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Full-Text Articles in Law

Institutional Betrayals As Sex Discrimination, Emily Suski May 2022

Institutional Betrayals As Sex Discrimination, Emily Suski

Faculty Publications

Title IX jurisprudence has a theoretical and doctrinal inadequacy. Title IX’s purpose is to protect public school students from sex discrimination in all its forms. Yet, courts have only recognized three relatively narrow forms of sex discrimination under it. Title IX jurisprudence, therefore, cannot effectively recognize as sex discrimination the independent injuries, called institutional betrayals, that schools impose on students because they have suffered sexual harassment. Institutional betrayals occur when schools betray students’ trust in or dependency on them by failing to help students in the face of their sexual harassment. These injuries cause harms that can be more severe …


The Constitutional Right To An Implicit Bias Jury Instruction, Colin Miller Apr 2022

The Constitutional Right To An Implicit Bias Jury Instruction, Colin Miller

Faculty Publications

The Supreme Court has gone to great lengths to prevent jurors from holding defendants’ silence against them. In a trilogy of opinions, the Court concluded that when a defendant refrains from testifying, (1) the prosecutor and judge cannot make adverse comments about that decision; (2) the judge can give a “no adverse inference” instruction even over a defense objection; and (3) the judge must give a “no adverse inference” instruction upon a defense request. Conversely, the Court has never ruled that jurors can impeach their verdict based upon jurors holding a defendant’s silence against him, and lower courts have ruled …


Rights To Nowhere: The Idea's Inadequacy In High-Poverty Schools, Claire Raj Apr 2022

Rights To Nowhere: The Idea's Inadequacy In High-Poverty Schools, Claire Raj

Faculty Publications

The Individuals with Disabilities Education Act (“IDEA”) successfully opened the schoolhouse doors to millions of students with disabilities. But more than forty years after its enactment, the law has proven largely inept at confronting the educational inequities faced by the many students with disabilities attending underfunded, high-poverty public schools. This shortcoming is inconsistent with common conceptions of the IDEA: Advocates and policymakers alike treat the IDEA’s rights and privately enforceable remedies as strong, meaningful tools. This Article theorizes that the IDEA’s under-appreciated failures are overlooked because they are the products of the law’s internal structure, undue judicial deference to schools, …


Taxing Choices, Tessa R. Davis Apr 2022

Taxing Choices, Tessa R. Davis

Faculty Publications

Tax has a choice problem. At all stages of the making of tax, choice plays a role. Lawmakers consider how tax will impact the range and appeal of choices available to an individual. Scholars critique how tax may drive an individual toward or away from a given choice. Courts craft stories of how an individual had either free or deeply constrained choice, using their perception of the facts to guide their interpretation of tax law. And yet for all the seeming relevance of choice to tax, we have no clear definition of what we mean when we talk about choice …


The Legal And Social Challenges Involved In The Expansion Of Multinational Operations: A Case Study Of Exxonmobil Indonesia, Shashaank Rajaraman Apr 2022

The Legal And Social Challenges Involved In The Expansion Of Multinational Operations: A Case Study Of Exxonmobil Indonesia, Shashaank Rajaraman

Senior Theses

Within this paper, I will analyze the legal and social relations between multinational corporations and their host countries. This analysis will be conducted through viewing the circumstances surrounding Doe v. ExxonMobil within the District of Columbia Circuit Court, in which ExxonMobil has engaged in litigation regarding their human rights record within the country of Indonesia. Through secondary research conducted both within business and legal journals, information about the practices of ExxonMobil can be examined and utilized to make general conclusions upon the corporate diplomacy practiced by multinational corporations.


Mobile Sports Gambling In South Carolina, Drew Pechulonis Apr 2022

Mobile Sports Gambling In South Carolina, Drew Pechulonis

Senior Theses

After the U.S. Supreme Court deemed the Professional and Amateur Sports Protection Act (PASPA), sports betting has expanded across the country at a rapid pace. As the sports gambling industry continues to grow, states that have not passed legislation are left wondering whether legalization would benefit their constituents.

