Open Access. Powered by Scholars. Published by Universities.®

Legal Writing and Research Commons™

Open Access. Powered by Scholars. Published by Universities.®

Articles 61 - 90 of 131

Full-Text Articles in Legal Writing and Research

Whose Time Is It Anyway?: Evolving Notions Of Work In The 21st Century, Laurie Leader Jan 2019

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 Jan 2019

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 Jan 2019

“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 Jan 2019

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 Jan 2019

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 Jan 2019

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 Jan 2019

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 Jan 2019

“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 Jan 2019

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 Jan 2019

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 Jan 2019

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.


At The Intersection Of Health And Justice: How The Health Of American Indians And Alaska Natives Is Disproportionately Affected By Disparities In The Criminal Justice System, Bette Jacobs, Mehgan Gallagher, Nicole Heydt Jan 2019

At The Intersection Of Health And Justice: How The Health Of American Indians And Alaska Natives Is Disproportionately Affected By Disparities In The Criminal Justice System, Bette Jacobs, Mehgan Gallagher, Nicole Heydt

Belmont Law Review

American Indian and Alaska Natives (AI/AN) are a neglected population in the United States. Their health and welfare needs are often swept aside and, because of historical treaty agreements with the United States government, they suffer disparities in the justice system and, consequently, poor health. A deep look into everyday life for an AI/AN tells a story of poverty and relatively low life expectancy, proportionately high incidences of disease, high rates of incarceration, and prolific alcohol and substance abuse. AI/ANs are incarcerated at a higher rate proportionately than their white counterparts. They experience harsher sentences, due in part to jurisdictional …


Title Vii Discrimination Protections & Lgbt Employees: The Need For Consistency, Certainty & Equality Post-Obergefell, Regina Hillman Jan 2019

Title Vii Discrimination Protections & Lgbt Employees: The Need For Consistency, Certainty & Equality Post-Obergefell, Regina Hillman

Belmont Law Review

This article explores employment protections against discriminatory practices for LGBT Americans. Factors such as jurisdiction, employment type, and geography all play a role in whether or not protections are extended to LGBT individuals. This article also examines Title VII of the Civil Rights Act of 1964, the role of the EEOC in enforcing federal laws prohibiting discrimination, as well as executive orders and protections.


The Wake Of Wayfair: Addressing State Taxation Issues After South Dakota V. Wayfair., Leigh Stanfield Jan 2019

The Wake Of Wayfair: Addressing State Taxation Issues After South Dakota V. Wayfair., Leigh Stanfield

Belmont Law Review

This student note examines the impact of e-commerce on state tax revenue. It explores internet retail jurisprudence, and the South Dakota v. Wayfair, Inc. decision. It explores state approaches to taxing e-commerce revenue, as well as continuing issues in e-commerce taxation, and concludes with a model provision.


The Due Process Conundrum: Using Mathews V. Eldridge As A Standard For Private Hospitals Under The Health Care Quality Improvement Act, Amy L. Moore Jan 2018

The Due Process Conundrum: Using Mathews V. Eldridge As A Standard For Private Hospitals Under The Health Care Quality Improvement Act, Amy L. Moore

Belmont Law Review

In response to growing litigation between doctors and hospitals and the recalcitrance of some hospitals to initiate proper peer review actions against incompetent or unprofessional doctors, Congress passed the Health Care Quality Immunity Act in 1986. HCQIA provided immunity for hospitals that engaged in peer review, presuming immunity from both federal and state law claims if the hospital had satisfied the statutory safeguards. One of these statutory requirements is “adequate notice and procedures” for the doctors at issue. It is abundantly clear in both the legislative history of HCQIA and the case law surrounding HCQIA immunity that section 11112(a)(3) was …


No Angels In Academe: Ending The Constitutional Deference To Public Higher Education, William E. Thro Jan 2018

No Angels In Academe: Ending The Constitutional Deference To Public Higher Education, William E. Thro

Belmont Law Review

This Article’s thesis is simple—because public university administrators are no more angelic than other constitutional actors are, the judiciary’s deference to higher education officials must end. There is no reason for greater deference to the academy than to other governmental units. Instead, judges must subject higher education administrators to the same skepticism and doubt as other constitutional actors. This Article has three parts. Part I examines how the Courts treat academe’s constitutional actors more deferentially than constitutional actors in other spheres. Specifically, it discusses different approaches concerning racial preferences, student religious groups’ freedom of association, and due process for students …


