Legal Profession Commons^™

On Balance: Leading By Leaving, Paula Schaefer

Tennessee Law Review

No abstract provided.

Leading Institutional Change: Law Schools And Legal Education In A Time Of Crisis, Donald J. Polden

Tennessee Law Review

No abstract provided.

Uncertainty And Reverse Payments, Ramsi A. Woodcock

Tennessee Law Review

The current approach to "reverse payment" settlements of drug patent litigation seeks to preclude only those settlements guaranteed to harm consumers, rather than all that could harm them. Antitrust tolerates the possibility of harm in order to give firms the freedom to make settlements that might benefit consumers, relative to what courts would achieve under patent law. Antitrust's mission is not, however, to improve upon outcomes under patent law, but rather to prevent harm to consumers. Accordingly, antitrust must minimize the possibility of harm, even if that precludes the chance of gain. I show that a ban on all settlements …

The Protection Of Conscience: On Aca, Rfra And Free Exercise Guarantees, Mark Strasser

Tennessee Law Review

No abstract provided.

Contents

Tennessee Law Review

No abstract provided.

Unconstitutional Quartering, Governmental Immunity, And Van Halen's Brown M&M Test, Tom W. Bell

Tennessee Law Review

The jurisprudence of the Third Amendment, which limits the quartering of troops in private homes, effectively consists of just one case: Engblom v. Carey.' But what a case! In addition to showcasing an unjustly neglected corner of our constitutional heritage, Engblom demonstrates the troubling effects of a dubious legal doctrine: governmental immunity. Though the court of appeals had held New York officials potentially liable for violating the Third Amendment when they had quartered National Guard troops in the dormitory rooms of striking prison guards, the lower court on remand in Engblom denied the plaintiffs a remedy. Why? Because throughout the …

A Word On The Third: Three Approaches To The Third Amendment's Place In Constitutional Rhetoric, Gabriel Latner

Tennessee Law Review

"War is not a courtesy but the most horrible thing in life; and we ought to understand that, and not play at war. We ought to accept this terrible necessity sternly and seriously."

"[The Constitutional Amendment prohibiting forced quartering except in times of] War, (ooh, yeah, good God y'all), what is it good for?"

- War & Peace by Leo Tolstoy and Edwin Starr

Are Houses Of Worship "House[S]" Under The Third Amendment?, Eric Rassbach

Tennessee Law Review

No abstract provided.

Contents

Tennessee Law Review

No abstract provided.

Identifying The Culprit In Wrongful Convictions, Valena Elizabeth Beety

Tennessee Law Review

No abstract provided.

Subject Index

Tennessee Law Review

No abstract provided.

Table Of Cases

Tennessee Law Review

No abstract provided.

Abortion, Amendment 1, And The Future Of Procreational Rights Under The Tennessee Constitution, Glenn Harlan Reynolds

Tennessee Law Review

No abstract provided.

The Marrying Kind, Zachary Herz

Tennessee Law Review

We are living in a Constitutional moment. In the span of half a century, LGBT people have been cast out, tolerated, accepted, and finally celebrated: In time with that shift, same-sex marriage has gone from absurdity, to threat, to fundamental right. This Article queries the links between those two processes and their potential implications for constitutional anti-discrimination law more broadly.

Specifically, this Article considers two features of equal protection jurisprudence that have entered into strange, silent conflict: the discriminatory purpose doctrine established in Washington v. Davis and Personnel Administrator of Massachusetts v. Feeney, and the tendency of courts to treat …

Harper Lee's First Novel: A Review Of Go Set A Watchman (Harper Collins 2015), Judy M. Cornett

Tennessee Law Review

No abstract provided.

On Free, Harmful, And Hateful Speech, Ronald Turner

Tennessee Law Review

Judicially recognized and relatively unobjectionable and uncontroversial exceptions to the coverage and protection of the First Amendment to the United States Constitution are grounded, in part, on affirmative answers to the question whether certain speech creates or could create actual or potential harms to, and result in negative consequences for, individuals and societal interests. This article, focusing on speech-related harm and, more specifically, the speech-related harms of hate speech, makes a descriptive claim and poses a normative question. The descriptive claim: Assessment of harm has long been a feature of the United States Supreme Court's free speech jurisprudence and decisions …

Judicial Doctrine As Risk Regulation, Brannon P. Denning, Michael B. Kent Jr.

Tennessee Law Review

Much of the literature on risk regulation concerns "first-order" risks--e.g., those addressed by environmental law or workplace safety rules. But scholars recently have suggested that risk regulation can provide a helpful framework for thinking about "second-order," or political, risks arising from allocations of power and institutional design. Although a few commentators have utilized this perspective to suggest connections between risk regulation and particular areas of constitutional law, in this essay we take a broader view. Building on the existing literature, we argue that the selection of constitutional decision rules is a judicial effort to regulate the political risk that government …

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

Tennessee Law Review

No abstract provided.

The "War" Against Crime: Ferguson, Police Militarization And The Third Amendment, Elizabeth Price Foley

Tennessee Law Review

No abstract provided.

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.