Law Commons^™

South Carolina Practice Materials: A Selective Annotated Bibliography, Eve Ross

Faculty Publications

No abstract provided.

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 health conditions …

The Bounds Of Energy Law, Shelley Welton

Faculty Publications

U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully embraced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century’s tools for managing the extraction, transport, and delivery of fossil …

Making Federalism Work: Lessons From Health Care To The Green New Deal, Jesse M. Cross, Shelley Welton

Faculty Publications

For decades, federalism had a bad reputation. It often was perceived as little more than a cover for state resistance to civil rights and other social justice reforms. More recently, however, progressive scholars have argued that federalism can meaningfully advance nationalist ends. According to these scholars, federalism allows for spaces in which norms can be contested, developed, and extended. This new strain of scholarship also recognizes, however, that these federalist structures can still shield national-level reforms from reaching all Americans. Many see such gaps as a regrettable but unavoidable feature of our federalist system.

But to embrace federalism as an …

The End Of Comparative Qualified Immunity, Colin Miller

Faculty Publications

Critics have called qualified immunity an “unqualified disgrace,” an “abomination,” and “a scourge that closes courthouse doors to people whose constitutional rights have been violated.” One particularly troubling aspect of qualified immunity is what I’ll call comparative qualified immunity: the ability of a government official to avoid liability by claiming that his behavior wasn’t that much worse than conduct by a prior official that was deemed constitutional. In November 2020, the Supreme Court seemingly created a narrow exception to comparative qualified immunity in cases involving “particularly egregious facts.” In February 2021, however, the Supreme Court signaled that this was no …

Reform Through Resignation: Why Chief Justice Roberts Should Resign (In 2023), Scott P. Bloomberg

Faculty Publications

Many proponents of reforming the Supreme Court have expressed support for adopting a system of eighteen-year staggered term limits. These proposals, however, are hobbled by constitutional constraints: Amending the Constitution to implement term limits is highly implausible and implementing term limits through statute is likely unconstitutional. This Essay offers an approach to implementing term limits that avoids these constitutional constraints. Just as President Washington was able to establish a de facto Presidential term limit by not seeking a third term in office, Chief Justice Roberts is uniquely positioned to establish a new norm of serving eighteen-year terms on the Court. …

After Marriage Equality: Dual Fatherhood For Married Male Same-Sex Couples, Jessica Feinberg

Faculty Publications

In most states, married male same-sex couples who conceive children via gestational surrogacy using sperm from one member of the couple and donor ova must pursue adoption in order to establish legal parentage for the member of the couple who is not genetically related to the child. This is because only a minority of jurisdictions have surrogacy laws that recognize the non-biological intended parent as a legal parent in this situation, and across the United States cisgender male same-sex couples are excluded from the longstanding non-adoptive marriage-based avenues of establishing parentage currently available to both different-sex couples and female same-sex …

The Paradox Of Exclusive State-Court Jurisdiction Over Federal Claims, Thomas B. Bennett

Faculty Publications

Standing doctrine is supposed to ensure the separation of powers and an adversary process of adjudication. But recently, it has begun serving a new and unintended purpose: transferring federal claims from federal to state court. Paradoxically, current standing doctrine assigns a growing class of federal claims - despite Congressional intent to the contrary - to the exclusive jurisdiction of state courts. Even then, only in some states, and only to the extent authorized by state law.

This paradox arises at the intersection of three distinct areas of doctrine:

(1) a newly sharpened requirement of concrete injury under Article III that …

References To Aesop's Fables In Judicial Opinions And Written Advocacy, Douglas E. Abrams

Faculty Publications

In several “Writing It Right” articles over the past few years, I have described how federal and state judges frequently accent their opinions' substantive or procedural points with careful references to cultural markers familiar to many Americans. This article continues traveling the literary lane by turning to Aesop’s Fables. By invoking a Fable, the Friends of Animals district court continued a tradition that began in 1823, when the Pennsylvania Supreme Court cited Aesop in a will contest.

Cracking The Whole Code Rule, Anita S. Krishnakumar

Faculty Publications

Over the past three decades, since the late Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.

This Article provides the …

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 make students …

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.

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 …

Market-Anticipatory Approaches To Rural Property Vacancy, Ann M. Eisenberg

Faculty Publications

No abstract provided.

