Fall 2008 Course Descriptions

Antitrust
Issues in the Law: Juvenile Rights and Re-Entry Practicum (2)

Over the last two decades, nearly every state has enhanced its laws allowing transfer of juveniles to adult courts for criminal prosecution. As a result, nearly 200,000 children face adult sentence each year. In Tennessee, over 1,100 inmates are currently imprisoned for alleged wrongdoings of their youth, some serving terms of life without parole - condemned to die behind bars. Advocates, experts and policy makers have begun to question such practices, calling for changes in the law, procedure, and policy to remedy this situation.

In this hands-on, practicum we will serve as a Task Force to examine the law and practice of juvenile transfer in Tennessee. As a group we will consider ways to seek to reform Tennessee transfer practices and act as advocates for youths and others affected by state transfer policies. Possible avenues of advocacy may include individual client representation in parole and other proceedings, lobbying, legislative drafting, community organizing and issuance of white papers and other reports. Given the innovative nature and limited enrollment of this course, registration will be permitted by application only.

Commercial Law
Prof. Plank

Substantive Subject Matter: Uniform Commercial Code (the “UCC”).

Comprehensive coverage of article 9 of the UCC, Secured transactions. Creation and perfection of security interests in personal property to secure payment of debts and the sale of payment obligations; continuation of security interests; priority among security interests and other interests; realizing on collateral in case of default; brief introduction (less than 1 week) to those elements of the Bankruptcy Code that affect secured creditors. 75-80% of the course.

Basics of negotiable instruments (like checks and notes) under Article 3 of the UCC. Elements of a negotiable instrument; transfer of negotiable instruments; liability of parties to a negotiable instrument; qualification as and rights of a holder in due course. 20-25% of the course.

The policy reasons behind the statutes, the incentives that various rules create, methods of avoiding uncertainties in the statutes, and the business practices and background behind the transactions.

Skills Development: Statutory analysis and interpretation.

Methodology: Analysis by students in class of short problems (around 145, with an average of 2-3 subparts) applying the UCC and (in a few instances, other statutes); analysis of few cases (usually only 2) interpreting Article 9.

Text and Materials:

Steven L. Harris and Charles W. Mooney, Jr., Security Interests in Personal Property (4th ed. 2006).

A copy of the Uniform Commercial Code. This appears in the latest version of Douglas G. Baird et al., Commercial and Debtor-Creditor Law: Selected Statutes. You may use an earlier edition, but you may have to pay attention to the differences in the editions.

A supplement on negotiable instruments prepared by me.

Class Preparation and Course Administration:

To accommodate a few anticipated class cancellations, classes run 60 minutes instead of 50 minutes, and there will be nine fewer classes, that is, 47 classes instead of 56 classes.

Preparation for class and attendance are important to obtain the benefits of the course and also to enjoy the course.

The grade is based on a three-hour, open book, comprehensive essay exam.

Consumer Protection Law Seminar (2)

This seminar surveys some of the common law and federal and state statutory and regulatory materials affecting consumers as buyers, borrowers, and lessees. We will look at: (1) the law of advertising and marketing; (2) consumer credit regulation; (3) consumer warranty law; and (4) consumer privacy issues. This area of law is continually confronted with new issues and concerns, ingenious ways to defraud consumers, and corresponding policy responses.

Credit: Origination and Collection; Advanced and Applied Commercial Law (3)
Prof. Chobot

What can happen to an extension of credit during its lifecycle? There can be an inability or unwillingness of the obligor to pay, defenses and counterclaims can arise, or the obligor can become subject to a bankruptcy proceeding. How does a commercial lawyer deal with these problems and impediments in documenting and negotiating these extensions of credit?

Using a discussion format, this course will consider three of the most common extensions of credit to businesses in the United States: installment sales of goods, secured loans, and equipment leases. The course will explore the fundamental characteristics of these transactions, develop an understanding of the Uniform Commercial Code and Bankruptcy Code implications and impacts, and consider and discuss all of the major impediments to collection that can arise. Using this information, we will explore the parameters for the documentation and negotiation of these transactions to mitigate and manage these credit risks.

Student teams will prepare and negotiate sets of credit documents. The course will also consider some inherent limitations of commercial credit documentation. Students will be exposed to basic commercial credit transactional documentation, applicable provisions ofUCC Articles 1,2, 2A and 9, the Bankruptcy Code, and case law and articles on these subjects.

Prerequisite: Commercial Law; Debtor/Creditor also helpful, but not essential and not a prerequisite. This course satisfies the planning and drafting requirement.

Criminal Law Seminar: Death Penalty (2)
Prof. Aarons

The Eighth Amendment of the U.S. Constitution prohibits the infliction of "cruel and unusual punishments." Yet, it has only been since the late 20th century that Eighth Amendment jurisprudence, particularly with respect to the death penalty, has developed into a series of complex and somewhat inconsistent rulings, all designed to ensure that the judgment of death is appropriate in each individual case. Virtually no one is neutral on whether society's most awesome legal action -- the taking of a human life as punishment for crime -- should continue to be used or on how the death penalty has affected this nation. On the one hand, there is a generally perceived public and legislative consensus on the continued validity of the ultimate criminal sanction. For example, since 1976, when the U.S. Supreme Court ruled that the death penalty did "not invariably" violate the Eighth Amendment, more than 1,057 persons (and counting) have been executed in the U.S. On the other hand, the death penalty continues to be attacked on a number of levels -- philosophically, morally, administratively and, most certainly, legally. This has resulted in nearly 3,300 persons presently residing on death row.

