Legal Writing and Research Commons^™

Why Fifty: An Analysis Of The Small Business Exemption Codified In The Family And Medical Leave Act Of 1993, Lynn Ridgeway Zehrt

Law Faculty Scholarship

This article analyzes the small business exemption codified in the Family and Medical Leave Act of 1993 (FMLA), which limits coverage to employers with fifty or more employees and thereby excludes a substantial portion of the American workforce from job-protected leave. Situating the FMLA within the broader landscape of federal employment legislation, the author examines the legislative history that led Congress to adopt a significantly broader small business exemption than those found in comparable statutes such as Title VII and the ADA. The article demonstrates that political compromise—shaped by concerns about employer costs and small business burdens—produced a threshold that …

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Law Faculty Scholarship

This essay posits that Justice Sonia Sotomayor is the Supreme Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.

Fixed Stars: Famous First Amendment Phrases And Their Indelible Impact, David L. Hudson Jr., Jacob David Glenn

Law Faculty Scholarship

Some passages in First Amendment law have taken on a life and legend of their own, entering our cultural lexicon for their particular power, precision or passion. Some phrases are just so beautifully written that they cannot escape notice. Others aptly capture the essence of a key concept in a memorable way. Still others seemingly have grown in importance simply by the frequency for which they are cited in later court decisions. This article analyzes ten phrases from U.S. Supreme Court First Amendment decisions that qualify as some of the most enduring passages in First Amendment jurisprudence.

A Global Perspective On Digital Sampling, Loren Mulraine

Law Faculty Scholarship

The state of the law in the United States is complicated by the fact that the de minimis doctrine is, and has been a muddled doctrine. Copyright law and patent law allow future authors and inventors to build upon the works of previous rights holders. In the patent world, the new work must be a non-obvious improvement on the original patent. In copyright, the key is that the secondary user cannot take a substantial portion of the prior author's copyrightable expression. There is no infringement without substantial similarity. By definition, a de minimis taking is the polar opposite of substantial …

Law's Religious Awakening: Cincinnati's Bible War, The Concept Of Religious Neutrality, And Its Role Today, Timothy A. Campbell

Belmont Law Review

No abstract provided.

An Argument For Restricting The Blue Pencil Doctrine, Griffin T. Pivateau

Belmont Law Review

No abstract provided.

Criminal Disenfranchisement: Deconstructing Its Justifications And Crafting State-Centered Solutions, Neely Baugh-Dash

Belmont Law Review

No abstract provided.

What The Revealed-Preferences Ranking Fails To Reveal, Jerome M. Organ

Belmont Law Review

No abstract provided.

Let's Gossip About Glossip: The Supreme Court's Misguided Adoption Of An Unsurpassable Standard For Method Of Execution Challenges Under The Eighth Amendment, Tenia L. Clayton

Belmont Law Review

No abstract provided.

The 2019 Revealed-Preferences Ranking Of Law Schools, Christopher J. Ryan Jr., Brian L. Frye

Belmont Law Review

No abstract provided.

Contemporary Issues In Environmental Law, Jenny Howard, Amanda Garcia, Bart Kempf

Belmont Law Review

No abstract provided.

Eliminating Barriers To Voting: How Allowing College Students To Use Their Student Ids To Vote In Certain Southeastern States Can Help Make Voting Great In America, Tracey B. Carter

Law Faculty Scholarship

This Article examines the impact of state voter identification laws on college students’ ability to exercise their constitutional right to vote, with a particular focus on seven Southeastern states: Tennessee and its six contiguous neighbors—Alabama, Georgia, Kentucky, Mississippi, North Carolina, and Virginia. Building on prior scholarship, the Article categorizes these jurisdictions as either “college student friendly” or “college student unfriendly” based solely on whether college student identification cards were accepted as valid forms of voter identification during the 2012 and 2016 presidential elections and the 2018 midterm elections.

After reviewing the historical development of voter ID laws, relevant provisions of …

Title Ix And Title Vii: Parallel Remedies In Combating Sex Discrimination In Educational Employment, Lynn Ridgeway Zehrt

Law Faculty Scholarship

This Article examines the federal circuit split concerning whether Title VII of the Civil Rights Act of 1964 provides the exclusive remedy for employment discrimination claims in federally funded educational institutions, or whether Title IX of the Education Amendments of 1972 offers a parallel avenue for relief. While some circuits hold that Title VII preempts employment-based sex discrimination claims under Title IX—emphasizing Title VII’s comprehensive administrative scheme and damages limitations—others permit plaintiffs to proceed directly under Title IX, thereby avoiding administrative exhaustion requirements and statutory damages caps. Through a detailed analysis of statutory structure, Supreme Court precedent, and especially the …

Bargained Justice: The History And Psychology Of Plea Bargaining And The Trial Penalty, Lucian E. Dervan

