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Articles 61 - 90 of 226
Full-Text Articles in Legal Writing and Research
Ida B. Wells: Fearless Journalist From Memphis Who Changed The World, David L. Hudson Jr.
Ida B. Wells: Fearless Journalist From Memphis Who Changed The World, David L. Hudson Jr.
Law Faculty Scholarship
"Today's climate features hostility toward freedom of the press and negative attitudes toward journalists ... [T]here was a time when journalists were admired for their fearless pursuit of the truth and their exposure of corruption." This article provides an overview of the life and work of Ida B. Wells, particularly her work as a journalist and activist.
Freedom Now Or A Future Later: Pitting The Lasting Implications Of Collateral Consequences Against Pretrial Detention In Decisions To Plead Guilty, Lucian E. Dervan
Freedom Now Or A Future Later: Pitting The Lasting Implications Of Collateral Consequences Against Pretrial Detention In Decisions To Plead Guilty, Lucian E. Dervan
Law Faculty Scholarship
This article examines whether informing defendants about the collateral consequences of criminal convictions influences their decisions to plead guilty, particularly when those future sanctions compete with the immediate incentive of release from pretrial detention. Drawing on prospect theory and temporal discounting theory, the authors hypothesize that delayed collateral consequences will exert limited influence when weighed against certain and immediate gains, such as freedom from jail. Across two experimental studies manipulating guilt status, pretrial detention, and the presentation of collateral consequences, results demonstrate that actual guilt strongly predicts plea decisions, but pretrial detention significantly increases the likelihood of guilty pleas—especially among …
Losing The Spirit Of Tinker V. Des Moines And The Urgent Need To Protect Student Speech, David L. Hudson Jr.
Losing The Spirit Of Tinker V. Des Moines And The Urgent Need To Protect Student Speech, David L. Hudson Jr.
Law Faculty Scholarship
This essay first examines the Tinker case and reminds readers of the powerful language Justice Fortas used in his majority opinion. It explains that the test from Tinker was designed to be a speech-protective standard for student litigants. The second part of the essay evaluates several recent cases, which demonstrate that the once speech-protective standard in Tinker has become a test that is often favorable and deferential to school officials embroiled in student, free-speech controversies.
It Is A Mindboggling Dilemma: To Play Or Not To Play Youth Sports Due To Concussion Risks?, Tracey Carter
It Is A Mindboggling Dilemma: To Play Or Not To Play Youth Sports Due To Concussion Risks?, Tracey Carter
Law Faculty Scholarship
Concussions and their long term effects resulting from football collisions have recently entered the forefront of social debate. Movies like Concussion as well as high-profile lawsuits due to post-concussion health effects have casted a spotlight on brain injuries at the collegiate and professional level. However, this debate has equal application in youth sports—recent studies show that sports-related concussions at the elementary, middle, and high school levels are equally concerning. Youth sports are safer when fewer athletes suffer from sports-related concussions. But litigation is not the best avenue to make youth sports safer. Youth sports can be improved by: 1) primary …
From Guns That Do Not Shoot To Foreign Staplers: Has The Supreme Court's Materiality Standard Under Escobar Provided Clarity For The Health Care Industry About Fraud Under The False Claims Act?, Deborah R. Farringer
From Guns That Do Not Shoot To Foreign Staplers: Has The Supreme Court's Materiality Standard Under Escobar Provided Clarity For The Health Care Industry About Fraud Under The False Claims Act?, Deborah R. Farringer
Law Faculty Scholarship
As federal district courts and courts of appeals attempt to apply the Supreme Court’s dictates in Universal Health Services, Inc. v. U.S. ex rel. Escobar, it is necessary to ask whether the Court succeeded in easing the complexity of this aspect of the Federal Claims Act (FCA). Have lower courts been able to consistently apply the new standards to assess materiality? Or, has the opinion, which arguably both broadened and narrowed application of the implied false certificate theory and when liability might attach, further muddied the waters for courts and parties attempting to determine whether behavior is of the sort …
The Computer Made Me Do It: Is There A Future For False Claims Act Liability Against Electronic Health Record Vendors?, Deborah R. Farringer
The Computer Made Me Do It: Is There A Future For False Claims Act Liability Against Electronic Health Record Vendors?, Deborah R. Farringer
Law Faculty Scholarship
Since the advent of the movement toward the use of electronic medical records, an axiom in the promotion of electronic health records (EHRs) has been the idea that the use of EHRs will reduce medical errors. Certainly, there are countless examples of how technology can improve the health care experience and aid providers in reducing medical errors, including errors of medication administration, medication management, access to decision support tools, telemedicine, immediate access to diagnostic tests and other clinical information and treatment results—just to name a few. Even with such improvements, however, EHRs have not entirely eliminated medical errors and new …
Presidential Powers, Immunities, And Pardons, Alberto R. Gonzales
Presidential Powers, Immunities, And Pardons, Alberto R. Gonzales
Law Faculty Scholarship
This Article intends to clarify some of the more difficult legal issues in our nation’s separation of powers jurisprudence. In order to afford the President the flexibility and discretion necessary to discharge presidential duties, the courts are almost certainly going to recognize total immunity from the criminal process for the President with respect to official conduct. The treatment of unofficial conduct is less predictable. Based on precedent and our nation’s founding principles of equal justice and fairness, the courts are likely to hold that a sitting President is not above the law and thus does not enjoy immunity from criminal …
First Amendment Tests From The Burger Court: Will They Be Flipped?, David L. Hudson Jr.
