Legal Writing and Research Commons^™

Cybersecurity Risk Shifting, Deborah R. Farringer

Law Faculty Scholarship

This article analyzes the growing problem of ransomware attacks in the healthcare sector and evaluates the evolving legal frameworks used to address cybersecurity risks affecting patient data. The authors trace the rapid increase in ransomware incidents, driven in part by the rise of digital health records and cryptocurrency-enabled extortion, and highlight the significant operational and privacy harms resulting from such attacks. The article critically examines existing federal and state legal mechanisms—including statutes such as HIPAA, criminal fraud provisions, and emerging state-level immunity laws—and argues that current approaches are insufficient due to jurisdictional challenges, particularly the transnational nature of cybercrime and …

Splitting The Statute: Severability As A Canon Of Construction Or Constitutional Concern?, Amy L. Moore

Law Faculty Scholarship

This Article examines the Supreme Court’s evolving severability doctrine and interrogates whether severability is best understood as a canon of statutory construction or as a constitutional limitation on judicial power. Tracing the doctrine from Marbury v. Madison through modern cases such as Champlin Refining Co., Carter Coal, INS v. Chadha, Alaska Airlines, Booker, and Seila Law, the Article demonstrates that the Court has oscillated between an interpretive presumption favoring preservation of legislative enactments and a structural concern about judicial lawmaking. It distinguishes between textual severability—excising unconstitutional statutory provisions—and application severability—limiting unconstitutional applications while preserving …

Interesting Intersections Of Immigration And First Amendment Law, David L. Hudson Jr., Maximiliano Gluzman

Law Faculty Scholarship

This article examines the complex and evolving intersections between immigration law and the First Amendment, identifying four doctrinal areas in which free speech claims arise prominently. First, it analyzes historical and contemporary grounds of inadmissibility and deportability based on speech, including ideological exclusions targeting anarchists and communists, and considers the continuing influence of the plenary power doctrine. Second, it explores retaliatory deportation claims, in which noncitizens allege that removal proceedings were initiated or accelerated in response to protected political advocacy, highlighting the chilling effects such actions may impose on core political speech. Third, the article evaluates constitutional challenges to federal …

Too Little Too Late: Why The Environmental Justice Problems Caused By The Army Corps's Nationwide Permits Program Run Much Deeper Than Permit 12, Travis O. Brandon

Law Faculty Scholarship

This Article argues that the United States Army Corps of Engineers’ review of Nationwide Permit 12 (NWP 12) is insufficient to remedy the deeper environmental justice defects embedded within the Nationwide Permit Program as a whole. NWP 12, which facilitates expedited authorization of oil and natural gas pipeline crossings under § 404 of the Clean Water Act, has enabled the construction of fossil fuel infrastructure with minimal site-specific environmental review and no meaningful opportunity for public comment. Drawing on theories of procedural environmental justice, the Article contends that the structure of the Nationwide Permit Program systematically disadvantages communities of color …

Hidden Until The End: The Need To Inform Medicaid Enrollees Of Estate Recovery Costs Before Their Death, Ashley Bassel Griffith

Law Faculty Scholarship

This Article examines the Medicaid estate recovery program and argues that its current notice framework fails to provide meaningful disclosure to Medicaid enrollees regarding the financial consequences of long-term services and supports (LTSS) coverage. Although Medicaid insures approximately one in five individuals in the United States, it uniquely requires certain beneficiaries—primarily individuals age fifty-five or older receiving LTSS—to repay covered costs from their estates after death. Federal law mandates recovery but does not require states to inform applicants or enrollees of anticipated or accrued estate recovery costs during their lifetimes. As a result, families frequently receive notice of substantial recovery …

Reimagining The Music Industry: In Search Of A More Perfect Union, Loren E. Mulraine

Law Faculty Scholarship

This Article critiques the entrenched business practices of the modern music industry and argues that its prevailing contractual and financial structures disproportionately disadvantage artists. Focusing on ownership of master recordings, unilateral option clauses, controlled composition provisions, recoupment practices, and copyright termination rights under the Copyright Act of 1976, the Article demonstrates how industry norms undermine the economic interests of creators despite rising industry revenues. It contends that artists should receive equity ownership in master recordings, benefit from shorter and more balanced contract terms, obtain full statutory mechanical royalties, and have recoupment calculated at net receipt rates rather than on their …

