Tennessee law review最新文献

{"title":"The New Digital Wild West: Regulating the Explosion of Initial Coin Offerings","authors":"Ii Randolph Robinson","doi":"10.2139/SSRN.3087541","DOIUrl":"https://doi.org/10.2139/SSRN.3087541","url":null,"abstract":"In less than a calendar year, initial coin offerings or “ICOs” have become the fastest growing capital market in the world. In 2016, an entity called The DAO raised $160 million by selling crypto-tokens to over 15,000 individual purchasers around the globe. This massive fund raise would give rise to an entirely new capital ecosystem. In 2017, initial coin offerings would explode, raising a collective $3.5 billion in just the first three quarters of the year. All of this was done without a single registration being filed with the SEC, and many of these initial coin offerings — including several $100 million raises — were based on little more than a white paper and few lines of sample code. Welcome to the new Digital Wild West. With the seemingly overnight success of this new funding mechanism, there is little if any legal scholarship addressing initial coin offerings and how, or if, such offerings should be regulated. This article provides a non-technical legal audience with a foundational understanding of how the blockchain works, and the role initial coin offerings play in this new economic ecosystem. The overarching thesis of the article is that our current securities law framework, a framework that dates to the days of the great depression, is ill-equipped to handle this new world of decentralized, global, pseudonymous fund raises on public blockchains. Instead, governmental regulators should be working with core development teams to build a regulatory framework that integrates investor protections directly into the computer code governing these systems. By embracing “code as law,” both regulators and core development teams can protect the innovation being funded by initial coin offerings, while at the same time injecting some much needed investor protections into this new ecosystem. This article begins with an introduction to the coming decentralized world, including an overview of both public blockchain technology as well the Ethereum platform, the primary public blockchain upon which initial coin offerings are being deployed. Central to this introduction is an explanation of how the decentralization and disintermediation brought by the blockchain has the potential to dramatically reshape our economic and social systems. Next, the article explores the recent explosion of initial coin offerings, discussing how these offerings are structured, and how this new funding mechanism, if developed properly, has the promise of democratizing opportunities for economic innovation. The article then examines the SEC’s early statements on initial coin offerings to illustrate the potential problems with applying a dated legal framework to this new technology. Finally, the article concludes that the traditional securities law framework is ill suited for the coming decentralized world because the SEC’s enforcement power over global blockchain platforms is limited. Recognizing that external legal frameworks cannot be forced upon public blockchain platforms, th","PeriodicalId":82894,"journal":{"name":"Tennessee law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3087541","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44849949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Persistence of the Confederate Narrative","authors":"P. Davis, A. François, C. Starger","doi":"10.2139/SSRN.2658339","DOIUrl":"https://doi.org/10.2139/SSRN.2658339","url":null,"abstract":"Ever since the United States was reconstituted after the Civil War, a Confederate narrative of states’ rights has undermined the Reconstruction Amendments’ design for the protection of civil rights. The Confederate narrative’s diminishment of civil rights has been regularly challenged, but it stubbornly persists. Today the narrative survives in imprecise and unquestioning odes to state sovereignty. That appreciation of the doctrines of federalism and separation of powers should govern adjudication of the Constitution’s meaning is unarguable. That it should preclude national responsibility for the protection of human rights is, however, unacceptable. We analyze the relationship, over time, between assertions of civil rights and calls for the protection of local autonomy and control. This analysis reveals a troubling sequence: The Confederate narrative was shamefully intertwined with the defense of American chattel slavery. It survived profound challenges raised by post-Reconstruction civil rights claimants, and by mid-Twentieth century civil rights movements, and it reemerges regularly to pose questionable but unanswered challenges to calls for national protection of civil rights. Our close examination of the Confederate narrative’s jurisprudential effects exposes an urgent need to address the consequential but under-recognized tension between human and civil rights in the United States on the one hand and local autonomy on the other.","PeriodicalId":82894,"journal":{"name":"Tennessee law review","volume":"18 1","pages":"301"},"PeriodicalIF":0.0,"publicationDate":"2016-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2658339","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68241564","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Rules of Maternity","authors":"Dara E. Purvis","doi":"10.2139/SSRN.2660340","DOIUrl":"https://doi.org/10.2139/SSRN.2660340","url":null,"abstract":"This article examines a diverse body of laws and regulations speaking to reproductive rights, healthcare, criminal punishment of drug use, termination of parental rights, and more in order to unearth the rules of maternity: guidance