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2018

University of South Carolina

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Articles 1 - 30 of 55

Full-Text Articles in Law

The Private Insurance Market: Not Very Big And Not Insuring Much, Either, Jacqueline R. Fox Dec 2018

The Private Insurance Market: Not Very Big And Not Insuring Much, Either, Jacqueline R. Fox

Faculty Publications

Creating a single national health insurance pool is not likely to destabilize the economy by supplanting the private health insurance industry. This industry insures a relatively small percentage of the population and holds very little of the risk such insurance implies. In effect, insurance companies function as middlemen, bundling risk packages to distribute to other, larger companies and so serve a limited purpose. Were insurers to handle claims for a national pool as they do for the Medicare program, any destabilization to the economy more broadly would be further minimized.


Plea Agreements As Constitutional Contracts, Colin Miller Dec 2018

Plea Agreements As Constitutional Contracts, Colin Miller

Faculty Publications

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes. Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion. No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes. This gap is concerning given that ninety-five percent of criminal cases …


Bar Bytes: Books Help Lawyers Learn Technology, Eve Ross Nov 2018

Bar Bytes: Books Help Lawyers Learn Technology, Eve Ross

Faculty Publications

No abstract provided.


The New Gospel Of Wealth: On Social Impact Bonds And The Privatization Of Public Good, Etienne C. Toussaint Oct 2018

The New Gospel Of Wealth: On Social Impact Bonds And The Privatization Of Public Good, Etienne C. Toussaint

Faculty Publications

Since Andrew Carnegie penned his famous Gospel of Wealth in 1889, corporate philanthropists have championed considerable public good around the world, investing in a wide range of social programs addressing a diversity of public issues, from poverty to healthcare to criminal justice. Nevertheless, the problem of “the Rich and the Poor,” as termed by Andrew Carnegie in his famous essay, remains unsolved. Socially conscious investors have recently called for America to reimagine a new “gospel of wealth”, one that not only grapples with the what of social injustice, but also explores the how and the why of systemic social and …


Avoiding The Wrecking Ball Of A Disastrous Cross Examination: Nine Principles For Effective Cross Examinations With Supporting Empirical Evidence, Harry M. Caldwell, Deanne S. Elliot Oct 2018

Avoiding The Wrecking Ball Of A Disastrous Cross Examination: Nine Principles For Effective Cross Examinations With Supporting Empirical Evidence, Harry M. Caldwell, Deanne S. Elliot

South Carolina Law Review

No abstract provided.


When Courts Should Ignore Statutory Text, Jesse M. Cross Oct 2018

When Courts Should Ignore Statutory Text, Jesse M. Cross

Faculty Publications

Statutory interpreters often rely upon a fundamental assumption: namely, that every word of a statute is meant to be read — and given legal force — by the courts. This assumption unites both textualists and intentionalists, and it has been invoked by Justices as diverse as Chief Justice Marshall, Justice Stevens, and Justice Scalia — the last of whom called it a “cardinal rule of statutory interpretation.” It underpins at least nine separate canons of statutory interpretation, and it even shapes how courts interpret legislative documents beyond statutes. It is difficult to imagine a more central assumption in statutory interpretation. …


Understanding The Crime-Fraud Exception To The Attorney-Client Privilege And Work Product Immunity, Douglas R. Richmond Oct 2018

Understanding The Crime-Fraud Exception To The Attorney-Client Privilege And Work Product Immunity, Douglas R. Richmond

South Carolina Law Review

No abstract provided.


College Esports: A Model For Ncaa Reform, Thomas A. Baker Ii, John T. Holden Oct 2018

College Esports: A Model For Ncaa Reform, Thomas A. Baker Ii, John T. Holden

South Carolina Law Review

No abstract provided.


Stories Of Experience: Economic Inequality In Mediation, Robert Rubinson Oct 2018

Stories Of Experience: Economic Inequality In Mediation, Robert Rubinson

South Carolina Law Review

No abstract provided.


Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty And The Right To Exclude, Josh Eagle Oct 2018

Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty And The Right To Exclude, Josh Eagle

Faculty Publications

Over the past few decades, landowners have tried to use the First, Fourth, and Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts were to succeed, there would be a host of negative consequences, and not just for surfers. In most of the states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would mean little to no public access at times when the public, wet-sand part of the beach is submerged, that is, in the hours immediately before and after high tides. Decreased beach use would …


Preferencing Educational Choice: The Constitutional Limits, Derek Black Sep 2018

Preferencing Educational Choice: The Constitutional Limits, Derek Black

Faculty Publications

Rapidly expanding charter and voucher programs threaten a new education paradigm in which access to traditional public schools is no longer guaranteed in some communities. In some instances, choice programs are phasing out traditional public schools altogether. The most harmful effects of choice, however, occur at the local level, not the state level. Thus, this Article does not challenge the general constitutionality of choice programs. Instead, the Article identifies limitations that state constitutional rights to adequate and equal education place on choice policy.

First, states cannot preference private choice programs over public education. This conclusion flows from the fact that …


Table Of Contents Jul 2018

Table Of Contents

South Carolina Law Review

No abstract provided.


Crashworthiness: The Collision Of Sellers' Responsibility For Product Safety With Comparative Fault, F. Patrick Hubbard, Evan Sobocinski Jul 2018

Crashworthiness: The Collision Of Sellers' Responsibility For Product Safety With Comparative Fault, F. Patrick Hubbard, Evan Sobocinski

South Carolina Law Review

No abstract provided.


Disturbing Schools Law In South Carolina, Kristen Coble Jul 2018

Disturbing Schools Law In South Carolina, Kristen Coble

South Carolina Law Review

No abstract provided.


Dollars And Sense: Why Allocating Additional Funding To The Department Of Corrections Is A Smart Investment For South Carolina, Eric E. Waldron Jul 2018

Dollars And Sense: Why Allocating Additional Funding To The Department Of Corrections Is A Smart Investment For South Carolina, Eric E. Waldron

South Carolina Law Review

No abstract provided.


Strippers, Uber Drivers, And Worker Status In South Carolina, Axton D. Crolley Jul 2018

Strippers, Uber Drivers, And Worker Status In South Carolina, Axton D. Crolley

South Carolina Law Review

No abstract provided.


Death By Dicta: The Life Of The Sophisticated User Doctrine In South Carolina Products Liability Law, Christopher Henry Jul 2018

Death By Dicta: The Life Of The Sophisticated User Doctrine In South Carolina Products Liability Law, Christopher Henry

South Carolina Law Review

No abstract provided.


The Use Of Preemption To Limit Social Progress In South Carolina: The Road To The Bathroom Bill,, William Peter Maruides Jul 2018

The Use Of Preemption To Limit Social Progress In South Carolina: The Road To The Bathroom Bill,, William Peter Maruides

South Carolina Law Review

No abstract provided.


Contemporary Tastes; How South Carolina's Regulation Of The Craft Beer Industry Could Better Reflect Modern Societal Attitudes And Current Industry Needs, Daniel Wilson Jul 2018

Contemporary Tastes; How South Carolina's Regulation Of The Craft Beer Industry Could Better Reflect Modern Societal Attitudes And Current Industry Needs, Daniel Wilson

South Carolina Law Review

No abstract provided.


A Time To Kill Hate: A Case For A Hate Crime Law In South Carolina, Erica G. Safran Jul 2018

A Time To Kill Hate: A Case For A Hate Crime Law In South Carolina, Erica G. Safran

South Carolina Law Review

No abstract provided.


First, Do No Harm, Curtis J. Copeland Jul 2018

First, Do No Harm, Curtis J. Copeland

South Carolina Law Review

No abstract provided.


