Volume 64, Book 4
The Board of Editors of the South Carolina Law Review would like to congratulate the following students whose manuscripts were selected for publication in this summer’s Survey of South Carolina Law:
BONNIE E. BULL
In Pursuit of a Remedy:
A Need for Reform of Police Officer Liability
EMILY A. EVANS
A Jurisprudence Clarified or “McLeod-ed”?:
The Real Constitutional Implications of Court-Mandated
Post-Secondary Educational Support
KARA S. GREVEY
An Exaggerated Response:
Possible Reactions to Florence v. Board of Chosen Freeholders of the
County of Burlington in South Carolina
JORDAN MICHAEL JANOSKI
Extraordinary and Unusual Circumstances:
The Compensability of Psychological Injuries Under South Carolina
Workers’ Compensation Law
SARAH KATHERINE JOHNSON
School Choice in South Carolina:
An Analysis of Whether Private School Tax Credits are Right for South Carolina
WESLEY BENJAMIN LAMBERT
The Price of Life:
A Prediction of South Carolina’s Approach to Expert Testimony
on Hedonic Damages Using the Willingness-to-Pay Method
PIERCE T. MACLENNAN
A Long Way from Home:
Slow Progress Toward “Home Rule” in South Carolina and a Path to Full Implementation
Delimiting Liability for South Carolina Limited Liability Corporations:
When Can an LLC Manager be Personally Liable for Tortious Interference
PHILLIPS L. MCWILLIAMS
Magnolia North Property Owners’ Association v. Heritage Communities, Inc:
The South Carolina Court of Appeals’ End Run Around the Necessity of Equitable
Justification when Disregarding the Corporate Form
STEPHEN D. SUTHERLAND
“Ownerfelonburglarzoid” on Trial:
An Analysis of South Carolina Burglary Law After State v. Singley
JOHN G. TAMASITIS
“Things Have Changed in the South”:
How Preclearance of South Carolina’s Voter Photo ID Law Demonstrates that
Section 5 of the Voting Rights Act Is No Longer a Constitutional Remedy
VORDMAN CARLISLE TRAYWICK, III
The South Carolina Primary Debacle:
The Impact of Anderson v. South Carolina State Election Commission
and Vague State Election Laws on the 2012 Election
Volume 64′s Board of Editors would also like to congratulate the following students whose case comments were selected for publication in this summer’s Fourth Circuit Survey, on SCLR Online, or both:
TAMARA MARY VAN PALA
The Narrow Scope of Federal Preemption in State Commercial Credit Transactions:
Decohen v. Capital One, N.A.
JENNIFER BUTLER ROUTH
Digital Pillow Talk?
Waiving Marital Privilege at Work in United States v. Hamilton
BRITTANY M. MCINTOSH
Gamecocks Spur Trouble in Jury Deliberations:
What the Fourth Circuit Really Thinks About Wikipedia as a Legal Resource in United States v. Lawson
The following essays and case comments will also appear in Volume 64′s Fourth Circuit Survey:
IS THE FOURTH CIRCUIT STARTING TO HOLD BACK?
EXAMINING POSSIBLE CHANGES IN HOW THE COURT APPROACHES SEARCHES, SEIZURES, AND SUPPRESSION
Derek A. Shoemake
B.S., Old Dominion University; J.D., University of South Carolina School of Law; Law Clerk, U.S. District Judge R. Bryan Harwell.
THE RULE OF LENITY AND HYBRID STATUTES:
WEC CAROLINA ENERGY SOLUTIONS LLC V. MILLER
Stephen Wills Murphy
J.D., Ph.D., University of Virginia; Associate, McGuire Woods LLP; Adjunct Professor Law, Washington & Lee University School of Law.
SETTING CRITICAL LIMITS ON THE CHERRY DOCTRINE:
THE FOURTH CIRCUIT’S DECISION IN UNITED STATES V. DINKINS
Ruth A. Moyer
B.A., Moravian College; J.D., Temple University Beasley School of Law; Associate, Gerald A. Stein, P.C.
TRAFFIC STOPS BASED ON UNCORROBORATED VISUAL SPEED ESTIMATES:
MORE (NEEDED) THAN MEETS THE EYE, SAYS THE FOURTH CIRCUIT
Justin M. Woodard
B.A., Sewanee: University of the South; J.D., Tulane University Law School; Law Clerk, U.S. District Judge David C. Norton.
The Practice of Law in the 21st Century:
The Intersection of Law & Technology
Inadvertent Production of Privileged Information in Discovery in Federal Court: The Need for Well-Drafted Clawback Agreements
-Nathan M. Crystal
A Pragmatic Approach to Discovery Reform: How Small Changes Can Make a Big Difference in Civil Discovery
-Hon. Paul W. Grimm & David S. Yellin
Do You Really Want All that E-Discovery?
-Hon. Shiva V. Hodges
Keeping the Inference in the Adverse Inference Instruction: Ensuring the Instruction Is an Effective Sanction in Electronic-Discovery Cases
-Wm. Grayson Lambert
Fifty Shades of Sanctions: What Hath the Goldsmith’s Apprentice Wrought?
-Justin M. Woodard, Grace A. Cleveland, and the Hon. David C. Norton
Risk Aversion, Risk Management, and the “Overpreservation” Problem in Electronic Discovery
-Kenneth J. Withers
Bleeding Data in a Pool of Sharks: The Anathema of Privacy in a World of Digital Sharing & Electronic Discovery
-Derek S. Witte
Predictive Coding: Emerging Questions and Concerns
-Charles Yablon & Nick Landsman-Roos
Congratulations to Derek A. Webb, winner of this year’s Warren E. Burger Prize!