provided both obliquely and explicitly by the law’s coercive power telling women both how and who should mother. Rule 1 begins in pregnancy, with the message that “your body is your child’s vessel.” Every choice that a pregnant woman makes becomes a source of potential harm to her child, and thus of potential punishment through both civil and criminal law. Rule 2 explains one way women should attempt to avoid such liability, by following the maxim that “doctor knows best.” To question medical authority or have preferences other than following doctor’s orders is to needlessly risk the health of a pregnancy or a child, and is evidence of bad mothering. After the child’s birth, the mother remains responsible for the people who enter a child’s life, leading to rule 3, “the buck stops with you.” Rule 4 provides examples of the tightropes that mothers must walk: be nurturing, but not too nurturing. Breastfeed, but not for too long. Be protective, but not overprotective. “Damned if you do, damned if you don’t.” Finally, the rules of maternity create an aspirational maternity, one that excludes women deemed undesirable as mothers, because of class, race, past actions, and so on. Rule 5 specifies that “only some women need apply” for motherhood; women who have already been judged as bad mothers should not be legally permitted to reproduce.","PeriodicalId":82894,"journal":{"name":"Tennessee law review","volume":"84 1","pages":"367"},"PeriodicalIF":0.0,"publicationDate":"2015-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68243822","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ordering Proof: Beyond Adversarial and Inquisitorial Trial Structures","authors":"M. Spottswood","doi":"10.2139/SSRN.2573911","DOIUrl":"https://doi.org/10.2139/SSRN.2573911","url":null,"abstract":"In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory, rather than undermines it. These two psychological mechanisms will often combine to create a strong “primacy effect,” in which the party who goes first gains a subtle but significant advantage over the opposing party. In this article, I propose a new method of ordering proof, designed to minimize the inaccuracy or unfairness that can arise due to primacy effects. A neutral third person, rather than the parties, would have the responsibility to prepare an opening “statement of the dispute,” which would take the place of partisan opening statements. In lieu of separate, partisan cases-in-chief, this neutral third party would also decide the order in which witnesses testify, balancing considerations of clarity, efficiency, and neutrality between the parties. This proposed ordering would, however, be subject to variations by agreement among the parties. In a jury trial, the presiding judge could perform this function, while in non-jury trials, a magistrate judge or an appointed master would do so. After exploring the reasons why this new mode of ordering proof would be likely to improve the fairness and accuracy of our system without excessive cost or inconvenience, I propose a policy experiment, in which the proposed method is tested in a random selection of jurisdictions, so that its impacts on outcomes, costs, and litigant satisfaction can be measured.","PeriodicalId":82894,"journal":{"name":"Tennessee law review","volume":"83 1","pages":"291"},"PeriodicalIF":0.0,"publicationDate":"2015-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68209559","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial Doctrine as Risk Regulation","authors":"Brannon P. Denning, Michael B. Kent","doi":"10.2139/SSRN.2401704","DOIUrl":"https://doi.org/10.2139/SSRN.2401704","url":null,"abstract":"Much of the literature on risk regulation concerns “first-order” risks — e.g., those addressed by environmental law or workplace safety rules. But scholars recently have suggested that risk regulation can provide a helpful framework for thinking about “second-order,” or political, risks arising from allocations of power and institutional design. Although a few commentators have utilized this perspective to suggest connections between risk regulation and particular areas of constitutional law, in this essay, we take a broader view. Building on the existing literature, we argue that the selection of constitutional decision rules is a judicial effort to regulate the political risk that government officials will violate constitutional principles. After making the case that judicial doctrinal formation is helpfully viewed as a species of political risk regulation, we discuss some implications of this risk regulation model and pose some questions for future research. We conclude that the risk regulation model reinforces the notion that the formation of doctrine is a temporally extended process, rather than a one-time event, and it provides a metric by which that doctrine can be evaluated. Additionally, the risk regulation model helps explain some of the more commonly critiqued features of constitutional law. Finally, the risk regulation model raises important questions that merit further investigation: (1) Should we trust judicial perceptions of and responses to political risk? (2) What influences risk assessment among judges, and are those influences (and resulting assessments) normatively defensible? (3) What connection, if any, exists between judicial risk assessment and the myriad doctrinal formulae employed by the Supreme Court?","PeriodicalId":82894,"journal":{"name":"Tennessee law review","volume":"82 1","pages":"405"},"PeriodicalIF":0.0,"publicationDate":"2014-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68182568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Aligning Law and Forum: The Home Court Advantage","authors":"Verity Winship","doi":"10.2139/SSRN.2263288","DOIUrl":"https://doi.org/10.2139/SSRN.2263288","url":null,"abstract":"When