First Amendment Tests From The Burger Court: Will They Be Flipped?, David L. Hudson Jr.
Law Faculty Scholarship
This article provides an overview of the Lemon test, Miller test, and the Central Hudson test, assessing how they fared in subsequent years, and offers thoughts on their continuing vitality.
Essay: Justice Thurgood Marshall, Great Defender Of First Amendment Free-Speech Rights For The Powerless, David L. Hudson Jr.
Essay: Justice Thurgood Marshall, Great Defender Of First Amendment Free-Speech Rights For The Powerless, David L. Hudson Jr.
Law Faculty Scholarship
This essay explains that Justice Thurgood Marshall’s passionate defense of freedom of expression can be seen most clearly in his defense of free-speech rights even when the government acts not as sovereign, but as warden, employer, or educator. In other words, Marshall’s commitment to free-speech is shown most forcefully by how he consistently protected the free-expression rights of inmates, public employees, and public school students.
Thirty Years Of Hazelwood And Its Spread To Colleges And University Campuses, David L. Hudson Jr.
Thirty Years Of Hazelwood And Its Spread To Colleges And University Campuses, David L. Hudson Jr.
Law Faculty Scholarship
This Article first examines K-12 student speech law before Hazelwood School District v. Kuhlmeier and then discusses the Hazelwood decision. Next, the article focuses on the spread of Hazelwood and its deferential standard to the college and university level. This section examines cases from five different areas where the standard has been utilized with increasing frequency. Finally, the Article offers a few concluding thoughts on the Hazelwood standard and why it should be limited, if not interred.
Attorney Advertising In 'The Litigators' And Modern-Day America: The Continued Importance Of The Public's Need For Legal Information, David L. Hudson Jr.
Attorney Advertising In 'The Litigators' And Modern-Day America: The Continued Importance Of The Public's Need For Legal Information, David L. Hudson Jr.
Law Faculty Scholarship
This Essay addresses the phenomenon of attorney advertising from several vantage points. Part II of the Essay addresses how best-selling author John Grisham depicts attorney advertising in his great book The Litigators. Part III discusses the legal framework of how the U.S. Supreme Court protected attorney advertising as a form of protected commercial speech. Part IV addresses how the states and bar regulators have treated attorney advertising. Finally, Part V addresses the recent Association of Professional Responsibility Lawyers Report and the American Bar Association’s proposed changes to the ABA Model Rules of Professional Conduct regarding attorney advertising. Part V briefly …
Law Schools, Bar Passage, And Under And Over-Performing Expectations, Jeffrey S. Kinsler, Jeffrey Omar Usman
Law Schools, Bar Passage, And Under And Over-Performing Expectations, Jeffrey S. Kinsler, Jeffrey Omar Usman
Law Faculty Scholarship
The focus of this article is to build a foundation for exploring whether there is a meaningful solution to help address the bar passage problem that can be found looking to the legal education programs of law schools that are particularly successful in preparing students to pass the bar exam. To accomplish this aim, a critical and essential step is to begin to identify the law schools that are adding the most in terms of assisting their students to pass the bar exam. That first critical step is the step taken by this article. A common-sense assumption, which finds support …
Even When You Win, You Lose: Executive Order 13769 & The Depressing State Of Procedural Due Process In The Context Of Immigration, Amy L. Moore
Law Faculty Scholarship
This Article examines the procedural due process implications of Executive Order 13769, the 2017 “travel ban,” within the broader historical framework of Supreme Court immigration jurisprudence. Although the Ninth Circuit suggested that the Order might violate procedural due process, the Article argues that such a claim, even if successful, would offer limited substantive protection. Tracing the development of the plenary power doctrine from Chae Chan Ping through Knauff, Mezei, Fleuti, Plasencia, and Zadvydas, the Article demonstrates that procedural due process in immigration law has historically been constrained by deference to the political branches. Even when …
Stringent Yet Flexible: Circuit Courts' Use Of The Substantial Evidence Test In Asylum Cases, Amy L. Moore
Stringent Yet Flexible: Circuit Courts' Use Of The Substantial Evidence Test In Asylum Cases, Amy L. Moore
Law Faculty Scholarship
This Article examines how federal circuit courts apply the substantial evidence test when reviewing asylum determinations made by immigration judges and the Board of Immigration Appeals. After outlining the statutory framework governing asylum under the Immigration and Nationality Act—including refugee status, nexus requirements, credibility determinations, and discretionary relief—the Article traces the historical development of the substantial evidence standard in immigration adjudication. Drawing on original empirical data from every circuit court of appeals, the Article categorizes circuits along a spectrum from “rigorous review” to “cursory check,” based on remand rates and depth of analytical engagement. The study evaluates how statutory changes, …