Human Rights Reporting As Human Rights Governance, Margaret E. Mcguiness

Faculty Publications

Contrary to the view that the rejection of human rights treaty membership has left the United States outside the formal international human rights system, the United States has played a key role in international human rights governance through congressionally mandated human rights monitoring and reporting. Since the mid-1970s, congressional oversight of human rights diplomacy, which requires reporting on global human rights practices, has integrated international human rights law and norms into the execution of U.S. foreign policy. While the congressional human rights mandates have drifted from their original purpose to condition allocation of foreign aid, they have effectively embedded international …

Preventing Predatory Alienation By High-Control Groups: The Application Of Human Trafficking Laws To Groups Popularly Known As Cults, And Proposed Changes To Laws Regarding Federal Immigration, State Child Marriage, And Undue Influence, Robin Boyle Laisure

Faculty Publications

In this article, I summarize some of the significant legal developments in the United States that have taken place within the past year. First, United States v. Raniere was a criminal case launched against the founder of a purported self-help organization, NXIVM, and several of his associates. The Raniere case established precedent for using the human-trafficking statutes, among other grounds, to pursue justice for victims of high-demand groups. Second, the number of asylum seekers is increasing annually, and some of these undocumented immigrants are escaping from their countries-of-origin cults, gangs, and other extremist groups. However, once they arrive in the …

When Public Defenders And Prosecutors Plea Bargain Race – A More Truthful Narrative, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This paper challenges prevailing stereotypes about public defenders and prosecutors and updates those stereotypes with a more accurate narrative about how reform-minded public defenders and prosecutors can plea bargain race to yield more equitable justice outcomes.

I was invited to the discussion about criminal justice reform in plea bargaining, because of my work in dispute resolution, dispute system design, and discrimination. Plea bargaining is a justice system negotiation that is used in upwards of 97% of criminal case dispositions. Unlike many of my colleagues in criminal justice reform who have also had years of experience working in the criminal …

Use Of Factors In Development Estimates: Improving The Cost Analysis Toolkit, Matthew R. Markman, Jonathan D. Ritschel, Edward D. White

Faculty Publications

Factor Estimating is a technique commonly used by defense acquisition analysts to develop cost estimations. However, previous studies developing factors for the Engineering and Manufacturing Development (EMD) phase of the life cycle are limited. This research expands the current toolkit for cost analysts by developing cost factors in previously unexplored areas. More specifically, over 400 cost reports are utilized to create new standard cost factors that are delineated by five categories: commodity type, contract type, contractor type, development type, and Service. The factors are developed for those elements that are common in a wide array of projects such as program …

Wage Enslavement: How The Tax System Holds Back Historically Disadvantaged Groups Of Americans, David Gamage, Goldburn P. Maynard Jr.

Faculty Publications

Despite the importance placed on equality of opportunity within United States political culture, the existing tax system inhibits historically disadvantaged groups from building wealth or catching up with historically more privileged groups. This effectively then traps many members of historically disadvantaged groups into a continued cycle of dependence on tax-disfavored wage and salary income, a phenomenon that we metaphorically label as “wage enslavement.” This Article explains this phenomenon and then calls for reform.

Leadership... From A To Z, Anne Klinefelter

Faculty Publications

No abstract provided.

The Fantasy Of The Unchaste Mentality, Tara N. Summerville, Kevin Bennardo

Faculty Publications

For the past forty years, North Carolina’s rape-shield legislation has served as a laboratory of experimentation. Like the rape-shield legislation of every state, it generally prevents the admission of complaining witnesses’ past sexual history in sexual assault prosecutions. However, North Carolina’s rape-shield rule contains a unique exception not found elsewhere in the country. The exception, which we label the “fantasy exception,” permits the admission of a complaining witness’s past sexual behavior when it is offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the charged assault.

