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Movement Lawyering For Pretrial Justice In Eastern Tennessee
Full text linkJudges in Tennessee regularly jail legally innocent people simply because those people cannot afford to pay money bail. Many of Tennessee’s citizens do not have access to healthcare, transportation, employment, or housing, which increases their chances of being arrested, being unable to afford money bail, and becoming further destabilized by pretrial detention. This socioeconomic context, combined with judges’ violations of federal law, make it difficult for advocates to protect indigent people’s pretrial liberty solely through legal tactics. Community organizers in Tennessee have, therefore, strategically combined grassroots organizing with legal tactics to advocate for automatic pretrial release. These organizers’ work demonstrates that movement lawyering in support of divest-invest strategies is necessary for creating sustainable decarceral change
The Pamela Anderson Exception: How the Public Figure Doctrine Makes Involuntary Pornography a Subject of Public Concern in Congress’s Revenge Porn Statute
Full text linkCongress’s chosen remedy for the proliferation of online revenge porn has a design flaw. The Violence Against Women Reauthorization Act, codified in 15 U.S.C. § 6851, provides a civil right, enforceable in federal court, to victims of nonconsensual pornography. However, exceptions for matters within the “public concern,” written into the statute with the First Amendment in mind, weaken the force of the Act and threaten to make its proscriptions a nullity. This Note calls on Congress to narrow the public concern exception in the Violence Against Women Reauthorization Act to include only matters of political significance. Such an amendment will honor the First Amendment’s guaranty of free speech and ensure that evolving notions of newsworthiness do not work to burden those seeking relief under the Act
Justice Citizenship
No full textIn recent years, the topic of democracy has seen a resurgence-perhaps due in part to a recognition of its heightened global instability. Yet, in these pervasive discussions regarding democracy and its role with respect to governance, relatively little attention has been paid to the courts, particularly at the state and local levels where most people are likely to interact with them. In a time when the courts\u27 authority is being questioned, it may be helpful to emphasize that courts, like all democratic institutions, are of the people, by the people, [and] for the people. In relation to the other branches of government, the courts often serve a countermajoritarian role-but as part of our broader democratic system, access to and engagement with the courts should still be guided by democratic values. As Allan Hutchinson has observed: Democracy . . . is one of the most frequently mentioned, yet least specified ideas in the political lexicon. However they interpret the term, access to justice scholars invoking the concept of democracy seem to have focused primarily on how courts and adjacent service providers support or advance the greater democratic project of governance by the people
The Moral Boundary of the Firm
No full textScholars have wrestled with the legal boundary of the firm for generations. The legal boundary limits the extent to which a firm can be held liable for the torts, contractual, and regulatory obligations of other corporations. The existence of a legal boundary suggests that the law limits incentives for firms to control the climate and other environmental harms caused by their corporate suppliers. Yet recent research demonstrates that many of the largest corporations impose environmental requirements on their suppliers that exceed the legal requirements imposed on these suppliers. This suggests that some factors other than the threat of liability may be encouraging corporations to try to reduce the environmental harm caused by their suppliers. In this Essay, we refer to the attributions of responsibility to firms by customers, employees, and other stakeholders as imposing a “moral boundary” on corporate action that may be more constraining than the legal boundary. Drawing on three surveys with 2,400 respondents, this Essay evaluates the extent to which the public may influence this moral boundary of the firm—whether potential employees, retail customers, community members, and other stakeholders hold firms morally accountable for the environmental harms of their suppliers even if they are not legally accountable. The survey results suggest that they do. These stakeholders assign moral blame to corporate buyers for the emissions of their first- and second-tier suppliers, although the moral boundary is nuanced: The assignment of blame has limited effects on consumer behavioral intentions, increases with the control the buyer exercises over the supplier, and decreases from tier one to tier two suppliers. The Essay concludes that corporate managers may be protecting the reputation-driven economic interests of their firms when they adopt environmental supply chain requirements, and it suggests the need for research on whether the moral boundary interacts with the legal boundary in ways that lead to an efficient balance between the legal boundary’s incentives to take financial risks, externalize harms, and exercise limited control over third parties, and the moral boundary’s incentives to be cautious about financial risks, internalize harms, and exercise a greater degree of control over third parties
DExit Stage West: You Can Incorporate Anytime You Like, but Can You Ever Leave?