The Problem Of Intradistrict Inequality, Kristen E. Murray Jan 2018

The Problem Of Intradistrict Inequality, Kristen E. Murray

Belmont Law Review

American elementary and secondary school students have dramatically different educational experiences depending on the school in which they are enrolled. This raises an important question: where should we look to determine where any inequalities might lie? This Article discusses five different factors that contribute to inequalities within school districts. Part I addresses each of these in turn: school segregation; resource inequalities; gaps in private fundraising; school district secession; and the limitations of school choice. Taken together, these factors suggest that intradistrict inequalities create a complicated and difficult problem to solve. It is therefore imperative that if we are going to …


Searching For Balance With Student Free Speech: Campus Speech Zones, Institutional Authority, And Legislative Prerogatives, Neal H. Hutchens, Frank Fernandez Jan 2018

Searching For Balance With Student Free Speech: Campus Speech Zones, Institutional Authority, And Legislative Prerogatives, Neal H. Hutchens, Frank Fernandez

Belmont Law Review

In the essay, the authors examine the permissibility of student speech zones under the First Amendment. Related to this discussion, the essay also considers recent state legislative efforts to prohibit public colleges and universities from enforcing such campus speech zones. The authors are supportive of legislative measures related to speech zones, but several provisions in proposed state laws and model legislation go beyond this issue and would potentially undercut student free speech rights and unduly interfere with institutional autonomy to manage and respond to issues involving speech and expression on campus. Instead, legislators should exercise restraint when it comes to …


Katz-Calls: Application Of Fourth Amendment Protection To Police Use Of Smartphone Emergency Functionality, Ryan Russell Jan 2018

Katz-Calls: Application Of Fourth Amendment Protection To Police Use Of Smartphone Emergency Functionality, Ryan Russell

Belmont Law Review

In determining whether an officer’s use of the Emergency function of a phone is a search, it is important first to lay a foundation for why the Constitution provides protection against searches in the first place. Part I of this Note will provide a brief overview of why the Fourth Amendment was adopted, and what rights it is intended to protect. Next, it is impossible to know whether use of Emergency would qualify as a search unless we know how a search is defined. Part II of this Note will examine the tests that have developed over the years, namely …


Flying High In The Regulatory State: An Analysis Of State Regulatory Systems For The Distribution Of Medical Cannabis, Andrew Goldstein Jan 2018

Flying High In The Regulatory State: An Analysis Of State Regulatory Systems For The Distribution Of Medical Cannabis, Andrew Goldstein

Belmont Law Review

This Note examines a variety of factors common to existing state regulatory systems to identify the best ways to regulate the distribution of medical cannabis. These factors include: (1) the number and type of qualifying medical conditions, (2) patient access to medical cannabis through personal cultivation and dispensaries, (3) privileged health care professionals and recommendations of medical cannabis to patients, and (4) patient registration requirements and state reciprocity. In analyzing each factor, this Note discusses existing state systems that excel in relation to each factor and existing state systems that perform poorly in relation to each factor. Finally, this Note …


The Sequential Movement Challenge Of Higher Education Access, Jonathan D. Glater Jan 2018

The Sequential Movement Challenge Of Higher Education Access, Jonathan D. Glater

Belmont Law Review

Too often, discussion of how best to promote greater and more equitable access to higher education in the United States centers on a single set of challenges when in fact they are many, varied, and interrelated. There is the challenge of student diversity: the student body at the most elite institutions does not look like the population of the nation as a whole. There is the burden of cost: the price of higher education both deters potential students and burdens those who must borrow to enroll, whether they graduate or not. There are disturbing disparities in standardized test scores: the …


Private School Vouchers And The Failed Promise Of Osmosis, Margareth Etienne Jan 2018

Private School Vouchers And The Failed Promise Of Osmosis, Margareth Etienne

Belmont Law Review

Over the years, advocates for education reform have championed a range of strategies including accountability through high-stakes testing, incentives for students, teachers, small class sizes, parental involvement, school uniforms, technology in classrooms, extending the school year, curricular change, and so on. One recurring and consistent argument for school improvement and student achievement has been that students of lesser means do better in mixed settings or when grouped with students of higher means. This idea, that the rising tide lifts all boats, has been at the core, or at least figured as a central argument, in several social movements in education …


Promise Or Peril: Reframing Parental Rights In Special Education Through School Choice Reform Initiatives, Susan C. Bon Jan 2018

Promise Or Peril: Reframing Parental Rights In Special Education Through School Choice Reform Initiatives, Susan C. Bon

Belmont Law Review

While several court rulings have recognized parental rights over education to varying degrees, the emergence of a common public school agenda has led to an increasing establishment of barriers limiting opportunities for parents to exercise their rights and control over the upbringing of their children via school choice initiatives. Parental rights and the exercise of choice are further complicated and restricted for parents of students with disabilities. Although the right to an education is protected under the Individuals with Disabilities in Education Act (IDEA), parental choice is recast as parental participation in the educational decisions affecting children with disabilities. In …


Oral Argument: Transformation, Troubles, And Trends, Marshall L. Davidson Iii Jan 2018

Oral Argument: Transformation, Troubles, And Trends, Marshall L. Davidson Iii

Belmont Law Review

This article explores the dynamic transformation of oral argument from early in American history, its markedly changed significance relative to briefs, and where trends and innovative ideas, including some recently taking root in Tennessee, may take this enduring tradition in the future. To understand the transformation of oral argument and contemporary attitudes about it, one must be familiar with its origins and the crucial role it played in the decision-making process in England and in the formative years of the United States.