The death penalty continues to generate debate and effect public policy. For example: In 2000 and 2002, comprehensive reports by academics charged that the United States' system of capital punishment was fraught with errors. The federal government issued a comprehensive
report in 2000, detailing statistical information on the federal death penalty. In 2002, the U.S. Supreme Court ruled that it was unconstitutional to execute mentally retarded criminal defendants, and in 2005 the Court ruled that execute those who committed capital crime when they were 16 and 17 years' old. In 2008, the Court is expected to rule on the constitutionality of methods of execution and whether child rapists can be sentenced to death. Either ruling is likely to seriously impact the future of capital punishment.

In Tennessee: in 2000, after a 40-year lull, the state resumed executions with the death of Robert Glen Coe. Sedley Alley was executed in 2006 and Philip Workman in 2007. Several other capital cases are now in the last stages of litigation. Some claim that there are factually innocent inmates on Tennessee's death row. In 2006, the U.S. Supreme Court remanded a Tennessee capital case, strongly suggesting that DNA evidence exonerated the defendant's 20 year old conviction. In 2007, the American Bar Association issued an assessment of Tennessee's death penalty practices and found fault with the current system and recommended a moratorium. The Tennessee General Assembly is currently studying the state's death penalty.

This course considers the death penalty and issues surrounding its administration. An important part of the class is an all-day field trip to Riverbend Correctional Institution in Nashville, during the first part of the semester. A local prosecutor and defense attorney, who have handled capital cases, visit the class, and share their views with students. The course focuses upon several aspects of the Eighth Amendment and the death penalty, including a review of major United States Supreme Court cases and an exploration of the death penalty from both theoretical and practical perspectives.

This course deals with a controversial subject. It requires students to continually consider and evaluate their own lawyering skills, and own ethical values. At bottom, students will be asked to consider the validity of the rule of law as it relates to death as punishment. A course requirement is a 20 to 30 page paper of publishable quality, which will satisfy the expository writing requirement. The class meets once a week for two hours and students may be assigned roles in mock proceedings. An important course requirement is class discussion: If you are unwilling or unable to read approximately 40 pages per week and attend a two-hour class during which you will discuss the readings and related topics, then this course is not for you.

Class Limit: 16 students

Debtor Creditor
Prof. Plank

Substantive Subject Matter: Bankruptcy Law

The fundamental elements of federal bankruptcy law; the organization of the United States Bankruptcy Code; the difference between liquidation and reorganization for individuals and business entities; the bankruptcy estate available for distribution to creditors; determining and valuing the claims of creditors in the bankruptcy proceeding; the automatic stay of creditor collection efforts; the bankruptcy trustee's powers to avoid unperfected security interests, preferential transfers, and fraudulent conveyances; the trustee's power to assume or reject executory contracts and leases; and priority in distribution from the bankruptcy estate. Brief analysis of state debt collection law consisting of the state law methods of obtaining liens on a debtor's property to collect a debt.

The policy reasons behind the law, the incentives that various bankruptcy rules create, and methods of avoiding the consequences of bankruptcy laws.

Skills Development: Statutory analysis and interpretation.

Methodology: Analysis by students in class of short problems (around 45, containing an average of 3-1/2 subparts each) using the Bankruptcy Code and other statutes; analysis of cases (around 46) interpreting bankruptcy statutes.

Primary Purpose: Providing a fundamental understanding of bankruptcy law for both a bankruptcy specialist or a general practitioner who wants to structure transactions for clients, litigate on behalf of clients, or advise clients with an appreciation for those aspects of bankruptcy law that will affect clients in a large variety of matters, including commercial transactions, torts, the environment, and domestic relations.

Secondary Purpose: Because of the necessity of translating non-bankruptcy law into the bankruptcy forum, the course presents an opportunity to examine important concepts of non-bankruptcy law, such as property, contract rights, corporations, torts, and environmental law.

Text and Materials:

Charles J. Tabb and Ralph Brubaker, Bankruptcy Law: Principles, Policies, and Practice (Lexis Nexis 2d. ed. 2006).

The Bankruptcy Code. This appears in the latest version of Douglas G. Baird et al., Commercial and Debtor-Creditor Law: Selected Statutes. You may use an earlier edition or other books, but the version you use must include the 2005 amendments to the Bankruptcy Code.

A supplement prepared by me that contains additional problems, cases, and notes.

Class Preparation and Course Administration:

To accommodate a few anticipated class cancellations, classes will run 60 minutes instead of 50 minutes, and there will be 35 classes instead if 42 classes. Consistent attendance and preparation are necessary for understanding and enjoying the subject matter. The grade is based on a three hour, completely open book (no limitations) essay exam.

