Law Commons^™

Judges As Lawyers, Deirdre M. Smith

Faculty Publications

The integrity of the American legal system and, thereby, of our democracy rests on the shoulders of the judiciary. It is widely understood that the roles of jurist and advocate are incompatible and that the fairness and legitimacy of our court systems require maintaining clear boundaries between those roles. Accordingly, an essential feature of every state’s judicial conduct code is a prohibition on the practice of law by judges. However, many states have carved out exceptions to this prohibition to allow part-time judges sitting in low-level trial courts to supplement their modest judicial compensation by practicing law. The rationale for …

The Art Of Nfts: Copyright, Contracts, And The Fallacy Of Ownership, Christine S. Davik

Faculty Publications

With cryptocurrency Bitcoin’s prices continuing to hit record highs, overall public interest in NFTs will likely increase significantly as it ordinarily has in the past. But before purchasing an NFT, it is important that consumers understand exactly what they are buying. Many assume their purchase will include the associated art that is shown in the individual NFT marketplace listing, whether it be a CryptoKitty, a Bored Ape, or a single video clip from an NBA game. However, in reality, most buyers are getting little more than a few lines of code on the blockchain. What explains these misconceptions, especially when …

Silence As Consumer Consent: Global Regulation Of Negative Option Contracts, Kaitlin A. Caruso, Prentiss Cox

Faculty Publications

Worldwide, the “subscription economy” has exploded in recent years, especially among online sellers of consumer goods and services. These subscriptions use various contract forms-- but many have one common feature: the negative option. With a negative option contract, once a consumer has signed up, the contract will continue until the consumer actively reaches out to cancel it. These are wildly popular among sellers, as they create continuous income and put inertia on the sellers' side. Unsurprisingly, then, consumers complain in extraordinary numbers about being trapped in agreements that are easy to sign up for but seemingly impossible to cancel. Even …

Loan To Own, Robert W. Miller

Faculty Publications

Convertible debtor-in-possession ("DIP") financing is symptomatic of a paradigm shift in the control of large bankruptcy cases. During the prior era of lender control, distressed investors used DIP financing to shape the trajectory of bankruptcy cases and extract monopolistic rents at the expense of other constituencies. Enter the original loan-to-own: a common strategy commenced with a DIP loan, continued with a stalking-horse bid, and culminated in an acquisition of the debtor's assets. More recently, private equity sponsors ("Sponsors") and other sophisticated insiders are usurping control of bankruptcy cases. Convertible DIP financing (Loan-to-Own 2.0) is a byproduct. This Article situates convertible …

Everyone Is Talking About Bankruptcy Directors, Robert W. Miller

Faculty Publications

The proliferation of bankruptcy directors represents a controversial shift in the corporate governance landscape. Delegating corporate decision making to bankruptcy directors insulates conflicted transactions and claims from the elevated scrutiny provided by derivative standing and entire fairness. However, critics have questioned their independence and cleansing effect. Are bankruptcy directors really independent when their role includes negotiation with and/or investigation into the same parties who appoint them? Should their decisions be given deference when their appointment is associated with lower recoveries for creditors? Bankruptcy directors' salience is best illustrated by the numerous proposals for determining whether they have cleansing effect, including …

The Future Of Indigent Defense In South Dakota, Neil Fulton, Brooklyn Bollweg

Faculty Publications

No abstract provided.

R.I.P. Rap, Thomas Simmons

Faculty Publications

In 1983, South Dakota's Legislature confirmed that the Rule Against Perpetuities ("RAP") was neutralized: "The common-law rule against perpetuities is not in force in this state." The legislative pronouncement, essentially unnoticed at the time, proved to be the seed from which the state's trust industry grew. This article, the second of two installments, continues the life history of RAP in South Dakota. The first installment surveyed common law RAP and its obscure, labyrinthine, counter-intuitive mechanics. This installment picks up with a survey of pre-1983 caselaw and uncovers an interesting nugget-it appears that South Dakota never recognized RAP in the first …

