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Full-Text Articles in Law

Declaring, Exploring, Instructing, And (Wait For It) Joking: Tonal Variation In Majority Opinions, Lisa A. Eichhorn Oct 2021

Declaring, Exploring, Instructing, And (Wait For It) Joking: Tonal Variation In Majority Opinions, Lisa A. Eichhorn

Faculty Publications

British literary critic I.A. Richards once defined “tone” as a literary speaker’s attitude toward his or her listener. Borrowing that definition, this article posits that the genre of the majority judicial opinion leaves more room for tonal variation than many scholars have previously theorized. The article first elaborates on the concept of “tone,” distinguishing it from “voice” and “style.” It then reviews the existing scholarship on tone in legal writing and describes the specific dynamics of tone in majority opinions. At that point, the article closely analyzes tonal variation in two 2020 Supreme Court opinions: the majority opinion ...


Beyond “Children Are Different”: The Revolution In Juvenile Intake And Sentencing, Josh Gupta-Kagan Jun 2021

Beyond “Children Are Different”: The Revolution In Juvenile Intake And Sentencing, Josh Gupta-Kagan

Faculty Publications

For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases—when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can be ...


Legal Research & Writing: An Undergraduate Pre-Law Course Design, Rachel Kathleen Strieber Apr 2021

Legal Research & Writing: An Undergraduate Pre-Law Course Design, Rachel Kathleen Strieber

Senior Theses

The purpose of this project-based thesis is to develop an undergraduate pre-law course that teaches legal research and writing (LRW) and to design its respective description, topics, reading materials, sample syllabus document, and a sample lesson plan. The research portion of this thesis will study the pedagogy of LRW and the connection between LRW skills and the students’ success in law school and careers in law. Preparing students to excel in LRW skills prior to law school through the proposed undergraduate pre-law LRW course will yield a stronger performance in a first-year law LRW course to follow and amplify students ...


A Case Study Of Private School Choice And Education Litigation In South Carolina: Safe Grants And Adams V. Mcmaster (S.C. 2020), Lyndsey Katherine Ebener Apr 2021

A Case Study Of Private School Choice And Education Litigation In South Carolina: Safe Grants And Adams V. Mcmaster (S.C. 2020), Lyndsey Katherine Ebener

Senior Theses

The ideology behind private school choice endures in South Carolina. Arguments for parental choice have resurfaced periodically throughout the state’s history, particularly in moments of “crisis.” The current “crisis” moment is the COVID-19 pandemic, which created a perfect storm for the private school choice movement to gain momentum. When Governor McMaster received South Carolina’s emergency education relief funds, he capitalized on this movement with his proposed SAFE Grants program. His intention was for the SAFE Grants program to provide support through one-time tuition grants to low-income families who have children in private schools. Governor McMaster’s announcement incited ...


Us Vs. Wales: Comparing And Improving Refugee Health Policy, Payton Ramsey Apr 2021

Us Vs. Wales: Comparing And Improving Refugee Health Policy, Payton Ramsey

Senior Theses

Inadequate strides have been made to bolster the short and long-term health of growing numbers of refugees awaiting resettlement. The United Nations Higher Commission for Refugees (UNHCR), as well as many countries of resettlement, guarantee the right to health as signatories of the UN 1951 Refugee Convention, but in many situations refugee accessibility to healthcare and health resources is limited by time restrictions on benefits, immigration status, and/or financial circumstances.

This thesis provides a synopsis of the historical roots of current policies and legislative frameworks relating to refugee health for Wales and the US. Through the analysis of governmental ...


The Corridor Of Shame: An Immersed Analysis Of South Carolina Schools, Darren R. Burton Apr 2021

The Corridor Of Shame: An Immersed Analysis Of South Carolina Schools, Darren R. Burton

Senior Theses

This research project discusses school funding instruments of rural and urban schools in South Carolina and uncovers its effect on student academic achievement. Educational achievement is assessed based on report card datasets between 2018 and 2019, containing South Carolina Assessment of State Standards (SCPASS) score data and South Carolina College and Career Ready Assessment (SCREADY) score data. This research project uses a comparative analysis to evaluate each group’s performance in the subjects of English Language Arts and science. The statistical analysis tools that this research project uses include analysis of variance (ANOVA), linear regression analysis, and Microsoft Power BI ...


The Lost Promise Of Disability Rights, Claire Raj Mar 2021

The Lost Promise Of Disability Rights, Claire Raj

Faculty Publications

Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students’ affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws—the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504).

Courts too often overlook the affirmative obligations contained in these two disability ...


