Law Commons^™

Turner In The Trenches: A Study Of How Turner V. Rogers Affected Child Support Contempt Proceedings, Elizabeth Patterson

Faculty Publications

In its 2011 ruling in Turner v. Rogers, the Supreme Court held that a nonpaying child support obligor may not be incarcerated in a civil contempt proceeding if he did not have the ability to pay the ordered support or the purge necessary to regain his freedom. The Turner case arose in South Carolina, a state in which civil contempt proceedings are a routine part of the child support enforcement process. The author observed child support contempt proceedings in South Carolina both before and after the Turner decision to assess the extent to which indigent obligors were being held in …

Terry V. Ohio And The (Un)Forgettable Frisk, Seth W. Stoughton

Faculty Publications

No abstract provided.

Abandoning The Federal Role In Education, Derek Black

Faculty Publications

In December 2015, Congress passed the Every Student Succeeds Act (ESSA), which redefined the role of the federal government in education. The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. But in overturning those aspects of the NCLB, Congress failed to devise a system that was any better. Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in fifty years, the federal government lacks the ability to prompt improvements in student achievement and to demand equal resources for …

Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997- 2012, Ann M. Eisenberg

Faculty Publications

The Supreme Court’s May 2016 decision in Foster v. Chatman involved smoking-gun evidence that the State of Georgia discriminated against African-Americans in jury selection during Foster’s 1987 capital trial. Foster was decided on the thirtieth anniversary of Batson v. Kentucky, the first in the line of cases to prohibit striking prospective jurors on the basis of their race or gender. But the evidence of discrimination for Batson challenges is rarely so obvious and available as it was in Foster.

Where litigants have struggled to produce evidence of discrimination in individual cases, empirical studies have been able to assess jury selection …

Grid Modernization And Energy Poverty, Shelley Welton

Faculty Publications

Grid modernization holds the alluring promise of rationalizing electricity pricing, saving consumers money, and improving environmental quality all at the same time. Yet, we have seen only limited and patchwork regulatory initiatives towards significant grid modernization in the United States. Outside of a few leading states, state energy regulators appear loath to embrace fullthroated versions of the project. This article argues that the underdiscussed problem of energy poverty in the United States is a critical contributing factor in the gap between grid modernization’s possibilities and our regulatory reality. Only by explicitly understanding how the issues of grid modernization and energy …

Zika And The Failure To Act Under The Police Power, Jacqueline Fox

Faculty Publications

Zika is a mosquito-borne and sexually transmitted disease that is a dangerous threat to pregnant women, causing catastrophic birth defects in a large percentage of fetuses when their mothers become infected while pregnant. It raises numerous issues related to abortion, birth control, poverty, and women’s control over their procreative choices. While the United States received ample warning from January 2016 onward that it was at risk of local transmission of this virus and public health officials at all levels generally behaved properly, the state and federal legislative responses in the summer of 2016 were entirely inadequate. For example, no state …

Law As Instrumentality, Jeremiah A. Ho

Faculty Publications

Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, …

A First Amendment Deference Approach For Reforming Anti-Bullying Laws, Emily Suski

Faculty Publications

This Article examines the anti-bullying laws and their response to the problem of bullying in light of both the nature of the problem itself, the interventions the laws call for, and the laws’ First Amendment implications. Bullying has many varied, negative consequences, some tragic, and is widespread. Yet, the anti-bullying laws disproportionately focus schools’ responses to bullying on school exclusion, meaning suspending, expelling or otherwise excluding students who bully from school. This is so even though social science literature has found school exclusion ineffective and sometimes counterproductive as a method for addressing bullying. What is more, because much of bullying …

The Elephant In The Room Or The Elephant In The Mousehole? The Legal Risks (And Promise) Of Climate Policy Under §115 Of The Clean Air Act, Nathan Richardson

Faculty Publications

Climate policy in the United States is near an inflection point. With Congress uninterested in new legislation, focus at the federal level for most of the last decade has been on the Clean Air Act, but whether regulation under that old statute can successfully address carbon emissions remains unclear. Under President Obama, the EPA has focused on two core programs-vehicle emissions standards and the Clean Power Plan, aimed at fossil fuel power plants. But with the latter of these programs under legal challenge, and both falling short of the flexible, economy-wide policy many believe is necessay, academic and policy attention …

The Vanishing Common Law Judge, Neal Devins, David Klein

Faculty Publications

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in …

Carpenter Privacy Case Vexes Justices, While Tech Giant Microsoft Battles Government In Second U.S. Supreme Court Privacy Case With International Implications, Richard J. Peltz-Steele

Faculty Publications

Fall 2017 saw a major privacy case with international implications reach the U.S. Supreme Court this term, Carpenter v. United States. Now a second such case pits the Government against Big Tech in United States v. Microsoft. Carpenter is a criminal case involving federal seizure of cell phone location data from service providers. Arising under the “reasonable grounds” provision of the Stored Communications Act (SCA), the case accentuates Americans’ lack of constitutional protection for personal data in third-party hands, in contrast with emerging global privacy norms. The second major privacy case headed for Supreme Court decision in 2018 also arises …

Emerging Adults: A New Understanding Of Millennial Law Students, Rebecca C. Flanagan

Faculty Publications

The challenges facing emerging adults in law school can be some of the vexing for Academic Success professionals if these students are assumed to have the adult life experiences of prior generations of law students. However, their challenges can be some of the simplest to solve when Academic Success professionals are aware of trends in law school admissions and undergraduate education. Academic Success professionals have the tools to work with doctrinal or substantive professors to provide context to the difficulties students are experiencing with understanding class discussions.

