Law Commons^™

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Law professors enjoy marking up drafts of papers with "Do Not Cite or Circulate" notifications - hoping that doing so will manage reader expectations, preserve their reputations, and prevent misuse of works-in-progress.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.

Trademark Proprietors' "Moral Right" As An Exception To The Doctrine Of Exhaustion Of Rights In Trademarks, Sahana Simha, Ram Mohan M P

American University Business Law Review

Trademark law is primarily viewed as a consumer protection law. Proprietary and consumer interests are not always balanced. This is especially the case with the doctrine of exhaustion of rights in trademarks, where the trademark owner loses control over the further distribution of their trademarked product once sold. Existing statutory exceptions to this doctrine allow the proprietor to take action against resellers only when the product has been impaired or changed. The exceptions do not account for harm or damage to the reputation and goodwill associated with a trademark as a ground to override exhaustion. This article analyzes legislative and …

The Death Of Amateurism: How A Vertical Restructuring Of The Ncaa Could Preserve Its Role As The Governing Body Of Collegiate Athletics, Miles M. Mcdonald

American University Business Law Review

The National Collegiate Athletic Association (NCAA) is struggling to survive as an organizational entity because of near-constant litigation over university and student-athlete rights. As we enter an era of “amateur” sports where student-athletes can earn unrestrained financial compensation for their efforts, the NCAA is struggling to convince stakeholders that it has a worthwhile plan for the everchanging landscape of collegiate athletics. The NCAA retained a purpose as a governing entity when its rules relating to financial inducements and transfer eligibility were enforceable. Now, stakeholders look to separate themselves from the NCAA. To maintain a purpose and survive as the governing …

Bringing The Antiquities Act Into The Modern Age, Chad Squitieri

Scholarly Articles

The Antiquities Act empowers the President both to declare national monuments and to reserve the “smallest area” of land compatible with the preservation of such monuments. Modern Presidents have adopted expansive interpretations of those authorities—purporting, for example, to reserve entire “ecosystems” as national monuments, and to claim that the Act’s reference to “land” includes state-sized swaths of the ocean floor. Until recently, Presidents’ expansive readings of the Act have gone largely unchecked by courts. But in Massachusetts Lobstermen’s Ass’n v. Raimondo, Chief Justice Roberts expressed interest in reconsidering “[t]he scope of the objects that can be designated under the [Antiquities] …

Beyond Judicial Dialogue: Reference To Domestic Law By The Inter–American Court Of Human Rights, Soledad Bertelsen

Scholarly Articles

The recent freeze of U.S. funding to the Inter–American Commission on Human Rights serves as a reminder of how fragile the Inter–American System of Human Rights truly is. The effectiveness of the Inter–American institutions largely depends on their legitimacy in the eyes of the member states. This article argues how the legitimacy of the Inter–American Court can be enhanced by the language used in its judgments. The paper focuses on how references to domestic law in the case–law of the Inter–American Court can persuade states to comply with its decisions. Citations transcend the much–discussed judicial dialogue since they also reference …

Bruen Was Right, J. Joel Alicea

Scholarly Articles

New York State Rifle & Pistol Association v. Bruen is one of the most methodologically significant—and widely maligned—constitutional law decisions of the last several decades. By rejecting the tiers of scrutiny that have loomed large in rights jurisprudence since the 1960s and substituting a text-and-history test for Second Amendment cases, Bruen signals a potential transformation of American constitutional law far beyond the Second Amendment context. Given Bruen’s methodological significance and the text-and-history approach it represents, one might have expected that the debate over Bruen would break down along familiar lines, with originalists defending Bruen and non-originalists critiquing it. Yet, the …

Finding The Major Questions Doctrine, Chad Squitieri

Scholarly Articles

The major questions doctrine has been invoked primarily in the rulemaking context, where it requires agencies to identify particularly clear statutory authority before promulgating rules of “major” importance. Some scholars have suggested that the doctrine is a tool that should be limited to agency actions that are purportedly “legislative” in nature (e.g., rule makings)—meaning the doctrine would not apply in other contexts, such as agency adjudications and enforcement actions that may not be similarly “legislative.” This Essay responds by arguing that the major questions doctrine is best understood as a limit on executive authority—meaning the doctrine could apply across a …