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Articles 31 - 60 of 150
Full-Text Articles in Law
Send Us The Bitcoin Or Patients Will Die: Addressing The Risks Of Ransomware Attacks On Hospitals, Deborah R. Farringer
Send Us The Bitcoin Or Patients Will Die: Addressing The Risks Of Ransomware Attacks On Hospitals, Deborah R. Farringer
Law Faculty Scholarship
“You just have 10 days to send us the Bitcoin. After 10 days we will remove your private key and it's impossible to recover your files.” Message to Medstar employees. Within a span of just a few months in the spring of 2016, fourteen hospitals (four hospital systems) experienced ransomware attacks resulting in an inability for the hospitals to access any of their electronic medical records, including necessary patient data. Knowing that hospitals must have access to this data in order to appropriately treat and monitor patients, those responsible for the attacks requested a bitcoin payment as ransom for the …
Religious Freedom: The Original Civil Liberty, Loren E. Mulraine
Religious Freedom: The Original Civil Liberty, Loren E. Mulraine
Law Faculty Scholarship
What exactly is a “civil right?” What is a “civil liberty?” Are they synonymous? To the average American, the term “civil rights” conjures up images of the Jim Crow south, Rosa Parks, the Montgomery bus boycott, James Meredith’s integration of the University of Mississippi, Martin Luther King, Jr.’s March on Washington, the Edmund Pettus Bridge, and the Freedom Riders in Mississippi, among other historic events of the 1950’s and 60’s. Indeed, these are some of the most iconic events in modern U.S. history. They are also among the most important events in the modern civil rights movement. The legal area …
Collision Course: State Community Property Laws And Termination Rights Under The Federal Copyright Act - Who Should Have The Right Of Way?, Loren E. Mulraine
Collision Course: State Community Property Laws And Termination Rights Under The Federal Copyright Act - Who Should Have The Right Of Way?, Loren E. Mulraine
Law Faculty Scholarship
The purpose of this paper is to provide an overview of recapture rights under copyright law, as well as a primer on the difference between common law and community property law as it relates to property rights in a divorce proceeding. The paper will utilize as a case study the dispute between William “Smokey” Robinson and his former spouse, Claudette Robinson, and provide a statutory solution for future disputes where federal copyright law and state community property laws collide at the intersection of copyright terminations. Specifically, should these newly recaptured rights be treated as a new estate and thus not …
The Secret To 85% First-Time Bar Passage Rates, Jeffrey S. Kinsler, David L. Hudson Jr.
The Secret To 85% First-Time Bar Passage Rates, Jeffrey S. Kinsler, David L. Hudson Jr.
Law Faculty Scholarship
Many law schools have implemented bar preparation courses either as free-standing courses or as an integral part of their academic support program. On April 1, 2016, the ABA Journal published an article on the subject of law school bar preparation courses. Three law schools were featured in that article: Belmont University College of Law ("Belmont"), Florida International University College of Law ("FIU"), and the University of Missouri-Kansas City School of Law ("UMKC"). According to the ABA Journal, these law schools are out-performing their peers on bar exams due in part to in-house bar preparation courses. The story in the ABA …
Anti-Profanity Laws And The First Amendment, David L. Hudson Jr.
Anti-Profanity Laws And The First Amendment, David L. Hudson Jr.
Law Faculty Scholarship
The essay first examines several current state laws that prohibit profanity under certain circumstances. It then details a few recent cases in which individuals were convicted for uttering profanity. The next section explains how profanity can be a part of an unprotected category of speech, such as fighting words, true threats, or harassment. Finally, the essay examines whether such laws and cases comport with First Amendment principles.
Is Bar Exam Failure A Harbinger Of Professional Discipline?, Jeffrey S. Kinsler
Is Bar Exam Failure A Harbinger Of Professional Discipline?, Jeffrey S. Kinsler
Law Faculty Scholarship
Two of the reasons students fail the bar exam are lack of diligence and incompetence; these are also the primary reasons attorneys are disciplined. Using bar exam and disciplinary data from Tennessee, this Article substantiates the following theses: (1) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for ethical violations, particularly early in the lawyer’s career; and (2) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for lack of diligence—including non-communication—and/or incompetence.