One's Health Versus One's Right To Vote: How The Covid-19 Pandemic Changed The Legal Landscape Of Absentee/Mail-In Voting In The United States From The 2020-2024 Election Cycles, Tracey B. Carter

Law Faculty Scholarship

This Article examines how the COVID-19 pandemic reshaped the legal framework governing absentee and mail-in voting in the United States from 2020 through the 2024 election cycles. Through a comprehensive review of state statutes, election data, and litigation across multiple jurisdictions, the Article analyzes pre-pandemic absentee voting regimes, emergency modifications implemented during the 2020 election cycle, and post-pandemic developments in 2022 and 2024. It compares states that required an excuse for absentee voting with those adopting no-excuse or all-mail systems and evaluates the surge in mail-in ballot usage during the pandemic. The Article further surveys significant state-level lawsuits challenging absentee/mail-in …

Sweeping General Jurisdiction Under The Specific Jurisdiction Rug: A Doctrinal Map Of The Contraction And Expansion Of Personal Jurisdiction As Told By Ford, Amy L. Moore

Law Faculty Scholarship

This Article provides a doctrinal mapping of the Supreme Court’s modern personal jurisdiction jurisprudence through the lens of Ford Motor Co. v. Montana Eighth Judicial District Court. Tracing the evolution of specific and general jurisdiction from International Shoe through Bristol-Myers Squibb, the Article examines how the Court’s articulation of the “arise out of or relate to” requirement has shifted over time. While Ford purported to clarify the relationship prong of specific jurisdiction, the Article argues that the decision instead destabilizes the doctrinal boundary between specific and general jurisdiction. By reinvigorating the “relate to” language without articulating clear limiting …

Duncan Alford, Setting The Bar For Collegiality And Professionalism, Caroline L. Osborne

Law Faculty Scholarship

Duncan E. Alford (1963 – 2023), lawyer, librarian, scholar, colleague. This essay documents the significant contributions our colleague, Duncan E. Alford, University of South Carolina School of Law made to his profession. Professor Alford’s is remembered for his significant contributions.

Introduction For Roger Williams University Law Review, Symposium Issue, 2023-24, Gregory W. Bowman

Law Faculty Scholarship

No abstract provided.

Victims Of Coercive Plea Bargaining: Defendants Who Give False Testimony For False Pleas, Lucian E. Dervan

Law Faculty Scholarship

This Article synthesizes emerging empirical, doctrinal, and interdisciplinary research demonstrating how coercive plea bargaining practices produce false guilty pleas and false testimony, thereby generating a distinct and often overlooked class of victims within the criminal justice system. Drawing on exoneration data, laboratory-based plea decision studies, and case analyses—including documented wrongful convictions—the authors show that sentencing differentials, mandatory minimum statutes, pretrial detention, attorney advice, and systemic resource constraints can overbear the will of defendants, including the innocent. Contrary to longstanding judicial assumptions that guilty pleas are inherently reliable when entered with counsel, the Article demonstrates that structural incentives embedded in modern …

Managing Threats To Beaches From Storms And Rising Seas, Travis O. Brandon

Law Faculty Scholarship

This Dialogue, published in the Environmental Law Reporter, examines the escalating threats to U.S. beaches from intensified storms and accelerating sea-level rise driven by climate change. Drawing on a January 2023 panel convened by the Environmental Law Institute, the discussion integrates scientific, legal, policy, and community-based perspectives on sustaining beach and dune ecosystems. Panelists outline projected shoreline retreat, sediment dynamics, and modeling tools used to forecast erosion and coastal flooding. They assess the ecological and socioeconomic tradeoffs associated with shoreline armoring, beach nourishment, and coastal development, highlighting how regulatory frameworks—particularly under the Coastal Zone Management Act and Clean Water …

Ultimate Bar Passage Rates: Which Law Schools Are Overperforming And Underperforming Expectations, Jeffrey S. Kinsler

