Notes Category
Winding Back Wayfair: Retaining the Physical Presence Rule for State Income Taxation
May. 31, 2019—Nathan Townsend | 72 Vand. L. Rev. 1391 (2019) | Winding-Back-Wayfair-Retaining-the-Physical-Presence-Rule-for-State-Income-Taxation In 2018, the U.S. Supreme Court decided South Dakota v. Wayfair, Inc., a case abrogating the physical presence rule from Quill Corp. v. North Dakota. The physical presence rule barred a state from forcing a retailer to collect sales taxes on the state’s behalf...
The Better Way to Stop Delay: Analyzing Speedy Sentencing Claims in the Wake of Betterman v. Montana
Apr. 30, 2019—Sarah R. Grimsdale | 72 Vand. L. Rev. 1031 (2019) | The-Better-Way-to-Stop-Delay-Analyzing-Speedy-Sentencing-Claims-in-the-Wake-of-Betterman-v.-Montana In Betterman v. Montana, the U.S. Supreme Court held that the Sixth Amendment’s speedy trial right terminates after a defendant’s conviction. In dicta, the Court suggested that a defendant might pursue a constitutional claim of undue sentencing delay under the Due Process Clause....
Sunny and Share: Balancing Airspace Entitlement Rights Between Solar Energy Adopters and Their Neighbors
Apr. 30, 2019—Joshua B. Landis | 72 Vand. L. Rev. 1075 (2019) | Sunny-and-Share-Balancing-Airspace-Entitlement-Rights-Between-Solar-Energy-Adopters-and-Their-Neighbors In an effort to ameliorate the effects of climate change, state and local governments have made increasingly large commitments to support solar energy adoption. For solar investments to be successful, however, solar adopters require unobstructed access to sunlight, which is directly at odds...
The Waiting Game: How States Can Solve the Organ-Donation Crisis
Mar. 30, 2019—The-Waiting-Game-How-States-Can-Solve-the-Organ-Donation-Crisis Thousands of patients in the United States live in limbo every day waiting for a lifesaving organ transplant, and the gap between the number of people who need a transplant and the number of available organs widens every year. Every state currently allows individuals to unilaterally indicate their intent to donate their organs upon...
Federal Regulation of Third-Party Litigation Finance
Mar. 30, 2019—Federal-Regulation-of-Third-Party-Litigation-Finance Third-party litigation finance has become a powerful and influential industry that will continue to play a significant role in shaping the legal landscape for years to come. The opportunities—and challenges—introduced by this burgeoning industry are legion, and with them has come a swath of disparate state regulations. These regimes have failed to balance important...
Penile Polygraphy: The Admissibility of Penile Plethysmography Results at Sentencing in Tennessee
Jan. 28, 2019—Penile-Polygraphy-The-Admissibility-of-Penile-Plethysmograph-Results-at-Sentencing-in-Tennessee State judges in Tennessee currently consider the results of penile plethysmograph (“PPG”) evaluations when sentencing convicted sex offenders. These highly intrusive physical tests purport to identify whether an offender’s arousal is considered “deviant” by measuring the change in penis size after viewing various stimuli. Because the results are usually buried in psychosexual evaluations that...
Extinguishing the Firewall: Addressing the Jurisdictional Challenges to Bringing Cyber Tort Suits Against Foreign Sovereigns
Jan. 28, 2019—Extinguishing-the-Firewall-Addressing-the-Jurisdictional-Challenges-to-Bringing-Cyber-Tort-Suits-Against-Foreign-Sovereigns The rapid advancement of technology has resulted in new forms of tortious activity. Increasingly, these cyber torts are perpetrated by foreign states. Notwithstanding other barriers to collecting damages for a cyber tort, a plaintiff suing for a foreign-state-perpetrated cyber tort must prove that the alleged tortious activity satisfies one of the Foreign Sovereign Immunities...
Common Sense: Rethinking the New Common Rule’s Weak Protections for Human Subjects
Oct. 19, 2018—Common-Sense-Rethinking-the-New-Common-Rule27s-Weak-Protections-for-Human-Subjects ABSTRACT: Since 1991, the Federal Policy for the Protection of Human Subjects, known as the “Common Rule,” has protected the identifiable private information of human subjects who participate in federally funded research initiatives. Although the research landscape has drastically changed since 1991, the Common Rule has remained mostly unchanged since its promulgation. In an...
