Law Commons^™

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

Racial Disparities In South Carolina's Juvenile Justice System: Why They Exist And How They Can Be Reduced, Grace E. Driggers

South Carolina Law Review

No abstract provided.

Should I Stay Or Should I Go? South Carolina's Nonlawyer Judges, Christel Purvis

South Carolina Law Review

No abstract provided.

The Shadow Bargainers, Jenny Roberts, Ronald F. Wright, Betina Cutaia Wilkinson

Articles in Law Reviews & Other Academic Journals

Plea bargaining happens in almost every criminal case, yet there is little empirical study about what actually happens when prosecutors and defense lawyers negotiate. This Article looks into the bargaining part of plea bargaining. It reports on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations.

The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the "shadow of the trial." This is a theory that some defenders embrace and others reject. Describing the factors they believe …

Making A Declaration: The Rise Of Declaratory Judgment Actions And The Insurer As Regulator In The Fight To End Sex Trafficking In The Hotel Industry, Lori N. Ross

Faculty Scholarship

No abstract provided.

Symposium: Expanding Compassion Beyond The Covid-19 Pandemic, Jenny Roberts

Articles in Law Reviews & Other Academic Journals

Compassionate relief matters. It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children. It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences. It matters even when no crisis looms, but simply when continued incarceration would be "greater than necessary" to achieve the ends of justice.

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.

Transitional Justice As Communication: Why Truth Commissions And International Criminal Tribunals Need To Persuade And Inform Citizens And Leaders, And How They Can, Jamie O'Connell

South Carolina Law Review

No abstract provided.

Marijuana Taxation: Theory And Practice, Benjamin Leff

Articles in Law Reviews & Other Academic Journals

Marijuana legalization creates a host of complex legal problems, not the least of which is how to best tax the emerging legal market. This Essay attempts to bridge the gap between tax theory and marijuana policy to make some modest claims. First, it roots the discussion of state-level marijuana taxation in the theoretical distinction between ordinary revenue-raising taxes and "Pigouvian" or regulatory taxes. It makes the somewhat controversial claim that the best taxing strategy for states is to attempt to capture as much of the marijuana legalization premium as possible without driving consumers into the illegal market and that other …

The New Federalism Frontier In Marijuana Legalization And Decriminalization, Oliver Roberts

South Carolina Law Review

No abstract provided.

Fraud Law And Misinfodemics, Wes Henricksen

Faculty Scholarship

No abstract provided.

Structural Sensor Surveillance, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional question: Does the creation of continuously-recording, aggregated, long-term data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant. This Article uses the innovation of smart …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

Can You Hear Me Now: The Impacts Of Prosecutorial Call Monitoring On Defendants' Access To Justice, Hope L. Demer

South Carolina Law Review

No abstract provided.

Revenge Against Robots, Christina Mulligan

South Carolina Law Review

No abstract provided.

Dignity Restoration And The Chicago Police Torture Reparations Ordinance, Andrew S. Baer

Chicago-Kent Law Review

A recent municipal ordinance giving reparations to survivors of police torture in Chicago represents an unprecedented effort by a city government to repair damage wrought by decades of police violence. Between 1972 and 1991, white detectives under Commander Jon Burge tortured confessions from over 118 black criminal suspects on the city’s South and West Sides. Responding to the needs of affected communities, a coalition of torture survivors, their families, civil rights attorneys, and community activists pushed the reparations bill through the City Council on May 6, 2015. Representing the holistic approach favored by survivors, the $5 million reparations package awarded …

Dignity Takings In Gangland’S Suburban Frontier, Lua Kamál Yuille

Chicago-Kent Law Review

This paper engages the evolving dignity takings framework, first developed by Bernadette Atuahene, in the context of contemporary American street gangs (e.g. Crips, Bloods, Latin Kings, etc.). Contrary to most popular accounts, it starts with a reimagined and complicated notion of street gangs that emphasizes not their secondary or tertiary violence and criminality but their primary function as corporate institutions engaged in the sustained, transgressive creation of alternative markets for the creation of the types of property interests that scholars have associated with the development and pursuit of identity and “personhood.” From this perspective, the paper applies the dignity takings …

Dignity Takings In The Criminal Law Of Seventeenth-Century England And The Massachusetts Bay Colony, John Felipe Acevedo

Chicago-Kent Law Review

When does a punishment for crime cross from being a legitimate goal of the state to a dignity taking? From the Norman Conquest until the middle of the eighteenth-century, the Common Law provided that in addition to execution, the property of convicted felons or traitors was forfeited to the crown and their blood corrupted so that their heirs could not inherit. I argue this is a clear instance of dignity takings. The colonists who traveled to Massachusetts Bay wanted a fresh start and so sought to create a model society based on Biblical law. Using around 6,000 criminal cases from …

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Hope [Reviews], Wendy A. Bach

Scholarly Works

No abstract provided.

A Meaningful Opportunity For Release: Resentencing Hearings For Juvenile Offenders Sentenced To Life Without Parole Following Aiken V. Byars, Robert M. Dudek

South Carolina Law Review

No abstract provided.

To Have And To Hold: Factors To Consider Before Divorcing South Carolina From The Concealed Weapons Permit Requirement, Joseph D. Spate

South Carolina Law Review

No abstract provided.

Exploring The Parameters Of A Child's Right To Redemption: Some Thoughts, Katherine Hunt Federle

South Carolina Law Review

No abstract provided.

A Lost Opportunity For Sentencing Reform: Plea Bargaining And Barriers To Effective Assistance, Margaret Etienne

South Carolina Law Review

No abstract provided.

Flying Over The Cuckoo's Nest: How The Mentally Ill Landed Into An Unconstitutional Punishment In South Carolina, Elle Klein

South Carolina Law Review

No abstract provided.

Coram Nobis And State V. Stinney: Why South Carolina Should Revitalized America's Legal Hail Mary, Kathleen M. Bure

South Carolina Law Review

No abstract provided.

Land Of The Free, Home Of The Slave: Human Trafficking Legislation In South Carolina, Caroline A. Ross

South Carolina Law Review

No abstract provided.

Two Concepts Of Freedom In Criminal Jurisprudence, Roni M. Rosenberg

Roni M Rosenberg

The goal of this essay is to identify and discuss two aspects of liberty by examining the distinction between act and omission in criminal jurisprudence. Criminal law makes a significant distinction between harmful actions and harmful omissions and, consequently, between killing and letting die. Any act that causes death is grounds for a homicide conviction -- subject, of course, to the existence of the other elements necessary for establishing criminal liability, such as causation and mens rea. However, liability for death by omission is subject to the additional identification of a duty to act. In other words, the defendant …

Is Miranda Good News Or Bad News For The Police: The Usefulness Of Empirical Evidence, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. Supreme Court’s landmark case of Miranda v. Arizona created a culture in which police officers regularly warn arrestees that they have a right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to an attorney, and that if they cannot afford one, an attorney will be appointed to them. These Miranda warnings have a number of possible effects. The warnings are meant to inform suspects about negative consequences associated with speaking to the police without the assistance of counsel. In this sense they …

Tracing The Roots Of The Criminalization Of Poverty [Reviews], Wendy A. Bach

Scholarly Works

No abstract provided.