Law Faculty Scholarship

n Ultimate Bar Passage Rates: Which Law Schools Are Overperforming and Underperforming Expectations, Professor Jeffrey S. Kinsler examines whether law schools add measurable value to student bar passage outcomes beyond what would be predicted by entering credentials. Using a three-year dataset (2017–2019) for 186 ABA-approved law schools, the study employs linear regression models to assess the relationship between Median LSAT scores, Median undergraduate GPAs, and ultimate bar passage rates—defined by the ABA as passage within two years of graduation. The analysis confirms that entering credentials are predictive of ultimate bar passage outcomes but also demonstrates that some institutions significantly …

Unintended Repercussions: Copyright Termination And The Punitive Effect Of § 203(A)(3) On The Rights Of Creators, Loren E. Mulraine

Law Faculty Scholarship

This article examines the unintended consequences of the copyright termination provisions under the Copyright Act of 1976, focusing specifically on the restrictive five-year termination window set forth in 17 U.S.C. § 203(a)(3). While Congress intended termination rights to rebalance bargaining power between authors and corporate transferees—particularly in industries such as music publishing and recording—the statutory framework has, in practice, imposed procedural burdens that frequently operate to the detriment of creators. Through historical analysis of U.S. copyright law, including the bifurcated renewal structure of earlier statutes and the legislative development of modern termination rights, the article argues that § 203’s rigid …

Fundamental First Amendment Principles, David L. Hudson Jr.

Law Faculty Scholarship

In Fundamental First Amendment Principles, published in the Northern Illinois University Law Review, David L. Hudson Jr. and Jacob David Glenn distill the complexity of modern free-speech jurisprudence into ten foundational principles that structure First Amendment analysis. The Article emphasizes that the core of the First Amendment lies in protecting criticism of government and prohibiting viewpoint discrimination, while also safeguarding symbolic expression, offensive and unpopular speech, and the right not to speak. At the same time, the authors underscore that not all speech is protected, identifying historically recognized categorical exceptions such as incitement, true threats, obscenity, and defamation. The …

International White-Collar Crime And The Globalization Of Internal Investigations Ten Years Later, Lucian E. Dervan

Law Faculty Scholarship

In International White-Collar Crime and the Globalization of Internal Investigations Ten Years Later, Lucian E. Dervan revisits and reassesses the framework first articulated in his 2011 article examining the risks and structural challenges of cross-border internal corporate investigations

2StetsonBusLRev120 . The article evaluates how four core areas—selection of investigative counsel, cross-border data collection and transfer, employee interactions in varied labor law environments, and disclosure and settlement strategies—have evolved over the past decade in response to intensified global enforcement cooperation, expanding data privacy regimes, and shifting geopolitical dynamics. Dervan demonstrates that while practitioners have grown more sophisticated in navigating privilege …

The Other Bar Hurdle: An Examination Of The Character And Fitness Requirement For Bar Admission, David L. Hudson Jr., Andrea Gemignani

Law Faculty Scholarship

In The Other Bar Hurdle, published in the Mitchell Hamline Law Review, the authors examine the character and fitness requirement as a critical yet under-scrutinized component of attorney licensing. The Article surveys the historical foundations, purposes, and contemporary administration of character and fitness investigations, highlighting their dual aims of protecting the public and safeguarding the integrity of the courts. It then synthesizes extensive scholarly criticism, focusing on concerns about discriminatory origins, lack of transparency, inconsistent application, deterrent effects on prospective applicants, and the disproportionate impact on individuals with criminal records, financial hardship, or mental health histories. While acknowledging …

Essay: A Continuing Constitutional Trend Of Using The First To Interpret The Second, David L. Hudson Jr.

Law Faculty Scholarship

This Essay examines the continuing constitutional trend of using First Amendment principles to interpret and develop Second Amendment doctrine. Beginning with District of Columbia v. Heller, in which the Supreme Court drew multiple analogies between the two amendments, the article traces how lower courts have relied on First Amendment jurisprudence to structure Second Amendment analysis. Courts have borrowed concepts such as the non-absolute nature of constitutional rights, the role of history and tradition, categorical exclusions, tiered standards of scrutiny, adequate alternatives, evidentiary requirements, and doctrines relating to fees, underinclusivity, and geographic limitations. At the same time, courts have rejected …

Parole In Place As A Solution For The Immigration Status Of Immediate Relatives Of U.S. Citizens, Maximiliano Gluzman