Police-Worn Body Cameras: An Antidote To The 'Ferguson Effect'?, Alberto R. Gonzales, Donald Q. Cochran
Police-Worn Body Cameras: An Antidote To The 'Ferguson Effect'?, Alberto R. Gonzales, Donald Q. Cochran
Law Faculty Scholarship
You are a police officer working the night shift in a major U.S. city. In the dark hours of the early morning, you come across a group of young males in a part of the city known for criminal activity. When they see your patrol car, the young men stop what they are doing and look away quickly. All of your training, as well as the instincts that you have developed over years patrolling these same streets, tells you to stop and at least attempt to start a conversation with the group to determine whether criminal activity is afoot and …
Challenges Of Multi-State Series And Framework For Judicial Analysis, Alberto R. Gonzales, J. Leigh Griffith
Challenges Of Multi-State Series And Framework For Judicial Analysis, Alberto R. Gonzales, J. Leigh Griffith
Law Faculty Scholarship
A variation of the common limited liability company (LLC) represents the newest form of entity enterprise on the business scene today. This is the Series Limited Liability Company (Series LLC). Under a Series LLC, the single LLC may establish and contain within itself separate series or cells. These cells or series are referred to by the Drafting Committee for the Limited Liability Company Protected Series Act of the National Conference of Commissioners on Uniform State Laws (NCCUSL) as “Protected Series.” Each such separate Protected Series is treated as an enterprise separate from each other and from the Series LLC itself. …
Series Llcs Part 2 - Current Status, Multi-State Issues And Potential Uniform Limited Liability Company Protected Series Act, Alberto R. Gonzales, J. Leigh Griffith
Series Llcs Part 2 - Current Status, Multi-State Issues And Potential Uniform Limited Liability Company Protected Series Act, Alberto R. Gonzales, J. Leigh Griffith
Law Faculty Scholarship
Part two of a two part article discussing the existing impediments to greater use of Series LLCs including taxation, bankruptcy, the Uniform Commercial Code and issues concerning multi-state activities and how these matters are being addressed by the National Conference of Commissioners on Uniform State Laws (NCCUSL).
Cybersecurity Report Identifies Unique Challenges To Tackling Cybersecurity In Health Care, Deborah R. Farringer
Cybersecurity Report Identifies Unique Challenges To Tackling Cybersecurity In Health Care, Deborah R. Farringer
Law Faculty Scholarship
A discussion of the Health Care Industry Cybersecurity Task Force report regarding the preparedness of the health care industry to respond to ever increasing cybersecurity threats.
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.
The Legal Research Plan And The Research Log: An Examination Of The Role Of The Research Plan And Research Log In The Research Process, Caroline L. Osborne
The Legal Research Plan And The Research Log: An Examination Of The Role Of The Research Plan And Research Log In The Research Process, Caroline L. Osborne
Law Faculty Scholarship
This paper reviews the current status of the concept of the legal research plan. It summarizes the basic elements of the legal research plan, reviews the current literature and recommends a design of a plan for use in first year legal research programs and by novice researchers. Also, it considers the use of the research log in the research process.
Justice Davide Souter And His Care For First Amendment Freedoms, David Hudson
Justice Davide Souter And His Care For First Amendment Freedoms, David Hudson
Law Faculty Scholarship
Justice David Souter left a remarkable legacy during his time on the U.S. Supreme Court. Nowhere was this more evident than in his sensitivity and solicitude for First Amendment freedoms. This essay examines Justice Souter’s First Amendment legacy primarily through his jurisprudence in three areas: (1) the secondary effects doctrine; (2) public employee free-speech cases; and (3) Establishment Clause opinions.
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 …
Unh School Of Law Ip Library: 20th Anniversary Reflection On The Only Academic Ip Library In The United States, Jon R. Cavicchi
Unh School Of Law Ip Library: 20th Anniversary Reflection On The Only Academic Ip Library In The United States, Jon R. Cavicchi
Law Faculty Scholarship
[Excerpt] The UNH School of Law Intellectual Property Library celebrates its twentieth anniversary this year. It is a fortuitous time for this look back and for strategic considerations for the future. This anniversary comes at a time in the history of legal education when conditions over the past few years have intensified the analysis of mission and resources for law school libraries. This article is a retrospective review of the history and dynamics surrounding the founding and first twenty years of growth. It is also an analysis of the future growth and mission of the IP Library during times that …
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 …