Law Commons^™

International Arbitration And Conflicts Of Law: Three Hard Questions For Symeon, Peter B. Rutledge

Scholarly Works

The presence of a foreign element in a legal relationship inevitably introduces intricate choice-of-law issues. This postulate holds especially true in the context of international arbitration. Arbitration involves an exceptional degree of procedural freedom (including over the choice of the applicable law) and a distinctive conflict-of-laws regime that may be unbound from a particular national legal system. This article examines several choice-of-law issues arising in the context of international arbitration. In particular, Section I of this article addresses whether the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards, otherwise known as the New York Convention, is selfexecuting …

Copyright Doctrine Before The Tribunal Of Science: A Response To Professor Silbey, Mateusz Blaszczyk

Scholarly Works

In an important new Article, titled A Matter of Facts: The Evolution of the Copyright Fact-Exclusion and Its Implications for Disinformation and Democracy, Professor Jessica Silbey argues provocatively that we “‘only” know that facts are excluded from copyright protection because Feist Publications v. Rural Telephone Service “says so.” She argues that both the nature and importance of facts has been underdefined and is in flux, nonetheless tracing it to the foundational cases of United States (U.S.) copyright law, and argues for a stronger exclusion of facts, which are publici juris, and belong in the public domain. This central …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Scholarly Works

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder. Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government-backed enforcement. With Green dividends, …

Reflections On The Importance Of Critical Theory To Teaching Environmental Law, Sean M. Kammer

South Dakota Law Review

The freedom of students to learn about critical approaches to understanding their world is under sustained political attack. In this time of increasing environmental peril and political dysfunction, Professor Sean M. Kammer reflects upon the importance of critical theory (including Critical Race Theory) to understanding - and ultimately redressing - the related problems of resource scarcity and environmental degradation. While these problems can surely be described in terms of "economic inefficiencies" or "ecological disturbances," as they most often are, they must also be understood (and taught) as problems of colonial exploitation and violence. For example, one cannot understand Justice John …

Assessing The Past And Future Of Article Iii, Section 12 Of The South Dakota Constitution, Neil Fulton, Madison Gosch

South Dakota Law Review

The framers of South Dakota's Constitution feared corruption among public officials. This inspired them to implement structural checks on corruption in that organic document. One result of that effort was Article III, Section 12. That provision prohibited legislators from entering contracts authorized during their term. It further prohibited legislators from occupying other public offices during the legislative service or being appointed to offices created or given increased compensation during their term. The expansion of state government's reach over time and a recent reinterpretation of Article III, Section 12 raises the question of how well it aligns with current circumstances. This …

Disputing Death: Medical Futility Laws And Procedures To Facilitate End Of Life Discussions Among Patients, Family, And Practitioners, Emily Greco

South Dakota Law Review

In a world of continuous innovation, medical care in particular has changed the way humans experience life and death—lengthening life and slowing death. But where patients have the opportunity to be kept alive with medical intervention, physicians often struggle ethically with administering care that is ultimately futile or medically inappropriate. Many times patients themselves are unable to communicate, incapacitated by their ailment. As a result, surrogates must step in to make decisions on patients’ behalves. Surrogates, acting as advocates for patients, tend to withhold consent when a provider believes continued intervention is futile and wishes to withdraw or withhold treatment. …

Dedication To Bob Morris, South Dakota Law Review, Patrick G. Goetzinger, Jim Becker, Derald Wiehl, Stephanie E. Pochop, Michael W. Day Judge

South Dakota Law Review

No abstract provided.

"Do Not Read", Michael L. Smith

South Dakota Law Review

Law professors enjoy marking up drafts of papers with "Do Not Cite or Circulate" notifications - hoping that doing so will manage reader expectations, preserve their reputations, and prevent misuse of works-in-progress. But mere warnings against citing and circulating fail to accomplish these goals. I propose a better way: legal scholars should affix "Do Not Read" labels to their work. "Do Not Read" labels align with numerous structural incentives and norms that shape legal scholarship and academia - norms that are better embraced than reformed. "Do Not Read" labels promise preservation of reputations, efficient hiring procedures and academic workshops, insights …

United States V. Sioux Nation Of Indians Revisited: Justice, Repair, And Land Return, Frank Pommersheim, Bryce Drapeaux

South Dakota Law Review

The amazing legal journey of this case begins in 1923 and ends with a Sioux Nation of Indians “victory” in the Supreme Court in 1980. Before reaching the Supreme Court, the case was litigated four different times before the Court of Claims because of the ineffective assistance of counsel and the necessity of a congressional statute to clear away the threatening ghost of res judicata. The historical backstory begins not in 1923, but with the signing of the Fort Laramie Treaty of 1868 and the United States’ illegal taking of the sacred Black Hills in1877. And the case does not …