Metropolitan Nashville Board Of Public Education Panel Discussion, Sharon Gentry, Christiane Buggs, Will Pinkston, Mary Pierce Jan 2018

Metropolitan Nashville Board Of Public Education Panel Discussion, Sharon Gentry, Christiane Buggs, Will Pinkston, Mary Pierce

Belmont Law Review

Five Members of the Metropolitan Nashville Board of Public Education participate in a panel discussion on the current state of K-12 Education in Tennessee.


Hashing It Out: Blockchain As A Solution For Medicare Improper Payments, William J. Blackford Jan 2018

Hashing It Out: Blockchain As A Solution For Medicare Improper Payments, William J. Blackford

Belmont Law Review

Part I highlights the inadequacies and inefficiencies of our Medicare payment system, focusing on the initiatives currently in place and the susceptibilities that persist. Part II offers a broad overview of the development, importance, features, and collateral technologies surrounding blockchain. Part III posits that Congress and HHS, through its various subsidiary agencies, should work in tandem with private stakeholders to create and/or implement a blockchain-based infrastructure to facilitate federal healthcare payments and support future growth of quality-based initiatives. This Note concludes with a recommendation for future agency research focusing on the viability and cost efficiency of a blockchain solution.


#Iceoffourcampus: The Liability And Responsibility Of Colleges And Universities For The Educational Attainment Of Dreamers, David H.K. Nguyen Jan 2018

#Iceoffourcampus: The Liability And Responsibility Of Colleges And Universities For The Educational Attainment Of Dreamers, David H.K. Nguyen

Belmont Law Review

This law review article will: (1) examine the current state of affairs in educational attainment of undocumented students, (2) examine the federal and state policies that impact higher education access to undocumented students, including, but not limited to, state legislation, state action, institutional policies, and federal executive orders, and (3) provide a history of the sanctuary movement, an examination of various campus sanctuary policies, and an analysis of the legality of this debate. By understanding this policy maze and the lack of federal intervention for comprehensive immigration reform, this background forms the foundation to examine the liability and responsibility of …


Capitán América: The Impact Of Trips On The Cultural Trade Balance In Latin America, Laurann Johnson Kirschner Jan 2018

Capitán América: The Impact Of Trips On The Cultural Trade Balance In Latin America, Laurann Johnson Kirschner

Belmont Law Review

This Note will discuss the cultural implications of TRIPS-mandated copyright structures on developing countries in Latin America and suggest implementation of co-production schemes across the region which will capitalize on Latin American countries’ particular strengths in common language and cultural proximity. Part I will discuss the terms of TRIPS itself, and shed light on how it changed the landscape of trade in cultural goods around the world. In turn, Part II will demonstrate how TRIPS contributes to the homogenization of cultural goods consumption by making it increasingly expensive for developing countries to compete on the world market, thereby creating an …


Public Pension Reform And The Takings Clause, Michael B. Kent Jan 2017

Public Pension Reform And The Takings Clause, Michael B. Kent

Belmont Law Review

Of the many current issues facing state and local governments, perhaps one of the most pressing is public pension reform. According to the U.S. Census Bureau, there are nearly 4,000 public pension systems in the United States, the vast majority (3,742) of which are administered by local governments. As of 2014, these systems had more than 19,000,000 members and more than 9,000,000 beneficiaries receiving periodic payments. But many of these systems are in serious financial trouble, collectively facing unfunded liabilities that, by some estimates, equal approximately $4.7 trillion. In light of these shortfalls, many states have enacted a variety of …


Is There A Law Of Regional Planning?, Brian W. Ohm Jan 2017

Is There A Law Of Regional Planning?, Brian W. Ohm

Belmont Law Review

This Article examines the law through the lens of regional planning. Globally, the twenty-first century has been called “the urban century,” with more people living in urban areas than in rural areas. In the United States in particular, our urban areas are often not comprised of a single city. Rather, our urban areas are comprised of numerous local governments: cities, villages, towns, and counties. The modern metropolis connotes an agglomeration of adjacent and interconnected local governments (often cities) clustered around a major urban center (often an older central city). This Article will provide a brief overview of some of the …