The purpose of this study is to determine the feasibility and consequences of legalizing mobile sports gambling in the state of South Carolina. This study can inform state leaders on how to implement mobile sports gambling in the state as well as the positive and negative repercussions that would follow legislation. As …


Preemption & Gender & Racial (In)Equity: Why State Tort Law Is Needed In The Cosmetic Context, Marie C. Boyd Feb 2022

Preemption & Gender & Racial (In)Equity: Why State Tort Law Is Needed In The Cosmetic Context, Marie C. Boyd

Faculty Publications

Much of the legal scholarship on the preemption of state tort law in the food and drug context and beyond has focused on issues of federalism. While the literature has considered the relationship between state tort law and the regulatory system, it has not generally explored the impact the federal preemption of state tort law may have on women and people of color. Similarly, while the literature has grappled with gender and racial justice issues in the tort system, including in the context of tort reform, it has largely not examined the gender and racial equity issues raised by federal …


Rural Estrangement And The Regulatory State, Ann M. Eisenberg Jan 2022

Rural Estrangement And The Regulatory State, Ann M. Eisenberg

Faculty Publications

In today’s polarized social and political climate, rural alienation from government is often dismissed as “just more politics” or a symptom of problematic cultural norms. This Article takes rural disaffection from government seriously, with a focus on rural relationships with the federal regulatory state. The Article argues that rural disaffection from the regulatory state is not solely a cultural or political phenomenon among white conservatives. Rural disaffection is also a broader structural issue that stems in part from the regulatory state’s crisis of legitimacy.

Two factors show that rural disaffection from the regulatory state is more diffuse and profound than …


International Space Law: How Russia And The U.S. Are At Odds In The Final Frontier, Matthew G. Looper Jan 2022

International Space Law: How Russia And The U.S. Are At Odds In The Final Frontier, Matthew G. Looper

South Carolina Journal of International Law and Business

No abstract provided.


E-Commerce In Asean: An Emerging Economic Superpower And The Case For Harmonizing Consumer Protection Laws, Juthamas Thirawat Jan 2022

E-Commerce In Asean: An Emerging Economic Superpower And The Case For Harmonizing Consumer Protection Laws, Juthamas Thirawat

South Carolina Journal of International Law and Business

No abstract provided.


Unequal Investment: A Regulatory Case Study, Emily R. Winston Jan 2022

Unequal Investment: A Regulatory Case Study, Emily R. Winston

Faculty Publications

Growing economic inequality in the United States has reduced social mobility, placing financial security farther out of reach for a growing number of Americans. During the COVID-19 pandemic, U.S. stock prices have grown simultaneously with unemployment and food insecurity, highlighting the fact that prosperity is unequally distributed in the U.S. economy.

Many Americans do not benefit when the stock market soars because they do not have the means to invest. However, even ordinary American families who do have wealth to invest in the capital markets will face enormous obstacles in narrowing the wealth divide through investment. This is because ordinary …


Disaggregating Legislative Intent, Jesse M. Cross Jan 2022

Disaggregating Legislative Intent, Jesse M. Cross

Faculty Publications

In statutory interpretation, theorists have long argued that the U.S. Congress is a “they,” not an “it.” Under this view, Congress is plural and nonhierarchical, and so it is incapable of forming a single, institutional intent. Textualists contend that this vision of Congress means interpreters must move away from concerns about intent altogether, and that they instead should speak in the register of textualism and its associated constitutional values, such as notice and congressional incentivization.

However, even if legislators’ intentions never coalesce into an institutional intent, a disaggregated-intent theory of legislation remains possible. Under this theory, statutes are understood as …


Developing Police, Madalyn K. Wasilczuk Jan 2022

Developing Police, Madalyn K. Wasilczuk

Faculty Publications

No abstract provided.