Series Llcs Part 1 — Current Status, Multi-State Issues And Potential Uniform Limited Liability Company Protected Series Act, Alberto R. Gonzales, J. Leigh Griffith
Series Llcs Part 1 — Current Status, Multi-State Issues And Potential Uniform Limited Liability Company Protected Series Act, Alberto R. Gonzales, J. Leigh Griffith
Law Faculty Scholarship
The Series Limited Liability Company (“Series LLC”), a variation of the traditional limited liability company (LLC), is the newest entity enterprise on the business scene today. Within this legal entity, separate “series” or “cells” can be created and established under the umbrella of a single LLC. Despite being under one “umbrella,” each of these cells has characteristics that make it both separate from one another as well as from the Series LLC itself. There is not yet a common term for these distinct units although the term series or cell is often used. The Drafting Committee for the Limited Liability …
Advancing Executive Branch Immigration Policy Through The Attorney General's Review Authority, Alberto R. Gonzales, Patrick J. Glen
Advancing Executive Branch Immigration Policy Through The Attorney General's Review Authority, Alberto R. Gonzales, Patrick J. Glen
Law Faculty Scholarship
Prospects for comprehensive immigration reform look dim in light of past failures to enact legislation, such as the DREAM Act, and a continued period of divided government placing a skeptical Republican Congress in opposition to a sympathetic Democratic President. With legislative fixes for the United States’ immigration system unlikely in the near future, the Obama Administration will continue to press its immigration agenda via executive order and enforcement memorandum. Such initiatives do provide real short-term benefits, but they are by nature temporary and lack the ability to provide any permanent status to their beneficiaries. Importantly, however, they are not the …
'White Collar Crime': Still Hazy After All These Years, Lucian E. Dervan, Ellen S. Podgor
'White Collar Crime': Still Hazy After All These Years, Lucian E. Dervan, Ellen S. Podgor
Law Faculty Scholarship
With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under …
Buckle Up: State Child Safety Restraint Laws Need To Be Strengthened To Better Protect Children, Ellen A. Black
Buckle Up: State Child Safety Restraint Laws Need To Be Strengthened To Better Protect Children, Ellen A. Black
Law Faculty Scholarship
This article reviews the history of child safety restraints and analyzes the relevant health agency recommendations to consider their accretive value in determining whether stronger child safety restraint laws should be enacted. Next, the article reviews the current state of law in the area of child safety restraints and addresses arguments against strengthening the current laws. Lastly, the article concludes that states should enact the proposed model act to ensure that this nation's children ride safely restrained.
The Meaning Of The Constitution And The Selection Of Judges, Harold See
The Meaning Of The Constitution And The Selection Of Judges, Harold See
Law Faculty Scholarship
In the ongoing debate over the best method for choosing judges, the focus has been on the perceived drawbacks of judicial election without commensurate consideration of either the advantages of popular elections or the disadvantages of the commission system-usually styled the "Missouri plan" or "merit selection." One such consideration is the means of defining the judicial power.