Law Faculty Scholarship

This Article examines the structural barriers that prevent many undocumented immigrants—particularly immediate relatives of U.S. citizens—from adjusting their immigration status under current U.S. immigration law. It focuses on the interaction between the Immigration and Nationality Act’s adjustment-of-status requirement that applicants be “inspected and admitted or paroled” and the unlawful presence provisions enacted by the Illegal Immigration Reform and Immigrant Responsibility Act. Together, these rules create a dilemma for many noncitizens who entered the United States without inspection but later become eligible for lawful permanent residence through family petitions: leaving the United States to pursue consular processing triggers the three- or …

Plausible Retaliation: Using Modern Pleading Standards As A Blueprint For First Amendment Retaliation Claims, Amy L. Moore

Law Faculty Scholarship

This Article examines the Supreme Court’s evolving doctrine governing First Amendment retaliatory arrest claims, focusing on the Court’s decision in Nieves v. Bartlett and its imposition of a lack-of-probable-cause requirement as a threshold element. Tracing the doctrinal development from Mt. Healthy City School District Board of Education v. Doyle through Hartman v. Moore, Reichle v. Howards, Lozman v. City of Riviera Beach, and Nieves, the Article argues that the Court improperly imported retaliatory prosecution logic into the arrest context without adequately accounting for modern pleading standards under Twombly and Iqbal. The Article contends that requiring …

Arkansas Practice Materials: A Selective Annotated Bibliography, Jessie Wallace Burchfield, Melissa Serfass

Law Faculty Scholarship

Whether you are a legal professional or a novice legal researcher, this annotated bibliography of Arkansas practice materials provides current and relevant state-specific information about available resources. The bibliography integrates online and print resources, grouped by topic rather than format. Each source is annotated with helpful information.

Detailed information about primary legal materials such as court cases, statutes and administrative regulations is included. Information about secondary sources such as treatises, practice manuals, forms, and websites, is also covered.

It is organized in five main sections: Primary Materials, Government Resources, State Specific Resources, General Jurisprudence, and Practice Materials by Topic.

A Human Being Wrote This Law Review Article: Gpt-3 And The Practice Of Law, Amy B. Cyphert

Law Faculty Scholarship

Artificial intelligence tools can now “write” in such a sophisticated manner that they fool people into believing that a human wrote the text. None are better at writing than GPT-3, released in 2020 for beta testing and coming to commercial markets in 2021. GPT-3 was trained on a massive dataset that included scrapes of language from sources ranging from the NYTimes to Reddit boards. And so, it comes as no surprise that researchers have already documented incidences of bias where GPT-3 spews toxic language. But because GPT-3 is so good at “writing,” and can be easily trained to write in …

Do Courts Have Jurisdiction To Consider Questions Of Fact To Determine Whether A Noncitizen Is Entitled To Eligibility For Discretionary Relief From Removal?, David L. Hudson Jr.

Law Faculty Scholarship

This article previews Patel v. Garland, a United States Supreme Court case addressing the scope of federal court jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i), as amended by the REAL ID Act. The central question is whether federal courts retain jurisdiction to review nondiscretionary factual determinations underlying eligibility for discretionary relief from removal, or whether the statute’s bar on reviewing “any judgment” precludes judicial review of such threshold findings. The case arises from the denial of adjustment of status to Pankajkumar Patel, deemed inadmissible for allegedly falsely representing himself as a U.S. citizen on a driver’s license application. Both petitioner …

Does A State Violate Rluipa By Prohibiting An Inmate's Pastor From Laying Hands On Him And Audibly Praying During The Execution Process?, David L. Hudson Jr.

