Southern Law Journal

Articles

Vol. 25, No. 1, Spring

SORRELL V. IMS HEALTH INC.: SOWING MISCHIEF IN COMMERCIAL SPEECH PROTECTION+
I. INTRODUCTIONIn Sorrell v. IMS Health Inc.,1 the U.S. Supreme Court in a six to three decision ruled Vermont's Prescription Confidentiality Law ("PCL")2 violated the First Amendment protections accorded commercial speech.3 PCL prohibited the sale,...
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The Employer's Conundrum of Firearms and Parking Lots
[A]according to the Bureau of Labor Statistics, between 1997 and 2010, there were a total of 8,666 occupational homicides, of which 1,512 involved a work associate killing a coworker or former coworker (n = 894), or a customer or client (n = 618), followed...
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Tracking Off-Campus Speech: Can Public Schools Monitor Students' Social Media?
The U.S Supreme Court first articulated guidelines that govern student free speech rights in the landmark 1969 case, Tinker v. Des Moines Independent Community School District} The Court in Tinker held that public school officials may discipline students...
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Critical Timing Issues with Respect to Workplace Investigations: What Would the U.S. Supreme Court Say?
I. INTRODUCTIONMany court decisions have addressed issues surrounding discriminatory harassment in the workplace. These decisions have given employers broad commands, but very few specific guidelines for meeting their court-derived obligations. While...
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The Elimination of the Department of Defense Ground Combat Exclusion Rule May Be the Key to Invalidating Two Bfoq Defenses
I. INTRODUCTIONTitle VII of the Civil Rights Act of 1964 expressly prohibits employers from discriminating against potential employees on the basis of race, color, religion, sex, or nationalorigin.* 1 In choosing between candidates who are equally qualified...
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Help! an Avatar Stole My Right of Publicity
Many video games use the likenesses of individuals to provide an element of realism to the games. This is especially true in video games in a sports setting. In games such as NCAA Football and NCAA Basketball, both developed and distributed by EA Sports,...
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Social Media Employment Policy and the Nlrb: Uniform State Laws as a Solution?
I. INTRODUCTIONThe modem advent of electronic social media plays a huge and increasing role in all areas of employment relations both as a means of personal employee communication, group communication, customer/stakeholder information, and as a tool...
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Civilian Commercial Drones Are Coming; Are We Ready?
I. INTRODUCTIONIn early December of 2013, Jeff Bezos, the CEO of Amazon.com (Amazon), announced that the company was testing a new delivery system called Prime Air.* 1 Prime Air would consist of propeller driven drones2 that could deliver packages within...
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Vol. 24, No. 2, Fall

Dodd-Frank's Conflict Minerals Rule: The Tin Ear of Government-Business Regulation
From 2007-2012 the United States encountered its longest and deepest economic recession since the 1930's. Most analysts attribute the economic contraction's proximate cause to a systemic meltdown in the national and world financial markets. This occurred...
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Expanding Protection for Whistleblowers under Federal Employment Laws: A Primer on Retaliation
I. IntroductionRetaliation is a claim that can be made by an individual under a number of employment laws in which the individual employee claims that he or she was punished by the employer for having engaged in statutory protected activity. These protected...
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Business Organization Legal Issues Arising from Ideas Generated by University Students
Many universities and schools of business offer courses that require students to start an on-campus business, write a business plan, or similar activities. This paper considers how state laws related to business organizations may have application to...
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Affirmative Action: A Schizophrenic History
I. The Background of Affirmative ActionAffirmative Action is usually, but incorrectly, traced to Executive Order 11246 signed into law by President Lyndon Johnson on September 24, 1965.1 As originally phrased, Executive Order 11246 forbade employment...
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Stolen Valor: Lies, Deception and the First Amendment
I. IntroductionIn United States v. Alvarez,l the U.S. Supreme Court decided that the Stolen Valor Act of 2005, which makes it a crime to falsely claim receipt of military medals or decorations2 and provides an enhanced penalty for offenses involving...
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Kiobel V. Royal Dutch Petroleum Co.: Radical Revision or Original Intent of the Alien Tort Statute
I. IntroductionOn April 17, 2013, in Kiobel v. Royal Dutch Petroleum Co.,1 the U.S. Supreme Court, in a unanimous decision authored by Chief Justice Roberts, issued an important opinion limiting the scope of claims that can be brought under the Alien...
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CRITICAL THINKING AND THE McDONALD'S HOT COFFEE CASE: A PEDAGOGICAL NOTE
This year marks the twentieth anniversary of the now legendary case of Liebeck v. McDonald's Restaurants} A basic sketch of the case is well known. A jury awarded an elderly woman a large sum of money for damages she incurred as a result of spilling...
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A Survey of State Copyright Law
I. IntroductionState legislatures and Congress have enacted numerous anti-piracy copyright statutes protecting sound recordings. Technological developments in the early 1970s made duplication of sound recordings both easy and inexpensive,1 allowing record...
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Vol. 24, No. 1, Spring