No full textA company has the freedom to choose which state’s laws will govern its internal affairs when first deciding where to incorporate. Once established and operating under the laws of a particular jurisdiction, the corporation’s shareholders receive a set of rights they opted into by purchasing shares. Many Fortune 500 companies have chosen Delaware as their home due to its robust body of corporate law. Recently, however, some fiduciaries at high-profile companies have grown frustrated with the shareholder-friendly trend in Delaware courts—one that makes it easier for shareholders to sue. In response, western states—particularly Nevada and Texas—have gained the attention of those peeved fiduciaries by offering legal frameworks that provide them greater litigation protection. Given the substantial financial benefits that states derive from company incorporations, both Delaware and states like Nevada and Texas have much at stake. When a company decides to reincorporate in another state, however, an important question arises: Should shareholders be compensated for changes to their rights under the state of reincorporation’s laws? The longstanding tension between fiduciary business judgment and shareholder rights has been a central issue in Delaware corporate law. Reincorporation further complicates the balancing of these interests by extending beyond Delaware’s borders as the corporation has already decided to pack their bags to head West. Delaware courts are no longer just analyzing the rights under Delaware’s own law and precedent; they must now compare those rights to those afforded by another state. This Note explores that issue by taking a deep dive into TripAdvisor’s decision to reincorporate in Nevada. While the Delaware Supreme Court declined to compensate TripAdvisor shareholders in Maffei v. Palkon, this Note proposes a balancing test for the Delaware courts to apply—one that ensures shareholder rights are being protected, while allowing corporations to make an exit when they see fit
Torts Mismatches
No full textIn torts, the damages required for full compensation of the victim and optimal deterrence of the injurer are normally the same. This correspondence is perfectly natural: If the injurer fully compensates the victim, then the injurer will completely internalize his externalities. Yet sometimes full compensation and optimal deterrence do not align. A well-known example is punitive damages, in which victims are purposely overcompensated to optimally deter injurers. What the literature has failed to acknowledge is that these torts mismatcheswhen full compensation of victims and optimal deterrence of injurers are incompatibleoccur elsewhere and explain controversial and unresolved doctrinal areas of torts. When these mismatches occur, often the result is deep inconsistency on two levels. First, courts of different jurisdictions will disagree, leading to doctrinal ambiguities. Second, within a jurisdiction, tort law will at times and without explanation prioritize compensation while it will at other times prioritize deterrence. For example, the U.S. Supreme Court has prioritized compensation when determining the implications of tax on tort damages but has prioritized deterrence when crediting third-party tort settlements, all without any acknowledgment of the incoherence. This Article offers a detailed exploration of torts mismatches. Descriptively, we show that such mismatches explain important areas of doctrinal controversy: for example, why courts persistently disagree on how tort damages should account for tax, depreciation, and the presence of third-party settlements. We identify four analytically distinct types of mismatches. We then investigate the implications of our account for courts and tort scholars. For courts, compensation-deterrence battles raise deep concerns about consistency, the rule of law, and judicial transparency. Because they involve a conflict between two well-accepted, neutral principles—compensation and deterrence— courts become effectively unconstrained in such contexts, allowing ideological and other biases to influence decisionmaking. For tort scholars, these mismatches provide a more productive focal point beyond the well-worn debates about consequentialism versus corrective justice. Finally, the Article discusses some of the root causes of torts mismatches and investigates solutions for eliminating or ameliorating them
Roll for Lawsuit: Are Actual-Play Series Copyright Ingringers?
Full text linkDungeons and Dragons is a highly popular Tabletop Role-Playing Game designed by Gary Gygax and Dave Arneson in 1973. The game’s emphasis on narrative storytelling makes it an interesting subject for copyright analysis. When a group plays Dungeons and Dragons (D&D) for an audience, using copyrighted materials from Dungeons and Dragons’s publisher, Wizards of the Coast, there is an open question about whether the players infringe on Wizards of the Coast’s exclusive rights under § 106 of the Copyright Act of 1976. This issue is further complicated by Wizards of the Coast’s unique approach to licensing.This Note examines how Dungeons and Dragons performances implicate Wizards of the Coast’s exclusive rights under the Copyright Act. After establishing that groups playing D&D publicly are likely liable for infringement of the reproduction, derivative work, and public performance rights of Wizards of the Coast, a statutory solution is proposed based on the Ninth Circuit’s holding in Allen v. Academic Games League of America, Inc