Law Faculty Scholarship

In Bargained Justice: The History and Psychology of Plea Bargaining and the Trial Penalty, Lucian E. Dervan traces the historical evolution of plea bargaining from its rejection under English common law to its dominance in modern American criminal adjudication.The article demonstrates that inducements to plead guilty—once condemned as coercive and incompatible with truth-seeking—emerged in the United States in the nineteenth century, expanded during periods of overcriminalization and prohibition, and were ultimately constitutionalized in Brady v. United States (1970). Dervan critically examines the Supreme Court’s assumption in Brady that innocent defendants would not falsely plead guilty in significant numbers. Drawing …

Slouching Towards Oblivion: Divergent Implementation And Potential Exodus Of Chevron Analysis In The Supreme Court's Interpretation Of Immigration Law, Amy L. Moore

Law Faculty Scholarship

In Slouching Towards Oblivion: Divergent Implementation and Potential Exodus of Chevron Analysis in the Supreme Court’s Interpretation of Immigration Law, Amy L. Moore examines the Supreme Court’s uneven application of Chevron deference in cases interpreting the Immigration and Nationality Act (INA). Mapping the Court’s immigration jurisprudence from 1984 through 2018, the Article documents a striking inconsistency: although the Court has repeatedly interpreted the INA, it has invoked Chevron in only a minority of those cases. Through a doctrinal survey of decisions such as Cardoza-Fonseca, Aguirre-Aguirre, and St. Cyr, the Article identifies recurring rationales for declining deference, …

A Sticky Situation: The Unconstitutional Qualification Of The Right To Bear Arms By The Federal Government Against Law-Abiding Medical Marijuana Patients, Luke C. Waters

Belmont Law Review

Medical marijuana law and policy is at a crossroads in America. On the one hand, it appears the field has achieved a level of legitimacy it so desperately sought, as more than 30 states, territories, and districts have enacted comprehensive medical marijuana programs in the past two decades. In spite of these gains, medical marijuana is often still characterized as little more than a joke or an excuse to lend drug abusers an unearned air of legitimacy. Standing in stark contrast to medical marijuana, the right to bear arms, and firearms by virtue of the association, is afforded rarified status …

Evidence-Based, Constitutionally-Sound Approaches To Reducing Gun Fatalities In Violent Relationships, Sarah Martin

Belmont Law Review

Our country is plagued by a uniquely American epidemic whereby women are shot to death by partners who say they love them. While domestic violence is a complex matter and preventing domestic abuse and domestic violence-related fatalities seems like a daunting task, the first steps are relatively simple: (1) close persistent gaps in existing firearms laws that allow dangerous abusers to obtain and continue to possess firearms, and (2) enforce existing laws regarding firearms. Ensuring that domestic abusers do not have access to deadly weapons is an evidence-based strategy to protect vulnerable victims of an otherwise seemingly unending cycle of …

Long Term Solutions To The Short-Term Problem: An Analysis Of The Current Legal Issues Related To Airbnb And Similar Short-Term Rental Companies With A Proposed Model Ordinance, Richard W.F. Swor

Belmont Law Review

Airbnb and the short-term rental market have revolutionized the way that we travel and book accommodations, and now they are beginning to require cities to revolutionize their laws. This note argues that cities should adopt an ordinance that addresses health and safety, zoning, permitting, and taxation in an enforceable way by drawing on ideas already implemented in other cities such as Chicago, San Francisco, Nashville, and Portland. In support of this conclusion, this note begins in Section I by discussing the history of vacation rentals and the sharing economy as a whole, before discussing Airbnb more specifically. Section II then …

Employers Beware: What Are Employers’ Obligations And Rights Given New Marijuana Legislations?, Shahabudeen Khan

Belmont Law Review

This article examines recent recreational and medicinal marijuana laws in the United States. Key statutes and cases are examined, including Coats v. Dish Network, LLC and Noffsinger v. SSC Niantic Operating Co., LLC. Actions and policies to reduce liability that employers could undertake are offered, and the article concludes with a look at other countries that have legalized recreational marijuana.

Whose Time Is It Anyway?: Evolving Notions Of Work In The 21st Century, Laurie Leader

Belmont Law Review

This article explores the changing nature of employment, including gig and contingent work, as well as legal definitions of employment, employer, and work. It offers solutions to better protect nontraditional workers, and examines the Internal Revenue Service’s 20-Factor Test, the Fair Labor Standards Act’s Economic Realities Test, the ABC Test, statutory definitions, the Joint Employment Theory, and policy issues regarding worker classification.

Harassment: A Separate Claim?, Sandra Sperino

Belmont Law Review

This article argues that harassment is not a separate claim under Title VII by reviewing the history of discrimination law, examining Title VII's statutory language, and Supreme Court cases and procedural ambiguity in harassment law. It discusses the pitfalls of identifying harassment as a separate claim, and recommends how plaintiffs might plead harassment within the scope of Title VII.