Arbitration Agreements, Expanded Judicial Review, and Preemption - Hall Street Associates and NAFTA Traders, Inc. - a National Debate with International Implications
I. INTRODUCTIONOn May 13, 2011, the Texas Supreme Court, in construing the Texas Arbitration Act, rejected the U. S. Supreme Court's analysis in Hall Street Associates, L.L.C. v. Mattel, Inc} At issue was whether the parties may by agreement expand judicial...
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The Squiggly Line: When Should Individual Choices Be Protected from Employment Discrimination?
I. INTRODUCTIONReligion, pregnancy, smoking, criminal conduct, personal appearance, sexual orientation, and gender identity - they are all, to some extent, individual choices. When should employers be permitted to discriminate in employment decisions...
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Trade Secret Misappropriation in Texas
Many companies doing business in Texas often choose to protect certain business information as trade secrets rather than use other forms of intellectual property protection. Unfortunately, these companies must be constantly vigilant to ensure their trade...
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Amendments to the Americans with Disabilities Act: How Will It Change Judicial Consideration of Employees' Claims of Discrimination?
I. INTRODUCTIONWhen the Americans with Disabilities Act (ADA) was passed in 1990, it was heralded as landmark legislation for persons with disabilities. In signing the bill, then President George H.W. Bush remarked that the Act "signals the end to the...
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The Role of Courts and Judges According to Contemporary Libertarians
I. INTRODUCTIONArguably, the two most influential libertarians of the twentieth century were Ayn Rand and Milton Friedman. Rand and Friedman disagreed on the appropriate activities for government in general and the legal system in particular. Both described...
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Congress Kickstarts Securities Laws to Jumpstart the Economy: The Jobs Act Awaits Sec Implementation
I. INTRODUCTIONSecurities fraud is as American as apple pie.* 1 Preventing securities fraud has been a priority of federal and state governments since before the 1929 stock market crash.2 The Securities Act of 19333 (the Securities Act) and the Securities...
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Promises to Keep? Coaches Tubby Smith, Jimmy Williams and Lessons Learned in 2012
I. INTRODUCTIONContract law principles have remained relatively constant and stable for centuries, including fundamentals such as the implied duty of good faith when bargaining and freedom of contract generally.* 1 One of the fundamental principles in...
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Vol. 23, Fall

