Law Commons^™

Press Freedom's History And Tradition, Ronnell Andersen Jones, Sonja R. West

Scholarly Works

Backward-looking, history-and-tradition analysis is gaining greater prominence at the U.S. Supreme Court. While the Court has not yet explicitly applied its history-and-tradition framework to press freedom questions, the methodology’s dominance across other areas, coupled with some urgent concerns about the scope of newsgatherer protections and some Justices’ interest in reconsidering long-established precedent, suggest that this application could be imminent. In anticipation of that moment, we set out to empirically map the Court’s engagement with the history and tradition of press freedom in its rhetoric over time. Our goals were to explore, both quantitatively and qualitatively, how the Court’s Justices have …

An Analysis Of Pediatric Retinoblastoma Medical Malpractice Litigation, Victoria Miller, Alyssa D. Reese, Katherine Foote, Alejandro Navarro, Andrew Galfano, Christian Hietanen

Department Surgery Faculty Publications

BACKGROUND: Retinoblastoma is a cancer of the retina that is most commonly diagnosed in the pediatric population. Unfortunately, this cancer can spread, leading to poor outcomes such as enucleation. The purpose of this study was to determine the characteristics of medical malpractice litigation associated with a diagnosis of retinoblastoma in the pediatric population.

METHODS: A search for all available cases associated with "retinoblastoma" in the Westlaw Campus Research Legal Database was conducted. This spanned from database inception to August 2023. Cases were included if there was a complaint of medical malpractice related to retinoblastoma present in a pediatric patient. Demographic …

A More Perfect Union? (Reviewing Erwin Chemerinsky, No Democracy Lasts Forever: How The Constitution Threatens The United States (2024)), Neil Fulton

South Dakota Law Review

It is a bold claim that the United States Constitution is a threat to democracy in the United States. It is certainly a claim that most would reject outright or be highly skeptical of at least. It is, however, exactly the claim that Erwin Chemerinsky makes in his book No Democracy Lasts Forever.

Erwin Chemerinsky is a prolific scholar, particularly of constitutional law. It is not surprising that he would produce a timely, topical, and thought-provoking book on the subject. What is surprising is his fundamental premise that the Constitution itself threatens democracy in the United States today. This provocative …

The Trial Of Socrates, Jonathan K. Van Patten

South Dakota Law Review

In many important ways, the trial of Socrates was not just the trial of the century, nor even the trial of the millennium. It predated the trial of Jesus, which is important for many other reasons, but Socrates’ contribution to how we think about justice and the rule of law is without equal. This Article explores the ways that this fifth-century B.C. trial, located geographically on the margin of what came to be known as the West, is at the center of what makes us a civilization. It is not simply about the drama, nor the politics of free inquiry, …

Oversight Of Conservatorships And Guardianships In South Dakota: A Call For Legislative Reform, Peyton Forney-Rassat

South Dakota Law Review

Courts have the legal and ethical duty to monitor guardianship and conservatorship cases in order to protect the rights and livelihoods of persons subject to such arrangements. With increased aging populations and people with disabilities in America, this has become an area of concern for both federal and local governments. Lack of data regarding the number of guardianships and conservatorships present in America, as well as the number of individuals subject to abuse in such arrangements, has become difficult to address. However, recent highly publicized cases have brought this issue to the forefront of many American minds. The number of …

Common Law Creep And Judicial Optionality: A Measured Critique Of Restrictive Covenant Law In South Dakota, Alex M. Hagen

South Dakota Law Review

South Dakota law governing restrictive covenants establishes a statutory framework with a simple structure: a general prohibition against restraints on trade, subject to four narrow exceptions. In theory, courts need only determine whether a challenged covenant falls within a statutory exception. In practice, however, courts exercise far broader discretion, applying elaborate analyses that extend well beyond statutory boundaries. In this Article, I critique the current doctrine of restrictive covenant law in South Dakota and contend that the judiciary has provided itself with too many options in deciding how these types of contractual agreements will be assessed and played too active …

Protecting Democracy Through Servant Leadership Actions On The Jury Trial System, Laura Anne Rose

South Dakota Law Review

In the face of the declining use of the right to trial by jury, this article argues for more action by members of the legal profession, and specifically action grounded in the principles of servant leadership. The article covers the historic roots of the right to trial by jury before turning to its importance in the areas of civic education, continuing legal education, legislative efforts, and innovative interdisciplinary courses in legal education. The article posits that members of the legal profession in all stages of their careers must defend the right to trial by jury through servant-leader based action in …

An Empirical Analysis Of Statutory Enactment And Interpretation In South Dakota: Are We Aligned?, Neil Fulton, Zane Rankin

South Dakota Law Review

Statutes have supplanted the common law as the primary source of American law. It is accordingly vital to evaluate how statutes are applied and interpreted. Most statutory interpretation scholarship focuses on enactments by Congress, is based on the perspective of courts alone, and uses non-empirical analysis. This article takes a different perspective. The article focuses on South Dakota statutes and the legislative process. It is centered on an empirical survey of legislators, lobbyists, and professional staff to ascertain their beliefs and preferences about how statutes are enacted and how they should be used. These observations are then compared with existing …