State 'Right To Try' Acts: A Good Start, But A Federal Act Is Necessary, Ellen A. Black
State 'Right To Try' Acts: A Good Start, But A Federal Act Is Necessary, Ellen A. Black
Law Faculty Scholarship
In an effort to help terminally ill patients bypass the FDA's arduous, time-consuming approval process and have quicker access to potentially life-saving drugs, states across the country have passed "right to try" acts. These state acts allow a terminally ill patient the right to access an investigational drug that has completed initial safety testing, known as Phase I, but that has not been approved by the FDA. The reasoning behind these acts is that terminally ill patients, with the guidance and counsel of their physicians, should have the choice whether to pursue an unapproved drug, rather than placing their fate …
Nationwide Permit 13, Shoreline Armoring, And The Important Role Of The U.S. Army Corps Of Engineers In Coastal Climate Change Adaptation, Travis Brandon
Nationwide Permit 13, Shoreline Armoring, And The Important Role Of The U.S. Army Corps Of Engineers In Coastal Climate Change Adaptation, Travis Brandon
Law Faculty Scholarship
The ongoing armoring of the nation’s coastlines with seawalls and bulkheads causes the inevitable destruction of miles of coastal wetlands. Armoring increases the rate of shoreline erosion and blocks the long term migration of wetlands inland, a process that will be necessary for coastal wetlands to survive sea level rise. Coastal armoring also reduces the habitat available to coastal species, and blocks access to the upper reaches of the beach for sea turtles and other species that depend on the beach for nesting. And yet, despite these well established and significant environmental harms, the United States Army Corps of Engineers …
Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist, William W. Berry
Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist, William W. Berry
Law Faculty Scholarship
In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if …
Local, State, And Federal Responses To Stalking: Are Anti-Stalking Laws Effective?, Tracey Carter
Local, State, And Federal Responses To Stalking: Are Anti-Stalking Laws Effective?, Tracey Carter
Law Faculty Scholarship
Statistics show that there are currently 7.5 million victims of stalking in the United States each year. The year 2014 commemorated the 20th Anniversary since passage of the federal Violence Against Women Act of 1994 (“VAWA”) that was signed by President Bill Clinton on September 13, 1994. Passage of this Act marked a key transformation in our nation’s response to the crimes of domestic violence, sexual assault, and stalking. The VAWA was established to promote “collaboration among law enforcement, health care providers, nonprofit service groups, community leaders, and the private sector” to combat these crimes. In fact, the VAWA was …
Corporate Criminal Liability, Moral Culpability, And The Yates Memo, Lucian E. Dervan
Corporate Criminal Liability, Moral Culpability, And The Yates Memo, Lucian E. Dervan
Law Faculty Scholarship
This article examines the Department of Justice's Principles of Federal Prosecution of Business Organizations (contained in the USAM) and considers the concept of "moral culpability" within them. The article goes on to propose revising the Principles of Prosecution to better focus on questions of "corporate moral culpability" as a means of more accurately assessing corporate criminal liability. In doing so, the article proposes not only changes to the Principles of Prosecution, but changes to the common law respondeat superior test for corporate liability. Finally, the article considering the impact of the Yates Memo (2015) on corporate charging decisions and the …
Internal Investigations And The Evolving Fate Of Privilege, Lucian E. Dervan
Internal Investigations And The Evolving Fate Of Privilege, Lucian E. Dervan
Law Faculty Scholarship
In 1981, the United States Supreme Court delivered a landmark ruling in Upjohn Co. v. United States. The decision made clear that the protections afforded by the attorney-client privilege apply to internal corporate investigations. This piece examines the fundamental tenets of Upjohn, discusses some recent challenges to the applicability of privilege to materials gathered during internal investigations, and considers the manner in which the international nature of modern internal investigations adds complexity and uncertainty to the field.