This Article is the first to rigorously …

Ratemaking As Climate Adaptation Governance, Jonas J. Monast

Faculty Publications

Electric utilities are directly affected by, and in some cases are a source of, many pressing climate adaptation challenges: wildfires, vulnerable infrastructure, extreme storms, and drought. The state Public Utilities Commission (PUC) is one of the most consequential government agencies guiding the electricity sector’s response to climate change. Rate-regulated utilities may not charge ratepayers for new capital investments without PUC approval. When PUCs decide which costs are eligible for rate recovery, they also define which risks utilities seek to manage and which hedging strategies they use to do so. This Article argues that the foundational principles of ratemaking allow the …

No Amendment? No Problem: Judges, "Informal Amendment," And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie

Faculty Publications

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” …

The Emergence Of The Actively Managed Etf, Kevin S. Haeberle

Faculty Publications

Since the first exchange-traded fund began trading in 1993, the ETF form has attracted enormous investment flows. However, this triumph of the ETF has been overwhelmingly limited to the world of passive investment. Due to a mix of recent market innovation and regulatory change, this state of affairs is changing today. As I explain in this Article, there is much reason to believe that the actively managed ETF is now set to emerge as a significant feature of the investment landscape. And this emergence has important implications for, among others, the main parties that play key roles in protecting investors …

The Geography Of Abortion Rights, B. Jessie Hill

Faculty Publications

Total or near-total abortion bans passed in recent years have garnered tremendous public attention. But another recent wave of more modest-looking abortion restrictions consists of laws regulating the geography of abortion provision through management of spaces, places, and borders. In the 1990s and early 2000s, numerous states adopted laws regulating the physical spaces where abortions can be performed. These laws include mandates that abortions be performed in particular kinds of places, such as ambulatory surgical centers, or that abortion-providing facilities have agreements in place with local hospitals. One consequence of such regulations has been to reduce the availability of abortion …

Environmental Protection And Human Rights In The Pandemic, Sarah C. Slinger, Maria Antonia Tigre, Natalia Urzola

Faculty Publications

The Covid-19 outbreak in 2020 took the world by surprise. The virus spread quickly around the globe and death tolls were constantly on the rise at early stages of the pandemic. Although vaccine rollouts have helped halt the number of deaths, inequality in accessing vaccines and effective treatments is still a major issue. From the onset, Covid-19 negatively impacted global well-being and myriad human rights. The present report examines how environmental protection and related human rights have been affected by the Covid-19 pandemic. Based on link between environmental and human health, this report focuses on ecological human rights. The report …

The Discounted Labor Of Bipoc Students And Faculty, Taleed El-Sabawi, Madison Fields

Faculty Publications

Black Law Students experienced a different COVID-19 pandemic than their majority counterparts due in part to the emotional and physical toll caused by the violent, public mistreatment of Black persons at the hands of law enforcement. While some law faculty at some institutions were proactive in identifying the struggles that their Black students were facing, most law faculty and administrators did nothing—prompting Black students to take time away from their studies to organize, draft letters, gather signatures, and have very uncomfortable conversations with university administrators and faculty about the need for change. Meanwhile, Black faculty and faculty of color, who …

The Aia At Ten - How Much Do The Pre-Aia Prior Art Rules Still Matter?, Colleen Chien, Janelle Barbier, Obie Reynolds

Faculty Publications

As the America Invents Act (AIA) turns 10, patent students across the
country may ask: if the law is already a decade old, why am I spending so much
time studying pre-AIA law? Though patents filed before the transition date will
remain in force up through March 2033, a good 10+ years away, teachers may also
be wondering which regime to emphasize and for how long the pre-AIA rules will
be considered fundamental rather than footnote material.

What’S In A Name? Strict Scrutiny And The Right To A Public Trial, Stephen Smith

Faculty Publications

The right to a public trial has only rarely been addressed by the Supreme Court, but in Waller v. Georgia, the Court set forth a test for determining when it is appropriate to close a courtroom to the public, despite the general public trial command. The language of the Waller test suggests great rigor. This essay proposes a reconsideration of the test for courtroom closures, rethinking whether traditional strict scrutiny thinking is appropriate in this constitutional and practical context. That said, this essay does not argue with Waller’s broad outlines. Courts making closure decisions should consider reasons and …

Creating Space For Community Representation In Police Reform, Ayesha Bell Hardaway

Faculty Publications

Input from affected communities is an essential component of the reform process aimed at remedying unconstitutional police practices. Yet, no court in DOJ-initiated police reform consent decree cases has ever granted a community organization’s motion to intervene as a matter of right. Judicial opinions in those cases have largely truncated the Federal Civil Rule 24 analysis when evaluating the interests of impacted communities. Thus, the most success achieved by a small few has been permissive intervention or amici status. The models used by the Department of Justice to elicit the community perspective have largely been frustrating and have failed to …