May It Please The Artificial Intelligence: Experimental Ai-Authored Jurisprudence And Authentic Human-Authored Counterparts, Justin Huston, Thomas E. Simmons

South Dakota Law Review

Artificial Intelligence (AI) is rapidly intruding into many professions, from publishing and healthcare to engineering, graphic design, and the law. Law firms are adopting AI for discovery, factual summaries, and briefing. Many courts are embracing AI to streamline docket management and filings. Even some judges are experimenting with AI. This article describes an experiment with the use of an AI Judge to decide both an expert witness issue embedded in a South Dakota Supreme Court appeal and a South Dakota Circuit Court legal malpractice issue. We then compare the AI-generated opinion with the opinions penned by the Judge and Justice, …

Protecting The Due Process Rights Of South Dakota Treatment Court Participants Facing Termination, Ryleigh Christopherson

South Dakota Law Review

Treatment courts in South Dakota are designed to reduce recidivism by treating the root cause of criminal behavior. The data shows that, of the almost three thousand participants who have applied and been selected to take part in a South Dakota treatment court, over a thousand participants have successfully graduated from these post-plea diversion programs. A slight majority of participants, however, did not complete the program and either left voluntarily or were terminated from treatment court. The apparent success of treatment courts can overshadow due process concerns which arise when a participant faces termination. While the Supreme Court of the …

Access To Justice In Indian County: Strengthening The Ecosystem Of Law In Native Communities, Mary Smith

South Dakota Law Review

No abstract provided.

Criminal Incidence In Indian Country: Evidence From The Fbi Uniform Crime Reporting Program, K. Aleks Schaeffer, Brian E. Whitacre

South Dakota Law Review

This article examines patterns of criminal incidence in Indian Country using longitudinal, county-level data from the FBI’s Uniform Crime Reporting (“UCR”) Program.  Public discourse and policy debates frequently assume that areas containing tribal lands experience systematically higher levels of crime—particularly violent crime—yet these assumptions are often based on anecdotes, selective statistics, or aggregated victimization reports rather than comprehensive comparative evidence.  Against this backdrop, this article asks a straightforward but underexplored question: how do reported crime rates in counties that include tribal lands compare to those in counties without tribal lands, once socioeconomic and demographic differences are accounted for?

Using data …

Filling The Tribal Court Attorney Need Through Tribes Licensing Their Own Attorneys, Nicholas James Stamates

South Dakota Law Review

The need for attorneys in Indian country to fill the positions of tribal prosecutors and tribal public defenders in criminal cases is dire. There are many postings on jobs sites such as Indeed and Zip Recruiter for tribal prosecutor and tribal public defender jobs in the $60,000 to $90,0000 a year salary range constantly being reposted for months—even years. Simply put, the Tribes cannot fill these positions at the salaries they are willing to pay or can afford due to their rural locations. 2024 data from Bryce Drapeaux & Hannah Haksgaard published in the South Dakota Law Review showcased how …

Regulating For Birth Justice, Jamille Fields Allsbrook

Lewis & Clark Law Review

Impacted persons have shared accounts of traumatic birthing experiences, and advocates have raised the alarm on the urgent need to advance birth justice. Despite this raised awareness, women and birthing people are still dying and suffering unnecessarily. Even more, systems are still structured to impede birthing choices, particularly those from marginalized communities such as Black and Indigenous women. Notably, over 80% of U.S. maternal deaths are preventable, according to federal government data. Ironically, the same laws and systems that have created, perpetuated, and tolerated birth injustices can be leveraged to move the country towards birth justice. On the national level, …

Front Matter

Lewis & Clark Law Review

Front Matter contains Table of Contents, Masthead, and faculty for Lewis & Clark Law Review Volume 30, Issue 2.

A Corporate Accountability “Turn” In International Climate Litigation, Jacqueline Peel

Lewis & Clark Law Review

Corporations are among the most significant emitters of anthropogenic greenhouse gases, which are responsible for the existential threat of climate change. Yet accountability for corporate emitting activities has been difficult to secure, particularly where companies operate across nation-state borders or have global value chains. This Essay looks at recent developments in international law, found in a series of climate-related advisory opinions issued by international courts and tribunals, which may signal greater corporate accountability for climate harms. It argues that the recent advisory opinions of the International Tribunal for the Law of the Sea, the Inter-American Court of Human Rights, and …

Catching The Forgotten: Repairing The Safety Net For Cofa Migrants In The United States, Brian Aguilar

Lewis & Clark Law Review

Citizens of the Freely Associated States—the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Belau—are permitted to live and work in the United States without a visa under the Compacts of Free Association (COFA). Yet, for nearly three decades, COFA migrants were excluded from the federal public benefits safety net. This exclusion, a product of legislative oversight in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, devastated communities like the Marshallese in Springdale, Arkansas, who endured dangerous working conditions, poverty, and severe health vulnerabilities without access to critical federal benefits programs. While …