Everything Old Is New Again: Will Narrow Networks Succeed Where Hmos Failed?, Deborah R. Farringer
Everything Old Is New Again: Will Narrow Networks Succeed Where Hmos Failed?, Deborah R. Farringer
Law Faculty Scholarship
As health insurers try to navigate the new limitations set forth under the ACA, including prohibitions on denying individuals with pre-existing conditions and limitations on the rating of patients, insurers are looking towards models that will enable them to control costs without access to their usual tools. What they have developed is not so much a new insurance model, but actually a concept that first arose during the rise of managed care; that is, limited provider networks utilized within health maintenance organizations (“HMOs”). These “new” insurance products, often referred to as narrow networks or high-performance networks, offer beneficiaries a more …
Symposium Panel: Bringing Blurred Lines Into Focus, Loren E. Mulraine
Symposium Panel: Bringing Blurred Lines Into Focus, Loren E. Mulraine
Law Faculty Scholarship
Belmont Law Review Symposium: Bringing Blurred Lines into Focus, October 2015
Fair Play Fair Pay: The Need For A Terrestrial Public Performance Right And General Copyright Reform, Loren E. Mulraine
Fair Play Fair Pay: The Need For A Terrestrial Public Performance Right And General Copyright Reform, Loren E. Mulraine
Law Faculty Scholarship
Copyright is a unique species of the law, tethered in a very tangible way to what is largely an intangible: intellectual property. It should be no surprise then that any collection of laws governing property that can be literally created in a moment out of nothing but the mind of the creator, will ultimately have an eternal struggle keeping pace with that very thing it purports to govern. Historically, copyright law has been relegated to being the horse that is second to cross the finish line at the Kentucky Derby. The horse is indeed world class; however, it is simply …
A Special Delivery: Litigating Pregnancy Accommodation Claims After The Supreme Court’S Decision In Young V. United Parcel Service, Inc., Lynn Ridgeway Zehrt
A Special Delivery: Litigating Pregnancy Accommodation Claims After The Supreme Court’S Decision In Young V. United Parcel Service, Inc., Lynn Ridgeway Zehrt
Law Faculty Scholarship
For over twenty years, the federal courts of appeals have been divided over the extent to which the Pregnancy Discrimination Act requires employers to offer light-duty or other work accommodations to pregnant employees. The division between circuits centers on the interpretation of the language in the second clause of the Pregnancy Discrimination Act mandating that employers “shall” treat pregnant employees “the same... as other persons... similar in their ability or inability to work.” Four circuits interpreted this clause to merely explain the first clause, thereby refusing to enforce any significant obligation on employers to accommodate pregnancy-related physical limitations, even when …
Dissecting The Hybrid Rights Exception: Should It Be Expanded Or Rejected?, David L. Hudson Jr., Emily H. Harvey
Dissecting The Hybrid Rights Exception: Should It Be Expanded Or Rejected?, David L. Hudson Jr., Emily H. Harvey
Law Faculty Scholarship
In the early 1960s, the Supreme Court of the United States adopted a high level of protection for religious liberty claims. The Court applied a version of strict scrutiny when evaluating governmental laws or regulations that burdened an individual's free exercise of religion. In 1990, the Supreme Court reversed decades of precedent and fundamentally changed the meaning and application of the Free Exercise Clause. In Employment Division v. Smith, the Court, in an opinion by Justice Antonin Scalia, determined that the Free Exercise Clause does not protect individuals from laws that donot target specific religious beliefs or practices. However, Justice …
First Amendment Right To Receive Information And Ideas Justifies Citizens' Videotaping Of The Police, David L. Hudson Jr.
First Amendment Right To Receive Information And Ideas Justifies Citizens' Videotaping Of The Police, David L. Hudson Jr.
Law Faculty Scholarship
Several courts have declared that members of the public have a First Amendment-protected right to film or videotape the police. At least one legal commentator has posited that this right falls within three of the five textually-based freedoms of the First Amendment - the Speech, Press, and Petition Clauses. This right to receive information and ideas is a "corollary" of the right to speak that triggers the First Amendment interests of not only speakers, but also audiences. This right to receive information and ideas applies in the context of citizens recording the police. The public has a right to know …
Advising The President: The Growing Scope Of Executive Power To Protect America, Alberto R. Gonzales
Advising The President: The Growing Scope Of Executive Power To Protect America, Alberto R. Gonzales
Law Faculty Scholarship