Crashworthiness: The Collision Of Sellers' Responsibility For Product Safety With Comparative Fault, F. Patrick Hubbard, Evan Sobocinski Jul 2018

Crashworthiness: The Collision Of Sellers' Responsibility For Product Safety With Comparative Fault, F. Patrick Hubbard, Evan Sobocinski

Faculty Publications

Crashworthiness cases often involve the following issue: Should any wrongdoing by the plaintiff in causing the initial collision reduce or bar the plaintiff’s recovery for defective crashworthiness? Jurisdictions disagree on the answer to this issue. This disagreement results in large part from differing positions on two questions. First, should products liability law use duty rules to impose liability in a way that ensures efficient accident cost reduction or should it seek fairness through relatively unstructured jury allocations of liability based on fault? Second, in addressing the first issue, should for-profit corporations be viewed as: (1) “tools” to achieve human goals …


Benefit Corporations And The Separation Of Benefit And Control, Emily R. Winston Jun 2018

Benefit Corporations And The Separation Of Benefit And Control, Emily R. Winston

Faculty Publications

Scholars, activists, and other observers have expressed concern about the social effects of corporate activity in the United States since as early as the nineteenth century. A recurring theme in this debate has been whether corporations’ focus on shareholder interests causes them to neglect and harm the interests of other constituencies affected by corporate activity. A recent and prominent effort to address this concern is the social enterprise movement, which is unique because it has resulted in the creation of entirely new business entities designed specifically for for-profit businesses devoted to pursuing social missions. One of the most widely adopted …


Work Expectations And The Able-Bodied Adult: Myths And Realities In Food Stamp Reform, Elizabeth Patterson May 2018

Work Expectations And The Able-Bodied Adult: Myths And Realities In Food Stamp Reform, Elizabeth Patterson

Faculty Publications

Since at least 2012 congressional Republicans have been seeking ways to strengthen work requirements in the SNAP (Food Stamp) program as a means both for reducing the size and cost of the program and for reinforcing the moral value of work. Most of these proposals have built on an existing requirement that limits access to SNAP benefits for able-bodied adults without dependents (ABAWDs) who are not working at least half-time. Implicit in this requirement are assumptions about the inherent employability of able-bodied adults and the availability of a sufficient number of suitable jobs into which they can be hired. In …


When To Praise The Machine: The Promise And Perils Of Automated Transactional Drafting, William E. Foster, Andrew L. Lawson Apr 2018

When To Praise The Machine: The Promise And Perils Of Automated Transactional Drafting, William E. Foster, Andrew L. Lawson

South Carolina Law Review

No abstract provided.


Work Only We Can Do: Professional Responsibility In An Age Of Automation, Sherman J. Clark Apr 2018

Work Only We Can Do: Professional Responsibility In An Age Of Automation, Sherman J. Clark

South Carolina Law Review

No abstract provided.


Revenge Against Robots, Christina Mulligan Apr 2018

Revenge Against Robots, Christina Mulligan

South Carolina Law Review

No abstract provided.


Harvesting And Utilizing Explanatory Parentheticals, Pablo D. Arredondo Apr 2018

Harvesting And Utilizing Explanatory Parentheticals, Pablo D. Arredondo

South Carolina Law Review

No abstract provided.


Could Ai Agents Be Held Criminally Liable: Artificial Intelligence And The Challenges For Criminal Law, Dafni Lina Apr 2018

Could Ai Agents Be Held Criminally Liable: Artificial Intelligence And The Challenges For Criminal Law, Dafni Lina

South Carolina Law Review

No abstract provided.


A Human Capital Theory Of Alimony And Tax, Tessa R. Davis Apr 2018

A Human Capital Theory Of Alimony And Tax, Tessa R. Davis

Faculty Publications

The current taxation of alimony is a broken scheme. Severed from any strong theoretical mooring, it draws lines in the sand between property settlement, child support, and alimony. The lack of coherence between the substance of alimony in family law and the tax concept of alimony (“tax alimony”) could be justified on other policy grounds, however. Yet current law, which allows the payor a deduction under §215 and requires inclusion by the recipient per §71, is difficult to interpret, resulting in frequent litigation and costly noncompliance. In short, the current concept of tax alimony fails to satisfy any of the …