Understanding Rural Legal Deserts To Inform Public Policy: Identifying And Describing Lawyer Gaps In Non-Metropolitan Counties, David J. Peters, Emma Bartling, Emily Meyer

South Dakota Law Review

Rural legal deserts have become a growing topic of interest to legal scholars and social scientists in the U.S. However, current research is limited by measurement issues and by the lack of national-scale analyses. To address these limitations, we identify legal deserts by applying latent profile analysis to lawyer gap rates for N = 2,307 non-metropolitan counties in the U.S. Lawyer gap rates are calculated as local demand for lawyers minus the local supply, using employment in private practice law offices from the Census Bureau. Next, we statistically describe the spatial, demographic, economic, and social characteristics of legal deserts. We …

Cretaceous Calamity: Are Dinosaur Fossils Part Of The Surface Or Mineral Estate, And Why South Dakota Courts Should Adopt The Murray Test?, Cody Hodge

South Dakota Law Review

When dinosaur fossils are discovered, they often mystify the public by providing snapshots of a bygone age. However, the public is seldom exposed to the legal battles that occur behind the scenes regarding fossil ownership. Legal disputes over dinosaur fossils often occur after the mineral rights to a property have been severed from the rest of the property, often achieved via a mineral deed. At the time of severing the mineral from the surface estate, parties to a mineral deed rarely contemplate who should take ownership of dinosaur fossils should they be discovered. When complete specimens of rare species are …

Reevaluating South Dakota's Child Support Deduction: Balancing Retirement Contributions And Children's Needs, Marilyn Trefz

South Dakota Law Review

This article explores how South Dakota’s child support provisions, particularly the 10% allowable deduction for voluntary retirement contributions from parents’ gross income, affect the fair distribution of financial responsibilities between parents. By exploring the historical context and evolution of this statute, this article highlights the challenges and disparities the 10% deduction creates, particularly for custodial parents living in poverty. Through a comparative analysis with other states and a discussion on balancing retirement savings with child support needs, the article argues for reconsideration of the statutory allowance. The article’s aim is to ensure that the next revision of the child support …

Tribes In The Text: How State Constitutions Structure Governmental Relationships With Native Tribes, Paul Baumgardner

South Dakota Law Review

Although there has been a flurry of recent court cases that acknowledge the important role of state governments in tribal affairs, relatively little scholarly attention has been given to how American states actually relate to Native individuals, communities, or institutions. One way to begin outlining the nature of modern state-tribal relationships is to explore the highest laws within each state and see what these laws have to say about Native Americans. This article does just that, delving into the current state constitutions of all fifty states in the United States to better understand how these documents structure state governmental relationships …

Corruption, Constitutional Legislation, And State Legislative Processes: Lessons From A Comparative And Historical Approach To The Anti-Corruption Provisions In The Legislative Articles Of The Constitutions Of Montana And South Dakota, Kimberly Breedon

South Dakota Law Review

When admitted to the Union in 1889, Montana and South Dakota included two identical anti-corruption provisions in the legislative article of their respective constitutions. One of the measures prohibited bribery of public officials, and the other barred corrupt solicitation by them. These measures reflected a common concern about government corruption in the western territories during the late nineteenth century. Nearly a century later, both states attempted to amend the legislative articles of their constitutions to eliminate the bribery and corrupt solicitation clauses, without substituting similar provisions in their place. In Montana, voters approved the proposed revisions when they voted to …

The Office Of The South Dakota Senate President Pro Tempore, Lee Schoenbeck

South Dakota Law Review

The South Dakota Senate’s history, challenges, and processes, as carried out by the office of the President Pro Tempore, have never before been collected in one place. This article does that and is designed to be a guide for future legislators as they lead and strengthen the institution of the South Dakota Senate.

Compensation Under The Microscope: Connecticut, Jeffrey Gutman

GW Law Faculty Publications & Other Works

With the exception of the District of Columbia, Connecticut has paid exonerees the highest annual amount of compensation for wrongful convictions in the country, almost four times the national average. Perhaps in part because of this, Connecticut is one of a few states that has attempted to limit the scope and generosity of its statute. It, however, later backpedaled on some of those limits.