Politicians The Founders Warned You About, Neil Fulton

Faculty Publications

Many articles have explored the Founders' intentions regarding the constitutional text. Much less attention has focused on the Founders' ideas regarding the traits needed of the leaders in a constitutional republic. The Constitution focuses on governing structures, many of which relate to the electoral process. The Constitution does not spell out the ideal traits of the leaders elected pursuant to those processes. Nonetheless, the Founders possessed clear views about the virtues and qualifications that ideal political leaders required. Indeed, the Founders issued warnings about certain archetypal political figures who, because of their flagrant disregard of the ideal virtues and qualifications, …

Legislative Oversight Of The Administrative State: The South Dakota Legislature's Review Of Agency Rules, Neil Fulton, Patrick Garry, Gabrielle Unruh

Faculty Publications

Like the federal government, the executive branch of South Dakota's government includes administrative agencies. But unlike the federal government, the South Dakota Legislature exercises greater oversight. One such example is the Legislative Interim Rules Review Committee. This article not only explains the purpose of the Committee and the rules review process, but it also describes the results of an empirical study that analyzed the Committee's level of involvement in administrative rules' promulgation. In particular, this study examined the Committee's actions during the calendar year of 2019-whether the rules were reverted, passed, or later passed with modifications, and why such actions …

Do Universities Meet Their Democratic Obligations?, Neil Fulton

Faculty Publications

No abstract provided.

Assessing A Potential Deviation In The Legislative Process: The Use Of Vehicle Bills In South Dakota, Neil Fulton, Sarah Kammer, Patrick Garry

Faculty Publications

Vehicle bills are used by many state legislatures, including the South Dakota Legislature. These bills serve as empty shells to be amended with substantive text later in the legislative session. Critics charge that such vehicles allow legislators to meet the filing deadline with an essentially meaningless bill that gets amended late in the session, thereby depriving the public and opposition legislators from adequately investigating and debating the newly amended bill. This article examines how, and to what extent, the South Dakota Legislature has used vehicle bills over the past decade. In so doing, the article may provide some insight into …

Leveraging Technology And Pro Se Clinics To Enhance Rural Access To The Courts, Marilyn Trefz, Kelly Collinsworth

Faculty Publications

The integration of technology and the formation of law school pro se clinics offers a promising outcome to the challenges faced by pro se divorce and custody litigants in rural areas. This innovative approach promotes rural access to justice and provides law students with practical training opportunities. By embracing these advancements, legal systems can bridge the justice gap and create a more equitable and efficient environment for rural litigants involved in divorce and custody proceedings while encouraging students to embrace rural legal practice.

The Nondelegation Doctrine In The States: How The Doctrine Has Been Applied In South Dakota, Patrick Garry, Gabrielle Unruh

Faculty Publications

The United States Constitution's separation of powers doctrine is foundational to the operation of the United States government. In theory, the nondelegation doctrine exists to preserve the separation of powers amongst the three branches of government. The doctrine's purpose is to give sole lawmaking authority to Congress, while yet allowing it to delegate rulemaking authority to an administrative agency, but only if it provides an "intelligible principle" to guide and constrain the agency's rulemaking. While on the surface this appears to be a high standard, the United States Supreme Court has not struck down a law promulgated by an administrative …

Reinvigorating Congress's Role In The Administrative State: What The Major Questions Doctrine Suggests About Nondelegation, Patrick Garry, Sidney J. Hardy

Faculty Publications

In its recent decision in West Virginia v. EPA, the U.S. Supreme Court struck down administrative rules attempting to dramatically transform the electrical power generating industry. The Court's decision rested on its major questions doctrine, which states that on important enough matters the intent of Congress must be clearly expressed. This doctrine goes against the prevailing trend of deference toward the administrative state, as expressed through the permissive nondelegation and Chevron doctrines. While the major questions doctrine seeks to retain some congressional control over important issues, it nonetheless attracts much criticism on an array of grounds. This article proposes an …

Justice Theater In The Criminal Law Curriculum, Gregory Brazeal

Faculty Publications

For the last half-century, law students have been required to take a criminal law course that ostensibly trains them to think critically about the justifications for criminal punishment. The same students have then gone on to serve as central actors in a system of mass incarceration that millions of Americans today view as profoundly unjust. How did this happen? A number of legal scholars, notably including Alice Ristroph in her 2020 Article "The Curriculum of the Carceral State," have argued that the traditional criminal law curriculum has played a role in creating and reproducing the practices of mass incarceration. This …