The Debate over Replacing the Present Income Tax with an Alternative Tax Structure
I. IntroductionThere is an ongoing debate about whether the United States should switch from its present progressive income tax structure to a consumption tax or a hybrid income tax, and whether the tax structure chosen should be a flat tax (all taxpayers...
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What Students and Independent Inventors Need to Know about the America Invents Act
I. IntroductionAccording to a survey by the Young Invincibles, a group that focuses on youth entrepreneurship, fifty-four percent of U.S. 18-to-34 year olds are interested in starting a business or have already done so.1 Therefore, it is fairly common...
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Eminent Domain in Oil and Gas: Tax Treatment When a Pipeline Devalues Surrounding Property
I. IntroductionThe United States currently has more than 1.8 million miles1 of underground natural gas pipeline and 160,000 miles2 of underground oil pipeline in place to move oil and gas minerals from production sites to processing locations and ultimate...
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Intellectual Property Issues Arising from Business Ideas Generated by Undergraduate Students
A decision from the United States Supreme Court in the summer of 2011 and the passage of the America Invents Act late the same year demonstrate the continued interest of courts and lawmakers in determining the contours of intellectual property protections....
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Taxation of Same-Sex Couples: Fair or Unfair?
I. General TaxationA. Congressional Power to TaxArticle 1, Section 8 of the United States Constitution provides: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises ... ; but all Duties, Imposts and Excises shall be uniform...
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Medical Marijuana and Employment Discrimination
I. IntroductionOver 400,000 people are currently using marijuana for medical purposes.1 In most cases, state law permits the use. Even though state law permits the use of marijuana for medical purposes, the use of marijuana for any purpose is still prohibited...
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Compliance Program Auditing: The Growing Need to Insure That Compliance Programs Themselves Comply
I. IntroductionCompliance with applicable laws and regulations has always been a concern of business ventures. Historically, internal or external legal counsel provided guidance, usually on a case by case basis. Over recent history, compliance efforts...
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Business Organizations in the 21st Century: A Look at New Legal Forms for Business That Enhance Social Enterprise
It is not the strongest of the species that survive, nor the most intelligent, but the ones most responsive to change}I. IntroductionChange is difficult, but necessary and valuable, to progress. The 21st Century has brought many changes, including a...
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Vol. 23, Spring

From the Editor's Desk . .
The SLJ Submission Policies and the SLJ Style Sheet can be found at our website: www.southernlawjounal.com. If you plan to submit, please follow the SLJ Style Sheet closely. Although it is expected that most SLJ articles will be presented at the SALSB...
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Electronic Snoops, Spies, and Supervisory Surveillance in the Workplace
I. INTRODUCTIONEmployees are spending an ever-increasing amount of time using computers, cell phones, tablets and other communication devices as part of their work-related activities. Unfortunately, the use of advanced communications systems, the proliferation...
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Unauthorized Televised Debate Footage in Political Campaign Advertising: Fair Use and the Dmca
I. IntroductionIn recent years television networks which air political campaign debates have attempted to enforce their copyright protection by denying the use of debate footage in subsequent campaign advertising. Although some campaigns have complied...
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What Constitutes a Trade Secret in Texas?
In many areas of the law Texans like to do things their own particular way. Trade secret law is no exception. While the majority of states have adopted the Uniform Trade Secrets Act into their legislation, Texas continues to follow the common law approach...
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Direct Interstate Wine Shipments: Commerce Clause and Regulatory Chaos for Small Wineries
I. INTRODUCTIONImagine that you're out with friends or that special someone on a Saturday enjoying a glass of wine at the new local winery. You see an interesting flavor and decide to give it a try. It tastes wonderful and you know it'll make the perfect...
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Constitutionality of the Alabama Immigration Law under the Beason-Hammon Alabama Taxpayer and Citizen Protection Act: The Case of United States V. Alabama
On June 2, 2011, the Alabama Legislature approved the BeasonHammon Alabama Taxpayer and Citizen Protection Act,3 and Governor Robert Bentley signed it into law on June 9, 201 1. The Alabama Legislature argued that the presence of undocumented immigrants...
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Snyder V. Phelps: A Cautiously Outrageous Protest
I. IntroductionIn Snyder v. Phelps,1 the United States Supreme Court, in a 8-1 decision authored by Chief Justice Roberts, upheld the First Amendment right of the Westboro Baptist Church and its members to picket the military funeral of Marine Lance...
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Vol. 22, No. 2, Fall