Rethinking Grid Governance For The Climate Change Era, Shelley Welton Feb 2021

Rethinking Grid Governance For The Climate Change Era, Shelley Welton

Faculty Publications

The electricity sector is often appropriately called the linchpin of efforts to respond to climate change. Over the next few decades, the U.S. electricity sector will need to double in size to accommodate electric vehicles, at the same time that it transforms to run entirely on clean energy. To drive this transformation, states are increasingly adopting 100% clean energy targets. But fossil fuel corporations are pushing back, seeking to maintain their structural domination of the U.S. energy sector. This article calls attention to one central but under-scrutinized way that these companies impede the clean energy transition: Incumbent fossil ...


Economic Regulation And Rural America, Ann M. Eisenberg Jan 2021

Economic Regulation And Rural America, Ann M. Eisenberg

Faculty Publications

Rural America today is at a crossroads. Widespread socioeconomic decline outside cities has fueled the idea that rural communities have been “left behind.” The question is whether these “left behind” localities should be allowed to dwindle out of existence, or whether intervention to attempt rural revitalization is warranted. Many advocate non-intervention because rural lifestyles are inefficient to sustain. Others argue that, even if the nation wanted to help, it lacks the law and policy tools to redirect rural America’s course effectively.

This Article argues that we do have the law and policy tools necessary to address rural socioeconomic marginalization ...


Subverting Title Ix, Emily Suski Jan 2021

Subverting Title Ix, Emily Suski

Faculty Publications

Thousands of sexual assaults happen to children in K–12 public schools each year, but the federal courts regularly allow the schools to do almost nothing in response. Title IX exists to ensure that public schools protect students from sexual assaults, harassment, and other forms of sex discrimination. Yet, the federal courts’ interpretations of Title IX drain its power. The Supreme Court has said that public schools will be liable under Title IX if they act with deliberate indifference to known sexual harassment. The Court’s explanation of “deliberate indifference” proscribes schools’ responses to sexual harassment that indirectly cause or ...


How The Fourth Amendment Frustrates The Regulation Of Police Violence, Seth W. Stoughton Jan 2021

How The Fourth Amendment Frustrates The Regulation Of Police Violence, Seth W. Stoughton

Faculty Publications

Within policing, few legal principles are more widely known or highly esteemed than the “objective reasonableness” standard that regulates police uses of force. The Fourth Amendment, it is argued, is not only the facet of constitutional law that governs police violence, it sets out the only standard that state lawmakers, police commanders, and officers should recognize. Any other regulation of police violence is inappropriate and unnecessary. Ironically, though, the Constitution does not actually regulate the use of force. It regulates seizures. Some uses of force are seizures. This Article explains that a surprising number of others—including some police shootings ...


Moral Bars To Intellectual Property: Theory & Apologetics, Ned Snow Jan 2021

Moral Bars To Intellectual Property: Theory & Apologetics, Ned Snow

Faculty Publications

Various intellectual creations are raising complex moral issues in intellectual property law. Videos of mass shootings made by perpetrators, statues of the Confederacy displayed openly, torture techniques used on criminal detainees, and devices for consuming illegal drugs are only a few examples. These expressive and inventive works pose the question of whether their apparent immoral nature should preclude intellectual property protection. Although courts and scholars have long debated moral values in intellectual property doctrines, the literature is largely silent on the effect of intellectual property theory. The question thus arises: Do the utilitarian, labor-desert, and autonomy theories of intellectual property ...


Black Urban Ecologies And Structural Extermination, Etienne C. Toussaint Jan 2021

Black Urban Ecologies And Structural Extermination, Etienne C. Toussaint

Faculty Publications

Residents of low-income, metropolitan communities across the United States frequently live in “food apartheid” neighborhoods—areas with limited access to nutrient-rich and fresh food. Local government law scholars, poverty law scholars, and political theorists have long argued that structural racism embedded in America’s political economy influences the uneven development of such Black urban ecologies. Accordingly, food justice scholars have called for local governments to develop urban agricultural markets that combat racism in global corporatized food systems by localizing food development. These demands have only amplified during the COVID-19 pandemic, which has ravaged Black communities where residents suffer from preexisting ...


The Operation Of Supervisory Colleges In Eu Banking Supervision: A Case Study Of Soft Law Becoming Hard Law, Duncan E. Alford Jan 2021

The Operation Of Supervisory Colleges In Eu Banking Supervision: A Case Study Of Soft Law Becoming Hard Law, Duncan E. Alford

Faculty Publications

In this paper, I consider the case of supervisory cooperation among bank regulators where voluntary cooperation (soft law) over a period of 50 years has become hard law (regulations and directives) within the European Union. Driven by major international bank failures or financial crises, international standards for prudential supervisory cooperation among bank regulators have steadily developed and become more precise and defined since the early 1970s.


