Demystifying Nationwide Injunctions,
2019
Washington and Lee University School of Law
Demystifying Nationwide Injunctions, Alan M. Trammell
Scholarly Articles
The phenomenon of nationwide injunctions—when a single district court judge completely prevents the government from enforcing a statute, regulation, or policy—has spawned a vigorous debate. A tentative consensus has emerged that an injunction should benefit only the actual plaintiffs to a lawsuit and should not apply to persons who were not parties. These critics root their arguments in various constitutional and structural constraints on federal courts, including due process, judicial hierarchy, and inherent limits on “judicial power.” Demystifying Nationwide Injunctions shows why these arguments fail.
This Article offers one of the few defenses of nationwide injunctions and is grounded in …
Disaggregating Nationwide Injunctions,
2019
Florida State University College of Law
Disaggregating Nationwide Injunctions, Michael T. Morley
Scholarly Publications
Nationwide injunctions have become a focus of heated judicial, academic, and even public debate. Much of this analysis treats nationwide injunctions as a unitary concept, referring to a particular type of court order. In fact, the term may apply to five different categories of orders of national applicability, each of which raises very different constitutional, fairness, rule-based, structural, prudential, and other concerns.
This Article presents a taxonomy of the five types of nationwide injunctions and the proper judicial treatment of each. Rather than focusing on the geographic applicability and scope of a court order, injunctions should instead be categorized based …
Gains, Losses, And Judges: Framing And The Judiciary,
2019
Cornell Law School
Gains, Losses, And Judges: Framing And The Judiciary, Jeffrey J. Rachlinski, Andrew J. Wistrich
Notre Dame Law Review
Losses hurt more than foregone gains—an asymmetry that psychologists call “loss aversion.” Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people’s preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are so pervasive …
Judicial Education, Private Violence, And Community Action: A Case Study In Legal Participatory Action Research,
2019
University of Cincinnati College of Law
Judicial Education, Private Violence, And Community Action: A Case Study In Legal Participatory Action Research, Kristin (Brandser) Kalsem
Faculty Articles and Other Publications
In this Article, I present a case study of a legal PAR project involving judicial training on best practices in domestic violence cases. This judicial education project started over coffee and waffles, involved an award-winning documentary film Private Violence, and resulted in the training of more than 375 judges on best practices developed from two years of collaborative research conducted by a community action group. In 2014, I coauthored an article titled It's Critical: Legal Participatory Action Research with my colleague Emily Houh. In this piece, we introduced legal scholars to the field of PAR, including its origins, complementary relationship …
Second-Best Criminal Case,
2019
Wayne State University
Second-Best Criminal Case, William Ortman
Law Faculty Research Publications
No abstract provided.
Coding For Cultural Competency: Expanding Access To Justice With Technology,
2019
University of Tennessee College of Law
Coding For Cultural Competency: Expanding Access To Justice With Technology, Sherley E. Cruz
Tennessee Law Review
Innovations in legal technology are revolutionizing access to justice for individuals who previously had little or no ability to obtain legal assistance. This Article explores how the lack of culturally competent designs within legal technology negatively impacts diverse communities, thereby hindering the ability to expand access to justice. An examination of the underlying theories of access to justice and cultural competency illustrates why it is necessary for legal professionals and technology designers to incorporate culturally competent designs when developing legal technology. In light of ongoing changes in United States' demographics, and the heightened need to provide access to justice given …
Progress Is A Chameleon,
2019
University of Tennessee College of Law
Enhancing The Value Of Shareholder Voting Recommendations,
2019
University of Tennessee College of Law
Enhancing The Value Of Shareholder Voting Recommendations, Bernard S. Shafman
Tennessee Law Review
Investment advisers to mutual funds, exchange-traded funds, and separately managed accounts are typically delegated the authority to vote their clients' securities. When this delegation occurs, these investment advisers have a fiduciary duty to vote their proxies, typically the voting rights associated with a company's common stock, in the best interest of their clients. This duty creates the following corporate governance issue: How can these investment advisers become informed voters without requiring them to read massive amounts of information on the hundreds or thousands of companies they have invested in for the thousands, tens of thousands, or even hundreds of thousands …
Editorial Board,
2019
University of Tennessee College of Law
Should We Flip On Flippers: A Rational Approach To Providing Penalty Reductions To Criminal Informers,
2019
University of Tennessee College of Law
Should We Flip On Flippers: A Rational Approach To Providing Penalty Reductions To Criminal Informers, Mirko Bagaric, Lidia Xynas, Daniel Mccord
Tennessee Law Review
No abstract provided.