“For The Love Of God! Open This Door!”: Individual Rights Versus Public Safety Under The “Direct Threat” Standard Of The Americans With Disabilities Act After Three Decades Of Litigation, Jeffrey Van Detta

Belmont Law Review

This article investigates the ADA's direct-threat standard, opening with the story of Germanwings Flight 9525. It examines a disability lawsuit, EEOC v. Beverage Distributors Company, LLC, as well as the determination in Stragapede v. City of Evanston, Illinois. The article concludes by proposing a tri-partite medical review option for employers.

Inclusion Riders And Diversity Mandates, Emily Waldman

Belmont Law Review

This article examines inclusion riders, the bona fide occupational qualification defense, undue hardship, and equal burdens in the context of Title VII's prohibition of differential treatment. It also addresses the concept of 'diversity preference', affirmative action programs, and how employers can satisfy diversity preference without being discriminatory.

The United States First Climate Relocation: Recognition, Relocation, And Indigenous Rights At The Isle De Jean Charles, Adam Crepelle

Belmont Law Review

While this article focuses almost exclusively on the Isle de Jean Charles relocation, it hopes to be useful to other climate induced relocations. Section I begins with a discussion of the two major factors contributing to the disappearance of Louisiana’s coast, the blocking of the Mississippi River and the oil industry. In Section II, the article provides an overview of federal recognition, a short history of Louisiana’s coastal tribes, and how being denied federal recognition has impacted them. Section III compares federal Indian law with the rights of indigenous peoples under international law, along with a discussion of the numerous …

Max Weber Meets The Fair Housing Act: 'Life Chances' And The Need For Expanded Lost Housing Opportunity Damages, Christopher C. Ligatti

Belmont Law Review

This article will discuss the work of sociologist Max Weber, pioneer of the term “life chances,”and how the field of life chances has been adopted and expanded into placed-based theories such as “neighborhood effects” and the “geography of opportunity.” This article will then give a brief overview of the purpose of the Fair Housing Act and how its passage was not meant simply to combat offensive behavior, but to increase residential mobility. This article will also discuss how “lost housing opportunity” has previously been used by the courts. This section of the article will include a discussion of United States …

Undefined: A Call To Recognize, And Advocate For, Long-Term English Learners, Allyson Lynch

Belmont Law Review

This Note argues that the Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act, should include a definition of long-term English learner (“LTEL”), and, additionally, set a minimum expectation for states and school districts that all English learner students achieve English Language Proficiency within a maximum of five years. It proceeds in four parts: Part I provides an overview of the English Learner population and discusses the current opportunities and obstacles of this population. Part II explores prevailing research on English learners, particularly as it relates to English language acquisition rates, which has shaped policy decisions …

“Mlk 50: Where Do We Go From Here?" Teaching The Memphis Civil Rights Movement Through A Therapeutic Jurisprudence Lens, Christina A. Zawisza

Belmont Law Review

As the nation pauses to commemorate the 50th anniversary of the assassination of Dr. Martin Luther King, Jr. on April 4, 1968, in Memphis, Tennessee, it is imperative that we study the epic civil rights history of Memphis which preceded this dreadful event, especially in the legal academy. Therapeutic Jurisprudence (TJ), with its focus on laws, legal processes, and legal actors, and the extent to which they can be therapeutic or antitherapeutic, is a fitting academic vantage point. The TJ repertoire of principles and techniques and the “genius loci,” a spirit of time and place which comes from the field …

A Common-Sense Defense Of Janus: Forthcoming Changes In The Public Sector, Maria Hylton

Belmont Law Review

This paper explores public sector unions, unionized employee benefits, and public sector union member salaries in light of the Supreme Court's decision in Janus v. American Federation of State, County, and Municipal Employees. Three case studies are offered to support the argument that public sector unions exert too much influence over elected officials and taxpayers. A proposed solution is banning public sector unions.

Local Panel Discussion, Sam Jackson, Mary Beard, Karla Campbell, David Garrison, Ann Steiner, Jeffrey Usman

Belmont Law Review

Transcript of local panel discussion featuring Sam Jackson, Mary Beard, Karla Campbell, David Garrison, and Ann Steiner. The panel discussion was moderated by Professor Jeffrey Usman on March 19, 2018 at the Belmont Law Review Symposium 2018: The Modern Workplace: Contemporary Legal Issues in Employment and Labor Law.

Modern Legal History Series Free Speech Discussion, Ari Cohn, Jeffrey Usman

Belmont Law Review

Transcript of interview. Ari Cohn was interviewed by Professor Jeffrey Usman on March 19, 2018 at the Belmont Law Review Symposium 2018: The Modern Workplace: Contemporary Legal Issues in Employment and Labor Law. Cohn opens the interview by discussing his work with a nonprofit organization, FIRE. Later, he discusses the work done by FIRE's policy reform team. He speaks at length about freedom of speech issues on college campuses, referencing numerous cases, including Tinker v. Des Moines Independent Community School District and Hazelwood School District v. Kuhlmeier. The interview concludes with questions from the audience.