No-Poach Agreements: An Overview Of Us, Eu, And National Case Law, Donald J. Polden

Faculty Publications

The United States, European Union, and many other international jurisdictions have antitrust and competition laws that seek to prevent anticompetitive conduct concerning labor and employment relationships. However, for many years these prohibitions on restraints of trade in labor markets and employment relationships were not routinely and rigorously enforced by those jurisdictions. The lack of governmental attention to these labor market practices has changed in important ways in recent years. Across many jurisdictions, we are now seeing more intense attention to conduct that suppresses wages of workers and their freedom of job mobility to other comparable positions. From an international perspective, …

Psychology And The Legislative Future Of In Vitro Fertilization, Kerry L. Macintosh

Faculty Publications

In LePage v. Center for Reproductive Medicine, P.C.,¹ three couples that had undergone in vitro fertilization (hereinafter IVF) sued a fertility clinic and hospital after their stored embryos were lost in an accident.² The plaintiffs included claims under Alabama’s Wrongful Death of a Minor Act (hereinafter Act), which imposes liability for a wrongful act, omission, or negligence that causes the death of a “minor child.”³ The trial court dismissed the wrongful death claims, holding that the embryos were not children.⁴ The Alabama Supreme Court, however, reversed the dismissal, reasoning that the lost embryos qualified as unborn …

How Do You Represent "Those People?", Neil Fulton

Faculty Publications

No abstract provided.

The Seven Elements Of Dispute Systems Design, Lisa K. Dicker, Neil Mcgaraghan

Faculty Publications

In this article, clinical instructors at the Harvard Law School Dispute Systems Design (“DSD”) Clinic propose adapting an old analytical framework — The Seven Elements of Interest-Based Negotiation — for a new context, dispute systems design (“DSD”). A relatively young field, DSD is the “applied art and science of designing the means to prevent, manage, and resolve streams of disputes or conflict.” DSD can feel broad and opaque to newcomers and thus is in need of a foundational framework, especially for beginners. The Seven Elements of DSD — alternatives, interests, options, criteria, communication, relationship, and commitment — can serve a …

Coercive Ideology, Tyler Rose Clemons

Faculty Publications

Current equal protection jurisprudence does not permit challenges to discriminatory government expression, no matter how blatant or extreme. This doctrine, which I label the discriminatory treatment requirement, is a manifestation of anticlassification, the prevailing equal protection framework since the mid-1970s. According to anticlassification, only suspect government classifications implicate the Equal Protection Clause. In this Article, I contend that discriminatory government expression violates the Clause because it contributes integrally to racial subordination. Through a process I call coercive ideology, discriminatory government expression serves as a veiled threat that manipulates individuals into performing public compliance with the dominant ideology. Like the script …

Merging The Bench, Bar, And Law Schools: How A Student Scholars Program Achieves Professional Identity Through Scholarly Writing, Mentorship, And Presentation, John C. Foley, Robin Boyle-Laisure, Troy Kessler

Faculty Publications

(Excerpt)

Legal education is transforming. The American Bar Association's accreditation standards now require law schools to provide students with substantial opportunities for the development of professional identities together with an education that results in competencies in oral and written communication. As the professional identity formation requirement changes law school curricula, the COVID-19 pandemic has accelerated changes in the practice of law resulting in an emphasis on remote advocacy and presentation skills. This article explains the design and implementation of an innovative co-curricular program that addresses the new educational standard and the realities of practicing law today. In the Student Scholars …

Distorted Narratives In The Treatment Program Complex, Evelyn Lia Malavé

Faculty Publications

Problem-solving courts and alternatives to incarceration have been both celebrated as successful attempts to address the factors that lead to defendants’ involvement in the criminal legal system and critiqued as ineffective reforms that worsen mass incarceration. Specifically, critiques of the “treatment program complex” have tended to focus on how it harms defendants by exposing them to higher levels of incarceration if they fail to complete court mandates. But these critiques have failed to account for another way the treatment program complex harms defendants: by suppressing their voices regarding what kind of help they need and how they are affected by …

Navigating The Frontiers Of Medtech, Benjamin Sundholm

Faculty Publications

The medical community is increasingly focused on the rise of adaptive and opaque artificial intelligence tools. These systems improve over time but produce results through complex calculations that are difficult for humans to fully understand. Although promising, these features challenge existing legal doctrines. To date, efforts to overcome these challenges have been too fragmented and limited in scope. As a result, the full promise of adaptive and opaque artificial intelligence systems remains untapped.