From the Editor's Desk . .
The SLJ Submission Policies and the SLJ Style Sheet can be found at our website: www.southernlawjounal.com. If you plan to submit, please follow the SLJ Style Sheet closely. Although it is expected that most SLJ articles will be presented at the SALSB...
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A Standard of Reasonableness: Constraining Mandatory Arbitration Clauses in Employment Agreements
I. INTRODUCTIONThe Supreme Court recently reaffirmed its commitment to honoring arbitration clauses found in employment agreements. In Rent-A-Center v. Jackson,1 the Court reiterated its belief that arbitration agreements in the employment context should...
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Does the Securities Exemption to the Class Action Fairness Act Create Too Much Uncertainty?
I. INTRODUCTIONIn 1995, Congress passed the Private Securities Litigation Reform Act (PSLRA)1. The primary justification of the PSLRA was to prevent abusive class-action securities litigation. The main form of abuse that Congress intended to prevent...
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Dischargeable or Not Dischargeable: Does an Intentional Breach of Contract Fall within Willful and Malicious under Section 523(a)(6) of the Bankruptcy Code?
I. INTRODUCTIONEven though a decade has passed since the Supreme Court decided the case of Kawaauhau v. Geiger,1 confusion still exists between the various federal jurisdictions as to the meaning of willful and malicious under § 523(a)(6) of the Bankruptcy...
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I See What You Did There: The Use of Social Networks to Gather Evidence
I. INTRODUCTIONA prompt and thorough factual investigation is key to successfully prosecuting or defending a claim. Indeed, such an investigation can bring clarity to confounding events and contradictory testimony and thereby prevent claims from ripening...
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Conflicted Research: Medical Scientists on the Payroll
i. introductionThe purpose of this case is to explore the recent and eye-opening revelations of pervasive conflicts of interest throughout the United States medical industry, and to provide a framework within which the revelations can be examined and...
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A House Divided: The Incompatible Positions of the Centers for Disease Control and the Equal Employment Opportunity Commission on Obesity as a Disability
The Centers for Disease Control and Prevention (CDC) is an arm of the Department of Health and Human Services,1 with a $10.8 billion budget for 20 ll2 and approximately 10,400 employees. According to its website, the mission of the CDC is: "Collaborating...
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Vol. 22, No. 1, Spring

From the Editor's Desk . .
The SLJ Submission Policies and the SLJ Style Sheet can be found at our website: www.southernlawiounal.com. If you plan to submit, please follow the SLJ Style Sheet closely. Although it is expected that most SLJ articles will be presented at the SALSB...
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Legislating "Nice": Analysis and Assessment of Proposed Workplace Bullying Prohibitions
While it may be immoral and unprofessional, it is not universally illegal in the United States for managers to threaten, insult, humiliate, ignore or mock employees. Nor is it illegal to gossip and spread rumors, withhold information, to take credit...
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Congress Proposes, the Supreme Court Disposes: Is There Room for Courts to Subvert the Will of Congress after the Adaa Act Broadens the Definition of Disability?
I. INTRODUCTIONCongress passed the Americans with Disabilities Act of 1990 (ADA) with broad bipartisan support amid cheers from disability rights groups. As time passed, the Supreme Court handed down several decisions that left those same groups largely...
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Reverse Payments in the Pharmaceutical Industry: Finding the Right Prescription
I. INTRODUCTIONEscalating prescription drug prices and the resulting impact on consumers have placed the costs associated with pharmaceutical medicines into the forefront of public consciousness. Political candidates, lobbyists, media personalities,...
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The Hijab and the Kufi: Employer Rights to Convey Their Business Image versus Employee Rights to Religious Expression
I. INTRODUCTIONIn August of 2010, the Storyteller's Café in Disney's Grand Californian Hotel & Spa repeatedly sent a hostess home without pay. Her offense was her refusal to remove her hijab, a head scarf worn by some Muslim women. Eventually Disney...
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Who Is That Masked Man: Should Anonymous Posters to Newspaper Websites Be Unmasked?
I. INTRODUCTIONA variety of cases have considered the privacy rights of anonymous posters on newspaper websites. Do the First Amendment or state shield laws defeat a subpoena demanding the names of these individuals? There are several competing considerations....
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Americans with Disabilities Act and E-Commerce: Target Corporation and Beyond
I. INTRODUCTIONPresident George H. W. Bush signed the Americans with Disabilities Act (ADA) into law in 1990. At the time of enactment, Congress stated in its findings that forty-three million Americans "have one or more physical or mental disabilities,...
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Split-Dollar Life Insurance Arrangements: A Tax Minimization Strategy Whose Time Has Returned
I. IntroductionA split-dollar life insurance arrangement (split-dollar arrangement) is a contract between a donor and a donee who share in the costs and benefits of a life insurance policy.1 Prior to 2003, a split dollar arrangement was a method of dividing...
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