Law And The Moral Geography Of Urban Education, Rebecca Horwitz-Willis

Lewis & Clark Law Review

In contemporary discussions, urban schools are often labeled as “bad,” while suburban schools are generally regarded as “good.” These assessments are typically based on achievement metrics, resource allocations, and the demographics of student populations. However, this Article offers a new lens through which to analyze the valuation of urban schools: the relationship between local vice regulation and what I term “educational geographies” in urban areas. Specifically, it argues that the location of vice institutions in cities has disproportionately impacted Black neighborhoods, thereby devaluing the educational geographies within these communities. These distributions do not just impact market value, but rather, also …

Whose Month Is It? Stub Rent Under §§ 365(D)(3) And 503(B)(1), Shukhrat Muratov

Bankruptcy Research Library

(Excerpt)

Courts are divided on whether landlords are entitled to immediate payment of this rent obligation under 11 U.S.C. § 365(d)(3) or must seek recovery through administrative expense claims under 11 U.S.C. § 503(b)(1). The majority of circuit courts, including the Third, Sixth, and Seventh Circuits, follow the billing date approach, holding that rent obligations arise when due under the lease, meaning that rent due on the first of the month arises entirely pre-petition if the bankruptcy filing occurs later in the month. Under this approach, landlords are not entitled to prompt payment of stub rent under § 365(d)(3). They …

Dischargeability Of Student Loan Debt In Bankruptcy Cases, Dean Van Noy

Bankruptcy Research Library

(Excerpt)

Student loan debt represents one of the largest categories of consumer debt in the United States. Currently, statistics show that there is $1.8 trillion in outstanding student-loan debt owed by approximately 42.5 – 45.8 million debtors. This statistic can be attributed to the fact that the cost of higher education has increased significantly. Department of Education data shows that average tuition prices have more than doubled at colleges and universities around the country over the last three decades. As a direct consequence of this continuously increasing cost of tuition, many debtors have struggled to pay back their student-loan debt, …

Corporate Structuring, Ip Holding Companies & Bankruptcy, Ava Sheftick

Bankruptcy Research Library

(Excerpt)

There are various ways in which the founders of a company may structure their business. While a key focus of corporate planning is how to maximize revenue and operate efficiently, minimizing the risk associated with financial distress is an equally important consideration. A corporation’s structure is made during a time of stability, but it must account for the ultimate financial distress—bankruptcy. Asset allocation is a critical step in the planning stage of a business enterprise, especially when considering creditors the company is going to take on. Companies’ intellectual property ("IP") may be highly valuable assets that must be considered …

Alabama School Of Law Scrapbook Collection, University Of Alabama School Of Law

Manuscript Collections

The Alabama School of Law Scrapbook Collection contains scrapbooks pertaining to The University of Alabama Law School. The collection contains newspaper clippings and photos concerning the Law School, students, and faculty, and staff.

Civil Rights Era Newspaper Collection, University Of Alabama School Of Law

Manuscript Collections

The Civil Rights Era Newspaper Collection consists of newspapers from The Birmingham Post-Herald, The Birmingham News, The Crimson White, The Atlanta Constitution, The Atlanta Journal, and The Tuscaloosa News.

Cecil Maxwell Deason Collection, University Of Alabama School Of Law

Manuscript Collections

This collection contains personal papers and photographs from Alabama state trial court judge and assistant solicitor Cecil Maxwell Deason from his times serving in the Pacific theatre of WWII, on the bench in Jefferson county, and in the solicitor's office.

John Patterson Papers, University Of Alabama School Of Law

Manuscript Collections

The John Patterson Papers consist of documents from Governor Patterson. The collection is comprised of materials from the Commission for Judicial Reform, including pamphlets, miscellaneous materials, letters, handwritten notes, and newspaper clippings.

Kenneth Allison Roberts Collection, University Of Alabama School Of Law

Manuscript Collections

The Kenneth Allison Roberts Collection consists of documents, manuscripts, diaries, photographs, and artifacts deposited with the Bounds Law Library by the family of Congressman Roberts.

Turner Reavis Collection, University Of Alabama School Of Law

Manuscript Collections

This collection includes documents, photographs, and materials pertaining to the life, career, and extended family history of Turner Reavis (June 18, 1812 - June 13, 1872). Reavis was a businessman, attorney, judge, state senator, and a published author.

Survey Of The Political Climate In Alabama, March 1977, University Of Alabama School Of Law

Manuscript Collections

This binder contains an in-depth survey of voters in the 1978 Democratic primary for governor and United States Senate.

"A Southerner's Plan For Desegregation" Journal Collection, University Of Alabama School Of Law

Manuscript Collections

“A Southerner’s Plan for Desegregation” is a 13-page memoir and manifesto concerning aspects of civil rights. It was anonymously written in the 1950s. The work is composed in a Queen Elizabeth II coronation journal.

James T. Kirk Notebook, University Of Alabama School Of Law

Manuscript Collections

James T. Kirk was born in Franklin County, Alabama, and practiced law in Tuscumbia after being admitted to the bar in 1880. The James T. Kirk Notebook is a lawyer's "common-place book" with an alphabetically arranged index of titles generally used in the practice and study of law.