Then, in a burst of activity in early January 2025, the Connecticut Claims Commissioner cleared a backlog of pending cases, awarding more than $36 million in compensation. The Connecticut statute has thus had three lives, having …

Compensation Under The Microscope: A Tale Of Three States: The New Wrongful Conviction Compensation Statutes In Arizona, Delaware And Georgia, Jeffrey Gutman

GW Law Faculty Publications & Other Works

In 2025, three states passed new wrongful conviction compensation statutes: Arizona, Delaware, and Georgia. They are a diverse group. These states lie in the West, East and South. Delaware is led by a Democratic governor and legislature, while Georgia’s are Republican. Arizona has a Democratic governor, but both houses of the state legislature have Republican majorities. Delaware has just four exonerees listed in the National Registry of Exonerations. Arizona has 25 and Georgia 52. Before passing its statute, Georgia had the second most exonerees (behind Pennsylvania) in a state without a statute.

Given these varying backgrounds, one might expect substantial …

Precedential Trauma: Integrating Trauma-Informed Judging In Federal Courts Of Appeals Through Opinion Writing, Alison Brochu

Roger Williams University Law Review

No abstract provided.

State V. Garcia, 316 A.3d 1223 (R.I. 2024), Isabelle Ryan

Roger Williams University Law Review

No abstract provided.

Judge William E. Smith: Portrait Of A Jurist And Leader, Gregory W. Bowman

Roger Williams University Law Review

No abstract provided.

Reading The Tea Leaves: Unrealized Income, Separation Of Powers, And An Examination Of Whether There Is More To The Moore Case Than The Mandatory Repatriation Tax, Natasha Varyani

Roger Williams University Law Review

No abstract provided.

Neves V. State Of Rhode Island, 316 A.3d 1197 (R.I. 2024), Evan Degaitas

Roger Williams University Law Review

No abstract provided.

Tribal Recognition And Rhode Island: Towards A Recognition Process For The Ocean State, Declan Smith

Roger Williams University Law Review

No abstract provided.

Last Resort: Advocating For Rhode Island To Adopt A More Comprehensive Homeless Bill Of Rights In The Wake Of Grants Pass V. Johnson, Casey Rivera

Roger Williams University Law Review

No abstract provided.

Changemakers: Steven Colantuono: Juris Doctorate: Embracing The Road To Success, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Executory Contract Provisions That Provide Solely For An Equitable Remedy Are Enforceable Post-Rejection., Ashley Romeo

Bankruptcy Research Library

(Excerpt)

Under Section 365(a) of title 11 of the United States Code (the "Bankruptcy Code"), "a trustee [or debtor in possession], subject to the court’s approval, may assume, or reject an executory contract." Generally, a contract is executory if "performance remains due to some extent on both sides." In general, a debtor may decide whether its executory contract is a good deal going forward. The debtor will likely want to reject a contract that is no longer a good deal in order to repudiate any further performance of its duties. When reviewing the trustee or debtor-in-possession’s decision to assume or …

Adding A Data Disclosure Requirement To The Faa: An Overdue Reform, Richard Frankel

American University Business Law Review

Artificial intelligence (AI) and predictive analytics are transforming almost every sector of society. The field of dispute resolution is no exception to this trend. Lawyers in emerging disputes are hungry for data about arbitrators and judges, prior decisions, similar disputes, and anything else they can get their hands on.

Towards The Faa's Next Century: Clarifying Disclosure Requirements In Arbitration, Andrea K. Schneider, Brian Farkas

American University Business Law Review

In the summer of 2024, all eyes were on Paris. Thousands of athletes from over 200 countries competed in over 300 sports. The Olympics is nationalism at its healthiest: cheering for one's own nation, while recognizing the fundamentally transnational human values of pluralism, diversity, and aspiration.

Facilitating Trust Arbitration By Amending The Federal Arbitration Act, S. I. Strong

American University Business Law Review

Over the last few years, a new dispute resolution procedure has burst onto the domestic and international stage: trust arbitration, which allows an arbitration provision located in a trust to trigger arbitration of "internal" trust disputes arising either between trust beneficiaries or between beneficiaries and the trustee.

Certainly Uncertain: An Analysis Of The Patent Eligibility Restoration Act Of 2023, Charles Duan

American University Business Law Review

Patentable subject matter eligibility has been a topic of major policy debate over many years, culminating in the recent introduction of a bill that would entirely overhaul current law. This article reviews the proposed legislation in view of its historical context, the purported need to reduce uncertainty, and the likely effects of the bill. Based on this analysis, the article concludes that the legislation is unnecessary, ill conceived, and likely to be harmful to scientific research, a variety of industries, and the public good.