Disability Law
Prof. Long

This course provides an overview of disability law with a major emphasis on the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act. The Course will focus on many of the policy issues that arise in the area of disability law examining how laws impact the lives of people with disabilities in such areas as employment discrimination, public accommodations, housing, and education, with a particular emphasis on employment discrimination. The course will survey relevant cases, statutes, articles, and legal doctrines and explore how this area of law reflects societal attitudes towards people who are perceived as having or not having disabilities. In addition to statutes and case law this course will introduce students to social science research addressing salient disability issues in contemporary society.

Employment Discrimination Law
Prof. Hirsch

This course surveys the major federal statutes dealing with discrimination in employment, including the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. In reviewing these acts, the course will consider discrimination based on an employee’s status (e.g., race, sex, sexual orientation, religion, age, and disability), sexual harassment, reverse discrimination, and affirmative action. Finally, it will examine some practical aspects of practice in this area, particularly administrative requirements for pursuing discrimination litigation.

Environmental Law Clinic (3)
(*Subject to revision)

The Environmental Law Clinic provides law students an opportunity to develop the skills required to successfully respond to specific environmental challenges in practice. Students will help local governments, state agencies, business interests, and non-profit organizations develop quality land use and growth management policies and practices.

Law students in this Clinic will coordinate with graduate students from ecology, environmental design, forest and wildlife management, and other disciplines. This opportunity will allow students and faculty to work with other disciplines in integrated environmental decision-making and problem-solving thus improving their ability to understand, communicate with, and influence other disciplines.

The Clinic has two components:

1. Classroom time will be held jointly with students from other disciplines and will involve reading assignments, traditional lectures, speakers, and discussion. Attendance is mandatory.
2. The experiential component involves an average of 8-10 hours per week during a semester. Students work on legal aspects of environmentally-related issues confronting state agencies, local governments, and non-profits. Students will also respond to more time-sensitive research requests that come in to the clinic throughout the course of the semester. The students’ learning is directly supervised by the faculty clinical director.

Students engage in at least one substantial piece of research and writing as a class paper. These projects may include expository writings, policy papers, educational materials, or operative legal documents.

Law and Public Policy
Dr. Stephens

In this course we will examine, with reference to selected issues, the performance of American courts and quasi-judicial administrative agencies in formulating and implementing public policy. Although substantial attention will be given to decisions of the United States Supreme Court, we will look at a number of state and lower federal court decisions as well as those of administrative agencies—federal, state and local—that take part in the processes of rule-making and adjudication. Educational policy will be emphasized, but we will also study recent developments in the rapidly growing field of disability law.

Law of the Workplace
Prof. Hirsch

This course will explore federal and state regulation of the employment relationship. One focus will be state common-law doctrines, particularly employment “at-will” and its erosion through contract (e.g., employee handbooks), tort (e.g., fraud and defamation), and public policy claims. Also addressed will be limits on employee conduct, including non-compete agreements and trade secret protections. Laws dealing with whistleblowers, retaliation, and workplace privacy will be explored, as will constitutional protections of employees’ free speech and free association rights. Other topics will include federal legislation on minimum wage and overtime, family and medical leave, and employee retirement systems.

Environmental Law Clinic (3)
(Subject to revision)

The Environmental Law Clinic provides law students an opportunity to develop the skills required to successfully respond to specific environmental challenges in practice. Students will help local governments, state agencies, business interests, and non-profit organizations develop quality land use and growth management policies and practices.

Law students in this Clinic will coordinate with graduate students from ecology, environmental design, forest and wildlife management, and other disciplines. This opportunity will allow students and faculty to work with other disciplines in integrated environmental decision-making and problem-solving thus improving their ability to understand, communicate with, and influence other disciplines.
The Clinic has two components:

1. Classroom time will be held jointly with students from other disciplines and will involve reading assignments, traditional lectures, speakers, and discussion. Attendance is mandatory.

2. The experiential component involves an average of 8-10 hours per week during a semester. Students work on legal aspects of environmentally-related issues confronting state agencies, local governments, and non-profits. Students will also respond to more time-sensitive research requests that come in to the clinic throughout the course of the semester. The students’ learning is directly supervised by the faculty clinical director.

Students engage in at least one substantial piece of research and writing as a class paper. These projects may include expository writings, policy papers, educational materials, or operative legal documents.

Law and Economics
Prof. Lloyd

This course satisfies the PERSPECTIVE requirement and the EXPOSITORY WRITING requirement.

This course will explore economic analysis as it affects both legal theory and practical problems of law practice. No prior knowledge of economics is required or expected, but people with prior experience in economics are welcome. I plan to keep the course as intuitive and non-technical as possible, although we will look at option theory and risk, which will require us to use a few numbers (but no math beyond the middle school level).

Among the topics I hope to explore in the course are:

-- the economics of law firms
-- the economics of intellectual property
-- behavioral economics
-- the use of game theory in transactional practice and in litigation
-- international trade and globalization
-- political economy and the evolution of institutions
-- the effect of option theory on legal rules and on the practice of law

There will be no exam in the course. Grades will be based on class participation, class presentations, and a paper.

Because of the nature of the course, enrollment for credit will be limited to 24 students. Auditors are welcome.