Law Faculty Scholarship

This article examines Ramirez v. Collier, a United States Supreme Court case addressing the scope of religious liberty protections afforded to death-row inmates under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The case centers on whether Texas prison officials violate RLUIPA by prohibiting an inmate’s pastor from laying hands on him and praying audibly during the execution process. The dispute requires the Court to evaluate (1) whether such prohibitions substantially burden sincerely held religious beliefs, (2) whether the state satisfies RLUIPA’s strict scrutiny standard by demonstrating a compelling governmental interest advanced through the least restrictive …

A Telehealth Explosion: Using Lessons From The Pandemic To Shape The Future Of Telehealth Regulation, Deborah R. Farringer

Law Faculty Scholarship

This Article examines the dramatic expansion of telehealth during the COVID-19 public health emergency and argues that the pandemic created a unique regulatory laboratory for evaluating longstanding legal and economic barriers to telehealth adoption. Prior to COVID-19, telehealth growth was constrained by a complex web of state licensure requirements, physician–patient relationship rules, federal prescribing restrictions (including the Ryan Haight Act), Medicare geographic and originating-site limitations, and inadequate reimbursement structures. In response to the pandemic, federal and state governments issued sweeping waivers that relaxed privacy enforcement, expanded reimbursement, eased prescribing limitations, and temporarily dismantled geographic and site-of-service constraints.

Drawing on the …

The Roberts Court Its First Amendment Free Expression Jurisprudence: 2005-2021, David L. Hudson Jr.

Law Faculty Scholarship

This Article, Fundamental First Amendment Principles, distills the complexity of First Amendment jurisprudence into ten core principles designed to guide students, lawyers, and scholars through what is often described as a labyrinthine body of law. Recognizing that free-speech doctrine lacks a single unifying framework, the authors identify foundational commitments that structure constitutional analysis, including the protection of criticism of government, the strong prohibition against viewpoint discrimination, the safeguarding of symbolic and offensive expression, and the recognition that not all speech is protected. The Article also emphasizes doctrines protecting the right not to speak, freedom of association, and the contextual …

Bridges To Judicial History, Alberto R. Gonzales

Law Faculty Scholarship

In Bridges to Judicial History, Alberto R. Gonzales reflects on the enduring legacy of Judge Reynaldo Guerra Garza and Justice Raul A. Gonzalez, Jr., two pioneering Mexican American jurists whose careers transformed the landscape of the Texas and federal judiciaries. Tracing their shared roots in South Texas and their rise from modest beginnings, the article situates both men as institutional “bridges” between cultures, generations, and eras of legal opportunity. Garza’s historic appointments as the first Mexican American federal district judge and later the first Mexican American on a federal circuit court, along with Gonzalez’s service as the first Hispanic …

Contemporary Issues In Administrative Law, Amy L. Moore

Law Faculty Scholarship

This symposium panel discussion, published in the Belmont Law Review, examines contemporary issues in Tennessee administrative law through the perspectives of an administrative law judge, a state agency general counsel, and an attorney from the Tennessee Attorney General’s Office

8BelmontLRev581 . The panel explores the evolving scope of judicial review, statutory deference to agency decision-making under the Tennessee Uniform Administrative Procedures Act (UAPA), and the practical implications of recent legislative changes expanding venue for judicial review. Panelists analyze the mechanics and challenges of state rulemaking, including executive oversight, Attorney General review for legality and constitutionality, legislative approval through the …

The Supreme Court's Worst Decision In Recent Years--Garcetti V. Ceballos, The Dred Scott Decision For Public Employees, David L. Hudson Jr.

Law Faculty Scholarship

The United States Supreme Court decision of Garcetti v. Ceballos deserves its rightful place in the Court’s hall of shame. In Garcetti, the Court issued a decision that serves as a Dred Scott-type ruling for public employees, diminishing their free speech rights to an unacceptable level. The Court created a categorical rule that public employees have no free speech rights when engaged in official, job-related speech.

Under Garcetti, it does not matter how valuable an employee’s speech is, how much corruption that speech exposes, or whether the speech informs the public regarding an important issue. Instead, the five-justice majority focused …

The Art Of The Matter: A Linguistic Analysis Of Public Art Policy In Confederate Monument Removal Case Law, Kristi Arth

Law Faculty Scholarship

In the wake of such tragedies as the Charleston, South Carolina mass shooting, the deadly Unite the Right Rally, and the death of George Floyd, various communities have engaged in efforts to remove Confederate monuments from public spaces. These removal efforts frequently result in litigation focused on ownership rights, government speech, and other claims. This article asks what responsibility the judiciary and litigants have to acknowledge that Confederate monuments—for better or for worse—are creations of public art.
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/="/">Whether the monuments stay or go at the end of a given lawsuit, the outcome affects the public art policy of …