Legal Realism And Legal Reality,
2021
University of Tennessee College of Law
Legal Realism And Legal Reality, Matthew X. Etchemendy
Tennessee Law Review
This Article critically reexamines the relationship between Legal Orthodoxy and American Legal Realism. Legal Orthodoxy is a familiar jurisprudential perspective according to which judges do not make law, the law is complete or gapless, and the answers to legal questions are determinable through autonomous inquiry. Legal Orthodoxy featured prominently in the legal thought of Christopher Columbus Langdell and Joseph Henry Beale, and the Realist critique of the Langdellian conception of legal science and education is widely viewed as a decisive refutation of Legal Orthodoxy.
Contrary to this conventional wisdom, I argue that the Realist critique of Langdellianism only justifies a …
A Socially Beneficial False Claims Act?,
2021
University of Tennessee College of Law
A Socially Beneficial False Claims Act?, Elissa Philip Gentry
Tennessee Law Review
No abstract provided.
Editorial Board,
2021
University of Tennessee College of Law
The Modest Impact Of The Modern Confrontation Clause,
2021
University of Tennessee College of Law
The Modest Impact Of The Modern Confrontation Clause, Jeffrey Bellin, Diana Bibb
Tennessee Law Review
The Sixth Amendment's Confrontation Clause grants criminal defendants the right "to be confronted with the witnesses against" them. A strict reading of this text would transform the criminal justice landscape by prohibiting the prosecution's use of hearsay at trial. But until recently, the Supreme Court's interpretation of the Clause was closer to the opposite. By tying the confrontation right to traditional hearsay exceptions, the Court's longstanding precedents granted prosecutors broad freedom to use out-of-court statements to convict criminal defendants.
The Supreme Court's 2004 decision in Crawford v. Washington was supposed to change all that. By severing the link between the …
Contents,
2021
University of Tennessee College of Law
Avoiding The Great Divide: Assuring Court Technology Lightens The Load Of Low-Income Litigants Post-Covid-19,
2021
University of Tennessee College of Law
Avoiding The Great Divide: Assuring Court Technology Lightens The Load Of Low-Income Litigants Post-Covid-19, Katherine L.W. Norton
Tennessee Law Review
No abstract provided.
In Defense Of A Liberal Choice-Based Approach To Residential Segregation,
2021
University of Tennessee College of Law
In Defense Of A Liberal Choice-Based Approach To Residential Segregation, W.C. Bunting
Tennessee Law Review
This Article argues that not all forms of residential segregation are alike. Certain patterns of residential segregation can be distinguished along two key dimensions: (1) voluntariness; and (2) net social impact. Voluntary residential segregation is largely incompatible with outcome-based policies designed to promote residential integration. This Article claims that the existence of voluntary spatial clustering implies that the government must adopt an ex ante choice-based approach to residential integration that seeks to protect and enable freedom of choice in housing rather than an ex post outcome-based approach that seeks to implement and maintain specific patterns of residential segregation. The central …
A National Court For National Relief: Centralizing Requests For Nationwide Injunctions In The D.C. Circuit,
2021
University of Tennessee College of Law
A National Court For National Relief: Centralizing Requests For Nationwide Injunctions In The D.C. Circuit, Ryan Kirk
Tennessee Law Review
No abstract provided.
The Economic And Efficiency Benefits Of Expanding The § 25d Investment Tax Credit,
2021
University of Tennessee College of Law
The Economic And Efficiency Benefits Of Expanding The § 25d Investment Tax Credit, Kelsey Morgan
Tennessee Law Review
No abstract provided.
Property Rights And Involuntary Contracting,
2021
University of Tennessee College of Law
Property Rights And Involuntary Contracting, Taorui Guan
Tennessee Law Review
No abstract provided.