Your Mission, Should You Choose To Accept It: Taking Law School Mission Statements Seriously, Irene Scharf, Vanessa Merton

Faculty Publications

A law school can best achieve excellence and have the most effective academic program when it possesses a clear mission, a plan to achieve that mission, and the capacity and willingness to measure its success or failure. Absent a defined mission and the identification of attendant student and institutional outcomes, a law school lacks focus and its curriculum becomes a collection of discrete activities without coherence.

Alienation And Reconciliation In Social-Ecological Systems, Ann M. Eisenberg

Faculty Publications

After rancher Ammon Bundy’s forceful occupation of the Malheur National Wildlife Refuge to protest federal “tyranny” in 2016, mainstream commentary dismissed Bundy and his supporters as crackpots. But the dismissal of the occupation as errant overlooked this event’s significance. This conflict: 1) involved a clash over scarce natural resources, of the type that will likely gain more frequency and intensity in the face of climate change; and 2) highlighted the popular idea that the federal government and federal environmental regulations are the enemy of the (white, rural, male) worker. This thread of antienvironmental, anti-federal alienation among many working people has …

Tax And Social Context: Legal Fictions And Tax, Tessa R. Davis

Faculty Publications

No abstract provided.

The Tax-Immigration Nexus, Tessa R. Davis

Faculty Publications

Tax and immigration law have a shared interest in defining community. In order to implement a tax, we must know who belongs to the taxable community. At the same time, immigration law must define and administer the requirements for membership in the national community. Despite the differing objectives of tax and immigration law—raising revenue and deciding who may enter, remain, and become a citizen in the United States, respectively—both of these regimes uses a concept of citizenship to define their respective communities. Starting from this common thread of the relevance of citizenship to both immigration and tax law, this Article …

The Strange Life Of Stanley V. Illinois: A Case Study In Parent Representation And Law Reform, Josh Gupta-Kagan

Faculty Publications

This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois—the foundational Supreme Court case that established parental fitness as the constitutional lynchpin of any child protection case. The Article begins with Stanley’s trial court litigation, which illustrates the importance of vigorous parental representation and an effort by the court to prevent Stanley from obtaining an attorney. It proceeds to analyze how family courts applied it (or not) in the years following the Supreme Court’s decision and what factors have led to a recent resurgence of Stanley’s fitness focus.

Despite Stanley’s requirement that states prove …

The School To Prison Pipeline's Legal Architecture: Lessons From The Spring Valley Incident And Its Aftermath, Josh Gupta-Kagan

Faculty Publications

This Article examines the 2015 Spring Valley High School incident – the high-profile arrest of a Columbia, South Carolina high school student for “disturbing schools” in which a school resource officer threw her out of her desk – to identify and illustrate the core elements of the school-to-prison pipeline’s legal architecture, and to evaluate legal reforms in response to growing concern over the pipeline.

The Spring Valley incident illustrates, first, how broad criminal laws transform school discipline incidents into law enforcement matters. Second, it illustrates how legal instruments that should limit the role of police officers assigned to schools (school …

Do Sagebrush Rebels Have A Colorable Claim? The Space Between Parochialism And Exclusion In Federal Lands Management, Ann M. Eisenberg

Faculty Publications

This Article asks whether the troubling nature of the Sagebrush Rebellion and similar movements (e.g., their violence, antienvironmentalism, and racist overtones) has made us overly dismissive of a kernel of truth in their complaints. Commentators often acknowledge that federal lands management may be “unfair” to local communities, but the ethical and legal characteristics of the unfairness concern remain under-explored. Although the Sagebrush Rebellion and federal lands communities are far from synonymous, substantial overlap between the complaints and demands of Sagebrush Rebels and the complaints and demands of many regional local (and state) governments suggests that to explore the one necessitates …

How Government Can Promote Automated Driving, Bryant Walker Smith

Faculty Publications

This Article presents steps that governments can take now to encourage the development, deployment, and use of automated road vehicles. After providing technical and legal context, it describes key administrative, legal, and community strategies to promote automated driving. It concludes by urging policymakers to facilitate automated driving in part by expecting more from today’s drivers and vehicles.

Averting Educational Crisis: Funding Cuts, Teacher Shortages, And The Dwindling Commitment To Public Education, Derek Black

Faculty Publications

Recent data shows that two-thirds of states are funding education at lower levels than in 2008. Some states are 20% or more below levels of just a few years earlier. The effect on schools has been devastating. States are only exacerbating the problem by reducing teachers’ rights and benefits. These attacks, combined with funding decreases, have scared many prospective teachers away from the profession. The net result is an extreme shortage of teachers nationwide. When the school year began in 2015, a large number of public schools opened without enough certified teachers to fill classrooms, relying instead on substitutes and …

References To Football In Judicial Opinions And Written Advocacy, Douglas E. Abrams

Faculty Publications

Writing for the Court,Justice Elena Kagan explained that the dual bases of liability, recited in Section 11 of the Securities Act of 1933, are not "an invitation to Monday morning quarterback an issuer's opinions" if the opinions later prove incorrect. The Court thus spurned second-guessing from the relative comfort of hindsight. With her nod to football, justice Kagan employed a rhetorical technique that justices and lower federal and state judges have employed with increased frequency since the early 1970s. In cases with no claims or defenses concerning sports, written opinions help decide or explain issues of law or fact with …