dataset of cases in three policy areas from all state supreme courts from 1990-2015, we uncover some surprising results. In some issue areas, majority coalitions are larger when a woman serves as the majority opinion author, though we see smaller coalitions when more women are on the court and a man …

Article 6bis Of The Paris Convention: How The United States Court Of Appeals For The Second Circuit Is Violating International Law, Deepa Singh

American University International Law Review

No abstract provided.

A Colonial Castle: Defence Of Property In R V Stanley, Alexandra Flynn, Estair Van Wagner

All Faculty Publications

In 2016, Gerald Stanley shot 22-year-old Colten Boushie in the back of the head after Boushie and his friends entered his farm. Boushie died instantly. Stanley relied on the defence of accident and was found not guilty be an all-white jury. Throughout the trial, Stanley invoked concerns about trespass and rural crime (particularly property crime), much of which was of limited relevance to whether or not the shooting was an accident. We argue that the assertions of trespass shaped the trial, yet were not tested by the jury through a formal invocation of the defence of property.

Retroactive Adjudication, Samuel Beswick

All Faculty Publications

This Article defends the retroactive nature of judicial lawmaking. Recent Supreme Court judgments have reignited debate on the retroactivity of novel precedent. When a court announces a new rule, does it apply only to future cases or also to disputes arising in the past? This Article shows that the doctrine of non-retroactive adjudication offers no adequate answer. In attempting to articulate a law of non-retroactivity, the Supreme Court has cycled through five flawed frame-works. It has variously characterized adjudicative non-retroactivity as (1) a problem of legal philosophy; (2) a discretionary exercise for balancing competing right and reliance interests; (3) a …

The Categorical Imperative As A Decarceral Agenda, Jessica M. Eaglin

Articles by Maurer Faculty

In his forthcoming book, The Insidious Momentum of Mass Incarceration, Frank Zimring proposes two alternative methods to decarcerate: states can adopt a categorical imperative to reduce prison populations or states can reform the governance of sentencing. This symposium Essay focuses on the first of these options, as proposed in his tentative Chapter Six, wherein Zimring calls for categorically removing drug-addicted offenders from eligibility for prison sanctions and expanding use of jails for categories of offenses or offenders.

These methods, I suggest, exist in tension with numerous popular sentencing reforms being implemented in the states right now. Popular reforms, including the …

No Longer A ‘Collateral Consequence’: Imprisonment And The Reframing Of Citizenship, Cormac Behan

Articles

This article examines the impact of imprisonment on citizenship. It identifies how civil, political and social rights are circumscribed with a sentence of imprisonment, and scrutinizes to what extent citizenship is limited for prisoners. Drawing on recent developments in England and Wales, it contends that citizenship has been eroded, not as a ‘collateral consequence’ of imprisonment, but rather as a determined penal policy. The boundaries of punishment have become blurred, moving from criminal justice institutions, and extending towards what is termed civil and political penality. Finally, it argues that, because citizenship in prison is inevitably framed around the differences between …

Transition Without Transformation: The Legacy Of Sudan's Comprehensive Peace Agreement, Gene Carolan

Articles

In recent years, the transitional justice framework has expanded to include a broader notion of transformative justice, which strives for socio-political reform in addition to legal accountability. Over the course of two civil wars, Sudan has grappled with various attempts at transition and transformation with mixed results. Though the 2005 Comprehensive Peace Agreement brought an end to decades of North–South conflict, South Sudan’s subsequent descent into civil war has been characterised by a flawed transition and a lack of any immediate transformative potential. This paper analyses the Comprehensive Peace Agreement’s transitional mechanisms. In doing so, it explores how certain mechanisms …

Judicial Elections, Public Opinion, And Their Impact On State Criminal Justice Policy, Travis N. Taylor

Theses and Dissertations--Political Science

This dissertation explores whether and how the re-election prospects faced by trial court judges in many American states influence criminal justice policy, specifically, state levels of incarceration, as well as the disparity in rates of incarceration for Whites and Blacks. Do states where trial court judges must worry about facing reelection tend to encourage judicial behavior that results in higher incarceration rates? And are levels of incarceration and racial disparities in the states influenced by the proportion of the state publics who want more punitive policies? These are clearly important questions because they speak directly to several normative and empirical …

Halliburton Ii At Four: Has It Changed The Outcome Of Class Certification Decisions?, Noah Weingarten

Fordham Journal of Corporate & Financial Law

The U.S. Supreme Court's decision in Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258 (2014) (Halliburton II) appeared to give corporate defendants a new tool to defeat class certification in the context of securities fraud class action litigation: rebutting the requisite presumption of reliance by showing a lack of "price impact"-a term that Halliburton II used to describe whether the price of an allegedly affected company's stock went up or down. However, based on an empirical study of pre- versus post-Halliburton II class certification decisions, it appears that the outcomes of class certification decisions have become even …

Balancing Sorna And The Sixth Amendment: The Case For A "Restricted Circumstance-Specific Approach", John F. Howard

Marquette Law Review

The Sex Offender Registration and Notification Act (SORNA) is in place to protect the public, children especially, from sex offenders. Under SORNA, anyone and everyone convicted of what the law defines as a “sex offense” is required to register as a “sex offender,” providing accurate and up-to-date information on where they live, work, and go to school. Failure to do so constitutes a federal crime punishable by up to ten years imprisonment. But how do federal courts determine whether a particular state-level criminal offense constitutes a “sex offense” under SORNA? Oftentimes when doing comparisons between state and federal law for …

The Icc And Beyond: Re-Evaluating The Promise Of International Criminal Justice: Remarks, Charles C. Jalloh

Articles

No abstract provided.

Revisiting The Enforceability Of Online Contracts: The Need For Unambiguous Assent To Inconspicuous Terms, Tom Mozingo

Seattle University Law Review

In determining the enforceability of online contracts, namely those formed from the use of smartphone applications, courts typically look to whether the contract terms were reasonably conspicuous or communicated to the consumer. With the rise of “browse-wrap” contracts, where terms are not directly communicated to the consumer or where the consumer is not required to click the equivalent of an “I agree” button clearly manifesting assent to the terms, courts have inconsistently applied the reasonable communicativeness standard to the detriment of consumers and application developers alike. This Comment will explore the development of browse-wrap contracting jurisprudence and the need to …

"Inciting A Riot": Silent Sentinels, Group Protests, And Prisoners' Petition And Associational Rights, Nicole B. Godfrey

Seattle University Law Review

This Article argues for increased legal protections for prisoners who choose to engage in group protest to shed light on the conditions of their incarceration. A companion piece to a similar article that focused on prisoner free speech rights, this Article uses the acts of protest utilized by the Silent Sentinels to examine why prisoners’ rights to petition and association should be strengthened. By strengthening these rights, the Article argues that we will advance the values enshrined by the First Amendment’s Petition Clause while simultaneously advancing the rights of the incarcerated millions with little to no political power.

The Article …