This Article proposes a framework for unleashing the potential of these systems through a blend of forward- and backward-looking reforms. The ex ante feature of my framework …

Deconstructing Trinko, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Recent monopolization cases against Google and Facebook brought by the Justice Department and the Federal Trade Commission signal that the United States is at the dawn of a new era of aggressive antitrust enforcement. If those cases are to be harbingers of an antitrust renaissance, then antitrust enforcers must confront and successfully overcome the Supreme Court’s 2004 decision in Trinko, which has cast a long shadow over antitrust enforcement efforts in monopolization cases. In breathtakingly broad and provocative language that is decidedly unsympathetic to enforcement of §2 of the Sherman Act, particularly in unilateral refusal to deal cases, …

In-House Counsel(Or): The Case For Providing Integrated Mental Health Support Services To Law Students, Eric W. Shannon

Faculty Publications

While some American law schools currently provide onsite mental health support services to their student populations, many still do not. This essay is the first to argue that all law schools should provide onsite mental health support services to their students—ideally, by way of a mental health professional integrated within the law school’s staff (an “integrated mental health professional,” or “IMHP”) who is familiar not only with the unique pressures of law school generally, but also with the school-specific environment. It explores current data on law student well-being as well as external considerations including ABA recommendations and standards for law …

Critical Race Thinking In A Pro-Black Space: An Asian American Law Professor's Reflections On Teaching At An Hbcu, Philip Lee

Faculty Publications

(Excerpt)

Historically Black colleges and universities (HBCUs) have been the subject of both scholarly criticism and praise. Some of these colleges have shut down in recent years. Many HBCU law schools could face the same fate due to bar passage and other issues. However, with the recent Supreme Court decision in Students for Fair Admission, Inc. (SFFA) v. Harvard invalidating long-standing race-conscious admissions policies in higher education, HBCUs have become even more relevant in the educational landscape. As admission to historically White institutions (HWIs) become more elusive and as racial diversity at these places plumets, HBCUs are expected to admit …

Critical Race Theory Model Measure And Implementation In Curriculum, Taifha Natalee Alexander, Ahilan Arulanantham

Faculty Publications

(Excerpt)

This memorandum aims to explain the purpose of the following model measure. The proposed legislation would preserve the freedom of teachers to teach—and students to learn—about racism, including its history and on-going effects in this country. It does this by providing a framework through which state governments can encourage the teaching and learning of Critical Race Theory ("CRT") principles as a lens through which to teach and learn about racial inequality in America, its history, and its current manifestations, to enhance K-12 public school curricula.

We believe the model measure should be of interest to a broad range of …

Securities Arbitration Case Law Updates 2023-2024 (June 2024), Elissa Germaine, Nikki Junda

Faculty Publications

(Excerpt)

This article summarizes leading arbitration cases and related issues that are of particular relevance to the securities arbitration practitioner.

Lethal Immigration Enforcement, Abel Rodríguez

Faculty Publications

Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853 border crossers died last year, and the deadliest known transporting incident took place in June 2022, with fifty-one lives lost. In addition, widespread neglect continues to cause loss of life in immigration detention, immigration enforcement agents kill migrants with virtual impunity, and immigration law ensures …

Having Fun While Learning: Pedagogical Techniques For Teaching Contract Drafting, Robin Boyle

Faculty Publications

(Excerpt)

Welcome everyone. Thank you very much for coming. It’s so exciting that we’re all together. I was looking forward to this conference. I’m Robin Boyle and I haven’t been here in a long time, unfortunately. So, it’s wonderful to come back and to see all of you.

My foray into contract drafting began about twenty years ago, when I started teaching Drafting Litigation Documents and Contracts (3 credits), which had a contract drafting component. The school also created a standalone Contract Drafting course (2 credits). The books that I’ve been using over the years have been very helpful. I …