Cover Story

Tennessee’s ‘Free and Untrammeled Judiciary’

The Turmoil over the Carmack Murder Case

Because of their indispensable duty to expound the law and resolve disputes, courts cannot avoid controversy. Therefore, throughout history Tennessee’s judiciary has had to overcome many challenges and unwarranted attacks. One of its greatest challenges was occasioned by the death of Edward Ward Carmack, a Tennessee political powerhouse of the early 20th century.

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Stay Relevant

Data Can Help Lawyers Thrive in the Changing Marketplace

The digital age has changed the practice of law as we know it. The rapid rise and growing use of technology influence client expectations which, in turn, impact the business practices of the private sector legal services industry. With a few simple clicks of a button, for example, a user can create an online will or incorporate their business for under $100. How do attorneys stay relevant during such taxing times?

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20 Years of Hope

Tennessee Lawyers Assistance Program Celebrates Lives Saved

The Tennessee Lawyers Assistance Program (TLAP) is a free, confidential assistance program that provides consultation, referral, intervention and crisis stabilization for law students, bar applicants, lawyers and judges who are experiencing substance use disorders, stress or emotional health issues.

TLAP has been helping the Tennessee legal profession for 20 years, and it is difficult to remember a time when the program did not exist. But for many years before its establishment, local assistance programs filled the need for lawyer assistance in Tennessee.

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Who Gets the Credit?

Calculating the New Child Tax Credits in Your Parenting Plan

New tax law? Really? Really. The children’s dependency deductions are gone. What’s next? The Child Tax Credit (CTC) helps fill that gap. The cool thing about credits is that they are dollar for dollar reductions of tax, not a reduction of taxable income. This means that the parents’ marginal federal income tax rate does not impact the value associated with the reduction. 

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The Closer: A Step-by-Step Guide to Delivering the Perfect Closing Pitch

Closing argument is surely one of the highlights of any trial lawyer’s practice. While closing argument is undoubtedly thrilling, it is also very challenging. This article will introduce you to the most important aspects of giving a closing argument and provide sufficient information to give you confidence to do your first closing argument and give you a rudimentary framework upon which you may build your own confident and winning style of summation for future trials.

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Pro Bono Heroes

Celebrating the Intrepid Volunteer Lawyers of Tennessee

Compiled by the TBA Access to Justice Committee

Tennessee attorneys have a solid record of commitment to pro bono service, among the highest in the country. Attorneys in the state reported performing an average of 53.1 hours of pro bono in 2016 — the second highest rate among all states taking part in an American Bar Association survey.[1] The report also found that just shy of 67 percent of attorneys in the state reported having done at least some pro bono in 2016, and Tennessee was a leader in the proportion of attorneys offering reduced fee services. Tennessee also had the second lowest percent of attorneys who had never performed pro bono among the 24 states that participated in the survey. Results also showed that four out of five attorneys believe that pro bono services are important, although finding the time to provide free or low-cost legal services to the needy and charitable groups remains the biggest challenge for many.

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From ‘Blurred Lines’ to Monkey Selfies

Litigation Lessons Drawn from 2018 Entertainment Law Cases

Courts this year have wrestled with issues such as rights in a band’s name, the intersection of new technology and copyright infringement, traditional claims of copyright infringement, rights in “monkey selfies,” the fair-use doctrine in the Copyright Act and the appropriate methodology for calculating attorneys’ fees for a prevailing party. Although the cases discussed here focus on substantive issues arising in the context of the entertainment industry, the principles addressed by the underlying lawsuits apply to any civil-litigation practice.

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Suffering Wrongs Without Remedies

Damages and the Tennessee Constitution

“… every man, for an injury done him in his lands, goods, person or reputation,
shall have remedy by due course of law ...”
 — Article I, Section 17 of the Tennessee Constitution

“Historically, damages have been regarded as the ordinary remedy for an
invasion of personal interest in liberty.”   
— Justice William Brennan[1]

More than 40 years ago, U.S. Supreme Court Justice William Brennan issued a clarion call about the importance of individual rights under state constitutions. Upset at the erosion of rights guaranteed by the United States Constitution, Brennan wrote that state constitutions were “font[s] of individual liberty” that often provide greater protection than the Supreme Court’s interpretation of federal law.[2] 

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Online Sales Tax

What ‘South Dakota v. Wayfair’ Means for Tennessee

In a 5–4 decision on June 21, 2018, the Supreme Court upheld South Dakota’s online sales tax collection statute and ruled that the “physical presence” test, under the court’s 1992 case Quill Corp. v. North Dakota,[1] no longer limits a state’s ability to collect sales tax on purchases by in-state customers. In order for a state to impose a duty on sellers to collect online sales tax, the seller must have a substantial nexus with the taxing state. “Such a nexus is established when the taxpayer or collector avails itself of the substantial privilege of carrying on business in that jurisdiction.”[2] Before Wayfair, a business had to have a physical presence in a state to satisfy this substantial nexus requirement. However, writing for the majority, Justice Kennedy, joined by Justices Alito, Ginsburg, Thomas and Gorsuch, found the “physical presence rule” is not a “necessary interpretation” of the substantial nexus requirement. In the majority’s view, earlier decisions like Quill “serve[d] as a judicially created tax shelter for businesses that decide to limit their physical presence and still sell their goods and services to a State’s consumers.”

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Don’t Make Her Choose

Why Parents Should Never Ask Children What Visitation They Want

In a divorce or separation, parents should never ask their children what visitation they want. The scheduling of parenting time in the parenting plan is for adults to work through, not children. Here’s why.

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