Legal Profession Commons^™

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.

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.

K. William Gibson's Flying Solo: A Survival Guide For The Solo And Small Firm Lawyer, 5th Ed., Brian T. Detweiler

Law Librarian Book Reviews

No abstract provided.

People Of The Book: Judaism’S Influence On American Legal Scholarship, My Journey From Judaism To Jewish Law, Donna Litman

Faculty Scholarship

My personal study of the Torah and the Talmud as an adult has enhanced my legal scholarship and helped shape my current thinking on legal theory. At the same time, my professional legal training and experience as a law professor has shaped my understanding of Judaism and provided a legal terminology and a lens by which to view the array of Jewish laws. A confluence of events helped shape my personal and professional journey.

Designing A Solo And Small Practice Curriculum, Meredith R. Miller

Scholarly Works

There is a reality commonly ignored by the curriculum in most law schools: the largest segment of law graduates will eventually be solo or small firm practitioners. Even before the Great Recession, nearly two thirds of lawyers in the United States practiced in solo or small firms. Since 2008, trends show an increase in the number of recent law graduates that “hang a shingle.” According to a 2012 report of the American Bar Association, about three-quarters of lawyers in the United States work in private practice. Of those attorneys, about seventy percent are in solo or small firms. Many find …