Barring Immoral Speech In Patent And Copyright, Ned Snow Jan 2021

Barring Immoral Speech In Patent And Copyright, Ned Snow

Faculty Publications

In the past three years, the Supreme Court has twice ruled that Congress’s moral bars to trademark protection violate the First Amendment. Those rulings raise a simple question in other areas of intellectual property. Does the First Amendment preclude Congress from denying patent or copyright protection based on a moral reason? Congress, for instance, might deny patent protection for inventions directed toward the consumption of marijuana. Inventors would accordingly choose not to disclose knowledge about those inventions to the public, and the denial would chill their speech. Similarly, Congress would chill speech if it denied copyright protection for moral ...


Icwa’S Irony, Marcia A. Yablon-Zug Jan 2021

Icwa’S Irony, Marcia A. Yablon-Zug

Faculty Publications

The Indian Child Welfare Act (ICWA) is a federal statute that protects Indian children by keeping them connected to their families and culture. The Act’s provisions include support for family reunification, kinship care preferences, cultural competency considerations and community involvement. These provisions parallel national child welfare policies. Nevertheless, the Act is relentlessly attacked as a law that singles out Indian children for unique and harmful treatment. This is untrue but, ironically, it will be if challenges to the ICWA are successful. To prevent this from occurring, the defense of the Act needs to change. For too long, this defense ...


Blackness As Fighting Words, Etienne C. Toussaint Dec 2020

Blackness As Fighting Words, Etienne C. Toussaint

Faculty Publications

The resurgence of worldwide protests by activists of the Movement for Black Lives (BLM) has ushered a global reckoning with the meaning of this generation’s rallying cry – “Black Lives Matter.” As citizens emblazon their streets with this expression in massive artistic murals, the Trump administration has responded with the militarized policing of non-violent public demonstrations, revealing not merely a disregard for public safety, but far worse, a concerted dismantling of protestors’ First Amendment rights. Nevertheless, BLM protests have persisted. Accordingly, this Essay considers the implications of this generation’s acclamation of Black humanity amidst the social tensions exposed during ...


Fair Use In Sayre V. Moore: A Reply To Oracle, Ned Snow Nov 2020

Fair Use In Sayre V. Moore: A Reply To Oracle, Ned Snow

Faculty Publications

The Supreme Court is now considering the case of Google LLC v. Oracle America, Inc. Oracle has argued that Google infringed its copyright in computer software, but a jury found that Google’s use was not infringing under the fair use doctrine. The Federal Circuit reversed the jury verdict under a de novo standard of review. I have argued that this reversal violates the Seventh Amendment.

Seventh Amendment rights depend on whether an issue would have been decided by a jury in English law courts during the late 1700s. My argument is that in the 1785 English case of Sayre ...


Immoral Trademarks After Brunetti, Ned Snow Oct 2020

Immoral Trademarks After Brunetti, Ned Snow

Faculty Publications

For more than a century, marks that were vulgar, profane, and obscene could not receive trademark protection. In 2019, however, the Supreme Court in Iancu v. Brunetti invalidated the statutory provision that had prevented such marks from receiving protection—the bars to “immoral” and “scandalous” marks. Those bars violated the First Amendment because they enabled the government to judge whether ideas in marks were inappropriate. Similarly, two years prior to Brunetti, the Court in Matal v. Tam struck down a bar to marks that could “disparage” others. The Court reasoned that to disparage is to offend, and the ability to ...


The Fourth Amendment At Home, Thomas P. Crocker Oct 2020

The Fourth Amendment At Home, Thomas P. Crocker

Faculty Publications

A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due ...


The Title Ix Paradox, Emily Suski Aug 2020

The Title Ix Paradox, Emily Suski

Faculty Publications

When Christine Blasey Ford explained to the Senate Judiciary Committee why she had not reported her sexual assault at age fifteen, she captured the struggle of many children who must decide whether to make such reports: “For a very long time, I was too afraid and ashamed to tell anyone the details.” Thousands of sexual assaults happen to children in school each year. Title IX, a potentially powerful civil rights law, should protect them. Title IX’s main purpose is to protect individuals from sex discrimination, including in the form of sexual harassment and assault, in public schools. Yet Title ...


Workplace Law, Social Neuroscience, And The Right To Be Different, Joseph Seiner Jul 2020

Workplace Law, Social Neuroscience, And The Right To Be Different, Joseph Seiner

Faculty Publications

No abstract provided.


Bar Bytes: Fastcase As A Supplement To Westlaw, Eve Ross Jul 2020

Bar Bytes: Fastcase As A Supplement To Westlaw, Eve Ross

Faculty Publications

No abstract provided.