Trafficked in Texas: Combatting the Sex-Trafficking Epidemic Through Prostitution Law and Sentencing Reform in the Lone Star State
Oct. 19, 2018—Trafficked-in-Texas-Combatting-the-Sex-Trafficking-Epidemic-Through-Prostitution-Law-and-Sentencing-Reform-in-the-Lone-Star-State ABSTRACT: American law has historically treated prostitution as a victimless crime, a moral trespass between two consenting individuals, rather than a potential act of violence, a product of fraud or coercion. However, growing awareness of the international sex-trafficking epidemic has brought long-settled prostitution law once more under the critical eye of academics and lawmakers...
Rethinking Conspiracy Jurisdiction in Light of Stream of Commerce and Effects-Based Jurisdictional Principles
May. 22, 2018—Rethinking-Conspiracy-Jurisdiction-in-Light-of-Stream-of-Commerce-and-Effects-Based-Jurisdictional-Principles ABSTRACT For decades, some courts have been willing to exercise personal jurisdiction over nonresident defendants based solely on the forum contacts of their coconspirators. This practice, termed “conspiracy jurisdiction,” has proven controversial among courts and commentators alike. On one hand, the actions of one member of a conspiracy are ordinarily attributable to other members...
Neuronal Testimonial: Brain-Computer Interfaces and the Law
May. 22, 2018—Neuronal-Testimonial-Brain-Computer-Interfaces-and-the-Law ABSTRACT Scientific researchers have developed a method of using brain-scanning technology to determine if patients in a coma-like condition, known as a “vegetative state,” are conscious despite their inability to communicate verbally or via motor actions. While in a brain scanner, patients “answer” yes-or-no questions by envisioning specific scenarios that activate different parts of...
A Taste of Their Own Medicine: Examining the Admissibility of Experts’ Prior Malpractice Under the Federal Rules of Evidence
Apr. 18, 2018—A-Taste-of-Their-Own-Medicine ABSTRACT Expert witnesses play an important role in medical malpractice cases by persuading juries to adopt a theory favorable to their party. Their credibility and competency influence the jury’s decision, so parties seek to discredit opposing experts through cross-examination about their own malpractice as a provider of medical care. This evidence suggests a propensity...
Combating the Enemy Within: Regulating Employee Misappropriation of Business Information
Apr. 18, 2018—Combating-the-Enemy-Within ABSTRACT Technological advancements vastly improve efficiency and productivity in the workplace. However, technology also brings with it the ability to transmit mass amounts of business information with ease. As technology continues to evolve and become increasingly prevalent in the modern workplace, the insider presents a considerable threat to employers. In fact, employers increasingly face...
Sink or Sell: Using Real Estate Purchase Options to Facilitate Coastal Retreat
Mar. 13, 2018—Sink-or-Sell-Using-Real-Estate-Purchase-Options-to-Facilitate-Coastal-Retreat ABSTRACT Despite the political contention surrounding climate change, scientists almost universally agree that sea levels are rising and will continue to do so. In light of this inevitability, commentators and policymakers have begun to recognize that retreat—the withdrawal of people and development from coastal areas—will become necessary, at least in certain areas. Even so,...
Invisible Bars: Adapting the Crime of False Imprisonment to Better Address Coercive Control and Domestic Violence in Tennessee
Mar. 13, 2018—Invisible-Bars-Adapting-The-Crime-of-False-Imprisonment-to-Better-Address-Coercive-Control-and-Domestic-Violence-in-Tennessee ABSTRACT On average, three or more women are murdered by their intimate partners in the United States every day. Despite the now well-known correlation between coercive control—the strategic use of oppressive behavior to control primarily female partners—and intimate partner homicide, most states continue to focus their criminal domestic violence laws solely on physical violence....
Signed, Sealed, Delivered—Not Yours: Why the Fair Labor Standards Act Offers a Framework for Regulating Gestational Surrogacy
Jan. 18, 2018—Signed, Sealed, Delivered ABSTRACT Over the past several decades, gestational surrogacy has emerged as a rapidly growing industry. Such growth has prompted an enormous amount of debate among scholars, human rights advocates, economists, and the media over a wide array of legal and ethical issues. This debate is perhaps most evident in the divergence of...