The scope of power that the executive branch has to act independently of the other government branches in the national security arena is one of the most difficult questions to answer in constitutional law. Congress has passed a number of statutes empowering the President to take actions necessary to protect our national security, but on relatively few occasions has Congress authorized the President to use force through declarations of war. As Counsel to the President, my job was to work with Attorney General John Ashcroft and other senior lawyers in the Bush Administration to advise the President on the limits …
Keeping Our Eyes On The Prize: Examining Minnesota As A Means For Assuring Achievement Of The 'Triple Aim' Under The Aca, Deborah R. Farringer
Keeping Our Eyes On The Prize: Examining Minnesota As A Means For Assuring Achievement Of The 'Triple Aim' Under The Aca, Deborah R. Farringer
Law Faculty Scholarship
A little more than four years after enactment of the Patient Protection and Affordable Care Act of 2010 (“ACA”), daily headlines still abound on newspapers and websites across the country highlighting both successes and failures of the ACA. In analyzing those successes and failures, especially in the context of care delivery, it is important to take a step back to consider the stated goals of the ACA, which goals have their origins in a premise first proposed by Dr. Donald M. Berwick and the Institute for Healthcare Improvement (“IHI”) in 2006 referred to as the “Triple Aim.” The Triple Aim …
Keep Out Fda: Food Manufacturers' Ability To Effectively Self-Regulate Front-Of-Package Food Labeling, Ellen A. Black
Keep Out Fda: Food Manufacturers' Ability To Effectively Self-Regulate Front-Of-Package Food Labeling, Ellen A. Black
Law Faculty Scholarship
The headlines on any given day claim that the American "obesity epidemic" continues to worsen.' According to these headlines, Americans, both adults and children, are increasingly becoming more obese, are more likely to be diagnosed with diabetes, and will likely prematurely die due to this preventable disease. Numerous private industries, as well as the government, seek to rescue Americans from this crisis. As the obesity epidemic debate intensifies, the call for more government regulation correspondingly grows. There are critics, however, who question the legitimacy of this epidemic and the need for more regulation. For example, some well-known scholars opine that …
From Youth Sports To Collegiate Athletics To Professional Leagues: Is There Really 'Informed Consent' By Athletes Regarding Sports-Related Concussions?, Tracey Carter
Law Faculty Scholarship
Traumatic brain injury (TBI) is a major public health issue in the United States. A sports-related concussion is a form of TBI that can occur from participation in both contact and non-contact sports and recreational activities. The Centers for Disease Control and Prevention estimates that 1.6 to 3.8 million sports- and recreation-related concussions occur in the United States every year. This article emphasizes the serious impact of TBI on youth, collegiate, and professional athletes, explores whether athletes are really “informed” regarding sports-related concussions, and provides recommendations to better protect athletes and to decrease the number of sports-related concussions.
Fearful Asymmetry: How The Absence Of Public Participation In Section 7 Of The Esa Can Make The 'Best Available Science' Unavailable For Judicial Review, Travis Brandon
Law Faculty Scholarship
Recent empirical studies have shown that public participation is an essential part of the listing process of the Endangered Species Act (“ESA”) because it provides the wildlife agencies with valuable scientific information regarding candidate species and forces agencies to make politically unpopular decisions to protect species standing in the way of development interests. However, the crucial agency-forcing mechanism of public participation is lacking in the interagency consultation process in section 7 of the ESA, one of the most important provisions by which the ESA’s protections for listed species are enforced. This Article explains how the absence of public input through …
Sentencing The Wolf Of Wall Street: From Leniency To Uncertainty, Lucian E. Dervan
Sentencing The Wolf Of Wall Street: From Leniency To Uncertainty, Lucian E. Dervan
Law Faculty Scholarship
This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today. In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud. This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders. …
I Am My Brother's Keeper: How The Crossroads Of Entrepreneurship, Intellectual Property And Entertainment Can Be Used To Affect Social Justice, Loren E. Mulraine
I Am My Brother's Keeper: How The Crossroads Of Entrepreneurship, Intellectual Property And Entertainment Can Be Used To Affect Social Justice, Loren E. Mulraine
Law Faculty Scholarship
Growing up in the Bronx, New York, our neighborhoods served as the fulcrum for the world we knew. Like many in my neighborhood, we were immigrants. My family had come to New York from the West Indies, for higher education, to make a better life and to contribute to a growing, energetic society. In many ways, the ultimate goal was to have a transformative effect upon our family tree. Many children, my sisters and I included, grew up in homes where we welcomed our parents’ siblings and their families – our aunts, uncles and cousins – to live with us …