Justice For All? An In-Depth Look At Sexual Assault Kit Testing In The Carolinas, Jessalynn C. King Jul 2020

Justice For All? An In-Depth Look At Sexual Assault Kit Testing In The Carolinas, Jessalynn C. King

Senior Theses

Within the last few decades, technological advancements and an improved understanding of biological materials have led to an increase in evidence that can be submitted for forensic testing in criminal justice investigations. In a sexual assault investigation, a sexual assault kit (SAK) is often collected and contains the evidence found on the victim’s or suspect’s person. While the true total is unknown, it is estimated that several hundred thousand untested SAKs remain in the custody of law enforcement and forensic crime laboratories across the United States. Whether these SAKs were neglected due to law enforcement bias, the prioritization ...


Who Feels Entitled To Assert Legal Rights?, Elizabeth S. Chambliss Jun 2020

Who Feels Entitled To Assert Legal Rights?, Elizabeth S. Chambliss

Faculty Publications

No abstract provided.


Litigation As Parenting, Lisa Martin May 2020

Litigation As Parenting, Lisa Martin

Faculty Publications

Children have legal rights. Yet, children typically lack the legal capacity to represent their interests in courts. When federal courts are presented with children’s claims, the Federal Rules of Civil Procedure require courts to ensure that children’s legal interests are adequately protected. To do so, courts decide who can speak and make decisions for the child within the litigation. Federal Rule of Civil Procedure 17(c) maps out a loose process for addressing these concerns but fails to fully account for a critical factor in protecting child litigants: the decision making rights of parents.

Because parents have constitutionally ...


Managerial Fixation And The Limitations Of Shareholder Oversight, Emily R. Winston Apr 2020

Managerial Fixation And The Limitations Of Shareholder Oversight, Emily R. Winston

Faculty Publications

BlackRock’s recent public letters to the CEOs of the companies in which it invests have drawn substantial attention from stock market actors and observers for their conspicuous call on corporate CEOs to focus on sustainability and social impacts on non-shareholder stakeholders. This Article explores the market changes that propelled BlackRock into a position to make such a call, and whether institutional shareholders can be effective monitors of these broad social goals. It argues that while corporate attention to non-shareholder stakeholders can improve firm value, shareholder oversight of these stakeholder relationships will not succeed in having this effect.

In the ...


Decarbonization In Democracy, Shelley Welton Apr 2020

Decarbonization In Democracy, Shelley Welton

Faculty Publications

Conventional wisdom holds that democracy is structurally ill-equipped to confront climate change. As the story goes, because each of us tends to dismiss consequences that befall people in other places and in future times, “the people” cannot be trusted to craft adequate decarbonization policies, designed to reduce present-day, domestic carbon emissions. Accordingly, U.S. climate change policy has focused on technocratic fixes that operate predominantly through executive action to escape democratic politics — with vanishingly little to show for it after a change in presidential administration.

To help craft a more durable U.S. climate change strategy, this Article scrutinizes the ...


The Uniform Basis Rules And Terminating Interests In Trusts Early, F. Ladson Boyle, Howard M. Zaritsky, D. Ryan Wallace Apr 2020

The Uniform Basis Rules And Terminating Interests In Trusts Early, F. Ladson Boyle, Howard M. Zaritsky, D. Ryan Wallace

Faculty Publications

The resolution of income tax issues that may arise for trust beneficiaries who dispose of temporal interests in trusts remains relatively obscure. Additional issues exist for subsequent interest holders; the methods that the Code and Regulations prescribe for establishing, maintaining, and potentially recovering basis for successor owners of interests in a trust are not well developed.

In some instances, the trust instrument creating a temporal interest will supply a suitable path for early termination and distribution of assets. In those cases, Sub-chapter J of the Code typically governs the transaction and provides that terminating the trust and distributing its assets ...


Sample-Based Hip-Hop Music And Fair Use Laws In The Age Of Streaming Services, Michael Vanbuhler Apr 2020

Sample-Based Hip-Hop Music And Fair Use Laws In The Age Of Streaming Services, Michael Vanbuhler

Senior Theses

This thesis takes an in depth look at the history and processes behind creating sample-based music. Sampling was popularized during the beginnings of hip-hop music and now a wide variety of genres use samples or techniques created by sample-based music. Early hip-hop beats took samples of drum breaks or a portion of a track from another artist or band. As hip-hop grew in the late 80s and early 90s, the use of samples became a question of intellectual property rights and if it was acceptable to sample someone’s copyrighted work. Lawsuits in the early 90’s helped to create ...