Public Policy Norms And Choice-Of-Law Methodology Adjustments In International Arbitration, Hossein Fazilatfar Jan 2022

Public Policy Norms And Choice-Of-Law Methodology Adjustments In International Arbitration, Hossein Fazilatfar

South Carolina Journal of International Law and Business

Arbitration agreements draw the legal relationship not only between the parties but also are the contractual source of authority for arbitrators to resolve parties’ dispute. To respect the principle of party autonomy, arbitrators must serve parties’ will and consider their interests in issuing the arbitral award. However, there is one caveat: respect public policy norms of the states that have an important stake in the outcome of the arbitration. Indeed, application of public policy norms in international arbitration is a challenge due to their mandatory character. The law chosen by the parties, or the otherwise applicable law chosen by the …


A Look Into Voluntary Nongovernmental Organization (Ngo) Certifications On Labor Conditions In International Trade Law: Nike, A Case Study, Elvira Oviedo Jan 2022

A Look Into Voluntary Nongovernmental Organization (Ngo) Certifications On Labor Conditions In International Trade Law: Nike, A Case Study, Elvira Oviedo

South Carolina Journal of International Law and Business

No abstract provided.


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 in Chiafalo …


Modernizing Capacity Doctrine, Lisa V. Martin Jul 2021

Modernizing Capacity Doctrine, Lisa V. Martin

Faculty Publications

Federal capacity doctrine—or the rules establishing whether and how children’s civil litigation proceeds—has largely remained the same for more than a century. It continues to presume that all children are incapable of directing their own cases, and that adults must litigate on children’s behalf. But since that time, our understanding of children, and of adolescents in particular, has significantly evolved. This Article contends that it is well beyond time to modernize the capacity doctrine to better account for the capabilities of adolescents and support their transition to adulthood.


Deference Is Dead, Long Live Chevron, Nathan D. Richardson Jul 2021

Deference Is Dead, Long Live Chevron, Nathan D. Richardson

Faculty Publications

Chevron v. NRDC has stood for more than 35 years as the central case on judicial review of administrative agencies’ interpretations of statutes. Its contours have long been debated, but more recently it has come under increasing scrutiny, with some—including two sitting Supreme Court Justices—calling for the case to be overturned. Others praise Chevron, calling deference necessary or even inevitable. All seem to agree the doctrine is powerful and important.

This standard account is wrong, however. Chevron is not the influential doctrine it once was and has not been for a long time. It has been eroded from the outside …


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 prosecuted …


A Case Examination Of Factors Impacting Charges In Vehicular Heatstroke, Jennifer Gray, Monica L. Mccoy Apr 2021

A Case Examination Of Factors Impacting Charges In Vehicular Heatstroke, Jennifer Gray, Monica L. Mccoy

SC Upstate Research Symposium

Abstract — Since the 1990s, preventing vehicular heatstroke has been the focus of many public health campaigns. Parents are implored to never leave their young children unattended in the car, and to check the backseat before getting out of the car. Despite the increase in awareness about child fatalities due to hyperthermia, children continue to be left or forgotten in vehicles with tragic consequences. Interestingly, the decision to charge the negligent caregiver in cases of vehicular heatstroke is not widely studied. While some evidence indicates that case factors (e.g., intentionality and caregiver intoxication) are relevant in the decision to charge …


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 an overwhelming media …


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 policy …


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 …


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’ …


Title Page Apr 2021

Title Page

South Carolina Law Review

No abstract provided.


Table Of Contents Apr 2021

Table Of Contents

South Carolina Law Review

No abstract provided.


Board Of Editors And Law School Faculty Apr 2021

Board Of Editors And Law School Faculty

South Carolina Law Review

No abstract provided.


The South Bronx Has Something To Say: Symposium Keynote, Dorothy A. Brown Apr 2021

The South Bronx Has Something To Say: Symposium Keynote, Dorothy A. Brown

South Carolina Law Review

No abstract provided.


Tax Administration And Racial Justice: The Illegal Denial Of Tax-Based Pandemic Relief To The Nation's Incarcerated Population, Leslie Book Apr 2021

Tax Administration And Racial Justice: The Illegal Denial Of Tax-Based Pandemic Relief To The Nation's Incarcerated Population, Leslie Book

South Carolina Law Review

No abstract provided.


Tax Code Bias And Its Starring Role In Perpetuating Inequalities, Phyllis C. Taite Apr 2021

Tax Code Bias And Its Starring Role In Perpetuating Inequalities, Phyllis C. Taite

South Carolina Law Review

No abstract provided.