courts and legislatures choose where to resolve a dispute, they often must consider whether questions of law should be decided in the “home” court. When should, for instance, Delaware state courts decide questions of Delaware state law? The choice between the home forum and others is particularly stark in corporate law, where out-of-state courts must often apply the law of the state of incorporation. Litigation over corporate deals increasingly takes place in multiple, competing jurisdictions, presenting a clear choice between resolution in the home court or out of state. Beyond corporate law, the question arises any time legislatures must decide whether jurisdiction is exclusive, or courts must determine whether to stay a case or refer a question by way of certification, abstention, primary jurisdiction, or other sorting mechanisms. All of these instances raise the same normative question: When should law be decided in the home forum? In response, scholars and courts have pointed to vague notions of comity or focused on a single legal context. In contrast, this Article develops a robust theoretical account that crosses legal areas. It analyzes the tension in the U.S. legal landscape between doctrines that link law and forum (for instance, exclusive jurisdiction) and those that affirmatively separate them (for instance, diversity jurisdiction). It identifies two main functions of home court decisions: the lawmaking function derived from their unique power to bind, and the distinct repeat-player relationship that the home forum has with the body of law, which supports a claim to expertise. Finally, the Article uses these functions as the basis for an interest-balancing approach to determining when law should be decided at home.","PeriodicalId":82894,"journal":{"name":"Tennessee law review","volume":"81 1","pages":"1-53"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68042251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization","authors":"michal buchhandler-raphael","doi":"10.2139/SSRN.2128943","DOIUrl":"https://doi.org/10.2139/SSRN.2128943","url":null,"abstract":"The American criminal justice system is under tremendous pressures, increasingly collapsing under its heavy weight, thus requiring inevitable change. One notable feature responsible for this broken system is over-criminalization: the scope of criminal law is constantly expanding, making individuals liable to conviction and punishment for an ever-wider range of behaviors. One area where over-criminalization is most notable concerns victimless crimes, namely, individuals who engage in consensual conducts which inflict only harm on themselves but not on third parties, such as prostitution, pornography, sadomasochism, gambling, and most notably, drug crimes. Despite increasing scholarly critique of the continued criminalization of these behaviors, particularly drug offenses, significant limits on the scope of victimless crimes have not yet been adopted. Two features characterizing criminal law account for this: first, in contrast with criminal procedure, constitutional law has not placed any significant limits on substantive criminal law, and second, there is no coherent theory of criminalization that sets clear boundaries between criminal and non-criminal behaviors. This article proposes a constitutional constraint to limit criminalization of victimless crimes, and particularly to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs.\" To accomplish this goal, the article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law. The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity on the other. However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where they directly clash. The article proposes guidelines for balancing these contrasting interests and then applies them to drug crimes, illustrating that adopting such guidelines would result in constraining the scope of substantive criminal law.","PeriodicalId":82894,"journal":{"name":"Tennessee law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67930274","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"We Reserve the Right to Refuse Service to Anyone","authors":"Jennifer S. Hendricks","doi":"10.2139/SSRN.1135684","DOIUrl":"https://doi.org/10.2139/SSRN.1135684","url":null,"abstract":"This essay is based on remarks at the 2008 teaching conference of the Society of American Law Teachers, on the theme Teaching for Social Change When You're Not Preaching to the Choir. It reflects on my experience as a liberal/progressive teaching constitutional law in a conservative southern state. It also explores the importance of not just training students in the skills of a junior lawyer but also preparing them for their long-term obligations as citizens and members of the bar.","PeriodicalId":82894,"journal":{"name":"Tennessee law review","volume":"76 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2008-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68145940","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Still stuck in the cuckoo's nest: why do courts continue to rely on antiquated mental illness research?","authors":"Joanmarie Ilaria Davoli","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82894,"journal":{"name":"Tennessee law review","volume":"69 4","pages":"987-1050"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"40892043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The free exercise rights of pregnant women who refuse medical treatment.","authors":"April L Cherry","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82894,"journal":{"name":"Tennessee law review","volume":"69 3","pages":"563-622"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24692858","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}