Regulation Of Encapsulated Placenta,
2019
University of Tennessee College of Law
Regulation Of Encapsulated Placenta, Greer Donley
Tennessee Law Review
The practice of placenta encapsulation is rapidly growing. It typically involves post-partum mothers consuming their placentas as pills in the months after childbirth. The perceived benefits include improved mood and energy, reduced bleeding and pain, and greater milk supply. But these effects are unproven, and consumption comes with health risks. The rise of this trend has sparked a vigorous debate in the recent medical literature, but this Article is the first to consider the legal implications of placenta encapsulation. This Article examines whether FDA should regulate encapsulated placenta, and if so, whether it should be regulated as a drug, supplement, …
Gonzaga's Ghosts,
2019
University of Tennessee College of Law
Gonzaga's Ghosts, Amanda B. Hurst
Tennessee Law Review
Pursuant to its sweeping Spending Power, Congress will spend several hundreds of billions of dollars funding federal-state spending programs this year, which states must utilize in accordance with Congress's specifications-not unlike a "contract" according to the Supreme Court. But what if a state does not toe the line Congress drew, i.e. the State "breaches" its promise? The Supreme Court opened a door in Maine v. Thiboutot, the genesis of the personal rights doctrine, to allow beneficiaries to use 42 U.S.C. § 1983 to challenge state officials' violation of spending legislation. But almost from the doctrine's inception, the Court has stressed …
Contents,
2019
University of Tennessee College of Law
Standing On The Shoulders Of Giants,
2019
University of Tennessee College of Law
Standing On The Shoulders Of Giants, Paula Schaefer
Tennessee Law Review
No abstract provided.
Fundraising: Bridging Title Ix Athletics Compliance Of The Equal Treatment Requirement And The Advancement Of Women Administrators In Intercollegiate Athletics,
2019
University of Tennessee College of Law
Fundraising: Bridging Title Ix Athletics Compliance Of The Equal Treatment Requirement And The Advancement Of Women Administrators In Intercollegiate Athletics, Dana Drew Shaw
Tennessee Law Review
No abstract provided.
Cotten V Wilson: Toward A New Approach In Negligence Cases Involving Suicide,
2019
University of Tennessee College of Law
Cotten V Wilson: Toward A New Approach In Negligence Cases Involving Suicide, Alex B. Long
Tennessee Law Review
No abstract provided.
Big Data Is Not Big Oil: The Role Of Analogy In The Law Of New Technologies,
2019
University of Tennessee College of Law
Big Data Is Not Big Oil: The Role Of Analogy In The Law Of New Technologies, Lauren Henry Scholz
Tennessee Law Review
No abstract provided.
Contents,
2019
University of Tennessee College of Law
A Rule 11 For Prosecutors,
2019
University of Tennessee College of Law
A Rule 11 For Prosecutors, Yuri R. Linetsky
Tennessee Law Review
This Article suggests a novel approach to allow victims of frivolous prosecutions to hold prosecutors accountable. Unique among American lawyers, prosecutors enjoy absolute immunity from civil suits alleging professional misconduct. In cases of frivolous prosecutions, where charges are dismissed by the judge or the defendants are acquitted, the former defendants are prevented from seeking damages. This is so despite former defendants often suffering significant consequences-from legal fees to loss of employment. Victims of frivolous prosecutions should be afforded a mechanism to seek redress against prosecutors who bring or maintain meritless actions.
By enacting a rule of criminal procedure that mirrors …
Uberizing Discrimination: Equal Employment And Gig Workers,
2019
University of Tennessee College of Law
Uberizing Discrimination: Equal Employment And Gig Workers, Minna J. Kotkin
Tennessee Law Review
What does the growth of online gig work mean for the future of employment discrimination law? While customers may not care about the sex and race of their Uber driver, elements of explicit and implicit bias can be expected when it comes to personal, home-based services like TaskRabbit or Care.com, or professional business services such as Catalant. In fact, the ubiquity of photographs and other personal data on these apps facilitates discrimination, as some empirical data suggests. Since predictions indicate that gig workers may soon account for 40% of the workforce, the goals of our employment discrimination laws-ensuring equal access …