Redesigning Restorative Justice For Criminal Justice Reform,
2021
University of Tennessee College of Law
Redesigning Restorative Justice For Criminal Justice Reform, Matthew D. Kim
Tennessee Law Review
Considering the racial disparities in the criminal justice system and the pressing need for reform, this article presents the optimal design for restorative justice that is capable of drawing the necessary public support to transform the criminal justice system. Restorative justice is a growing alternative to the criminal justice system designed to allow offenders, victims, and members of the community resolve crimes without resorting to the criminal justice system. Public support for restorative justice programs is vital to their success, and many programs fail because of inconsistent public support. As such, proponents of restorative justice emphasize the need to "start …
Reconciling Legal And Technical Approaches To Algorithmic Bias,
2021
University of Tennessee College of Law
Reconciling Legal And Technical Approaches To Algorithmic Bias, Alice Xiang
Tennessee Law Review
In recent years, there has been a proliferation of papers in the algorithmic fairness literature proposing various technical definitions of algorithmic bias and methods to mitigate bias. Whether these algorithmic bias mitigation methods would be permissible from a legal perspective is a complex but increasingly pressing question at a time when there are growing concerns about the potential for algorithmic decision-making to exacerbate societal inequities. In particular, there is a tension around the use of protected class variables: most algorithmic bias mitigation techniques utilize these variables or proxies, but anti-discrimination doctrine has a strong preference for decisions that are blind …
Practical Abolition: Universal Representation As An Alternative To Immigration Detention,
2021
University of Tennessee College of Law
Practical Abolition: Universal Representation As An Alternative To Immigration Detention, Matthew Boaz
Tennessee Law Review
No abstract provided.
A Reexamination Of The Parens Patriae Power,
2021
University of Tennessee College of Law
A Reexamination Of The Parens Patriae Power, Esther K. Hong
Tennessee Law Review
Juvenile law scholars are coalescing around the idea that the originating theory of the juvenile system-the theory of the state's parens patriae power-is a largely obsolete relic of the past. This theory holds that when children commit offenses or crimes, the state as a super-parent should respond in a manner that cares, treats, and advances the best interest of the youth. Rather than live up to its ideals, however, these benevolent aims often masked abuse and limited minors' constitutional rights. The new consensus in current juvenile law scholarship is that juvenile law policy and advocacy ought to rely on a …
Joking, Exaggerating Or Contracting?,
2021
University of Tennessee College of Law
Joking, Exaggerating Or Contracting?, William A. Drennan
Tennessee Law Review
We love the funny, and that's no exaggeration. In a joke, a duck is the funniest animal, you'll get more laughs in a red room than a blue room, 103 characters is the optimal length for a joke, and we know all this statistically because scholarly researchers often study humor. Litigators, courts, and commentators also focus on the funny when deciding whether promissory language created a binding contract. They frequently debate and decide enforceability based on whether a party was joking.
This Article asserts, for the first time, that in many of these cases the focus should be on whether …
The New Due Process: Fairness In A Fee-Driven State,
2021
University of Tennessee College of Law
The New Due Process: Fairness In A Fee-Driven State, Glenn H. Reynolds, Penny J. White
Tennessee Law Review
No abstract provided.
The Simultaneity Puzzle: Lawyers Working At Multiple Law Firms,
2021
University of Tennessee College of Law
The Simultaneity Puzzle: Lawyers Working At Multiple Law Firms, Paul R. Tremblay
Tennessee Law Review
No abstract provided.
Annual Index Volume 88,
2021
University of Tennessee College of Law
Covid's Constitutional Conundrum: Assessing Individual Rights In Public Health Emergencies,
2021
University of Tennessee College of Law
Covid's Constitutional Conundrum: Assessing Individual Rights In Public Health Emergencies, James G. Hodge Jr., Jennifer L. Piatt, Emily Carey, Hanna N. Reinke
Tennessee Law Review
Considerable legal challenges alleging infringements of constitutional rights have arisen against governments imposing social distancing or other restrictive measures to quell the COVID-19 pandemic. Courts assess these claims largely under two approaches. Consistent with constitutional re-balancing, judges weigh the application of rights against governments' compelling interests to protect public health and safety in emergencies. Alternatively, a minority of courts temporarily set aside existing rights to effectuate emergency responses. Both approaches insufficiently account for the flexible nature of rights and freedoms in exigencies pursuant to the Constitution's cohesive design. In public health emergencies, courts should engage in guided assessments focused on …
Becoming Global Lawyers? A Comparative Study Of Civic Professionalism,
2021
University of Denver
Becoming Global Lawyers? A Comparative Study Of Civic Professionalism, John Bliss
Sturm College of Law: Faculty Scholarship
Through their professional education and training, new lawyers are generally encouraged to adopt a civic vision of professional identity. This article explores convergences and diverges in how new lawyers entering an increasingly globalized legal profession conceive of their civic roles in different national contexts. In particular, I examine corporate lawyers-in-training in the U.S. and China, drawing on interviews and a cross-cultural identity mapping method to compare their accounts of the lived experiences of civic professionalism. I find that professional identity formation in the U.S. sample is largely marked by role distancing and a sense of constrained public-interest expression. In contrast, …