Mr. Webb is a 2012-2014 Fellow at the Stanford University Constitutional Law Center, and his winning paper is “The Original Meaning of Civility: Democratic Deliberation at the Philadelphia Constitutional Convention.” Click here for additional information about Mr. Webb, and we look forward to publishing his paper later this year.
A Case Study in the Superiority of the Purposive Approach to Statutory Interpretation: Bruesewitz v. Wyeth
Donald G. Gifford
Edward M. Robertson Research Professor of Law
University of Maryland Carey School of Law
William L. Reynolds
Jacob A. France Professor of Judicial Process
University of Maryland Carey School of Law
Andrew M. Murad
Arent Fox LLP
This Article uses the Supreme Court’s 2011 decision in Bruesewitz v. Wyeth to examine the textualist or “plain meaning” approach to statutory interpretation. For more than a quarter-century, Justice Scalia has successfully promoted textualism, usually associated with conservatism, among his colleagues. In Bruesewitz, Scalia, writing for the majority, and his liberal colleague Justice Sotomayer, in dissent, both employed textualism to determine if the plaintiffs, whose child was allegedly harmed by a vaccine, could pursue common law tort claims or whether their remedies were limited to those available under the no-fault compensation system established by the National Childhood Vaccine Injury Act. Despite these Justices’ common approach to statutory interpretation, they reached diametrically opposite conclusions in opinions that dissected the statutory language and quarreled over the meaning of “even though” and “if” clauses. In contrast, Justice Breyer employed a purposive or “purposes and objectives” approach to statutory interpretation. Rather than obsessing over the meaning of each and every phrase, Breyer looked at Congress’s goals in passing the Act. He recognized that Scalia’s conclusion was correct, not because of the supposedly “plain” meaning of specific language, but because this interpretation was the only one that enabled the alternative compensation system to function as Congress envisioned. Other scholars have analyzed Bruesewitz as a preemption case, but despite statutory interpretation’s inherently decisive role in express preemption cases, this is the first Article to highlight Bruesewitz as an illustration of the emptiness of textualism.
Richard A. Booth
Martin G. McGuinn Chair in Business Law & Professor of Law
Villanova University School of Law
Most legal scholars agree that securities fraud class actions do little to compensate investors. Most investors are well diversified and, thus, are just as likely to sell an overpriced stock as to buy one. Moreover, since the defendant company ultimately pays in a successful class action, holders effectively pay buyers. Although this circularity is widely recognized, few have noted that because of the anticipated payout, the prospect of a class action causes stock price to decline by more than it otherwise would, thus generating additional (feedback) loss for both buyers and holders. In this Article, I describe a method by which one can measure the net effect of class actions on fund investors who are both buyers and holders of a fraud-affected stock. Since an index fund almost always holds more shares than it buys during the fraud period, an index fund almost always loses more than it gains. Thus, class actions systematically penalize rational index fund investors for the benefit of irrational and undiversified stock-picking investors. Accordingly, index funds should oppose class actions as contrary to the best interest of investors. To be sure, one possible problem is that in the absence of the deterrent effect of class actions, there might be more securities fraud. The answer is that whenever there is a meritorious class claim, the corporation itself will also have a claim–against the individual wrongdoers–for any increase in cost of capital resulting from reputational harm and any direct expenses relating to enforcement proceedings. In a class action, these elements of loss are imbedded in the price decrease that occurs when the fraud is discovered. But these losses are in fact suffered by the corporation and should be the subject of a derivative action for the benefit of the corporation–and thus all of the stockholders–not a class action for the benefit only of those who bought during the fraud period. Although the corporation claim may be smaller than the class claim in the aggregate, it is likely to be quite substantial from the point of view of individual wrongdoers and, thus, to constitute a significant deterrent to fraud. Happily, the rules of civil procedure provide a clear fix for the problem. First, the law is clear that a claim that can be handled as a derivative claim must be handled as a derivative claim and that a derivative claim must be resolved first before any class claim may be addressed. Second, no class action may proceed unless the court certifies it as a proper class action. And no action may be so certified if there is any other equally good way to litigate the issues (as by means of a derivative action). But someone has to make the argument. It is puzzling that no one has done so, especially because derivative actions eliminate feedback losses and serve to restore stock price. There are several possible explanations. One is that insurance does not cover derivative claims as it does class claims. Another is that attorney fees are likely to be higher in class actions than in derivative actions. These factors may incline plaintiffs’ lawyers to favor class actions even though investors would be better served by derivative actions. On the other hand, until now, no one has quantified the costs and benefits of class actions for real world investors. As shown here, index funds almost always lose more than they gain and, thus, should oppose class actions in favor of derivative actions. Indeed, index funds owe a duty to their investors to do so.
Michael Z. Green
Professor of Law
Texas Wesleyan University School of Law
Recent attorney-client privilege cases offer a modern understanding of reasonable expectations of employee privacy in the digital age. Employees have increasingly made electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts have summarily dispensed with these matters by finding that an employer’s policy establishing clear ownership of any communications made through employer-provided devices eliminates any employee expectation of privacy in the communications and waives any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client privilege protection in emails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations.
As employees must communicate through employer-provided digital devices day and night, these attorney-client privilege cases help expose the fallacy of assuming employees cannot reasonably expect that emails will remain private if employer policies mandate that the communications are not private. These new cases and related ethics opinions about privileged email offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the façade of assuming employees have no expectation of privacy due to employer policies.
Digital age expectations regarding employee use of smart cellular phones, portable laptops, and other employer-provided devices to make communications beyond standard work hours leave little expectation or opportunity for employees to reasonably communicate privately and confidentially by any other means than through these employer-provided devices. As a result, this Article asserts that employer efforts to mine their devices for employee emails after disputes ensue comprises a form of electronic dumpster diving that should not be tolerated by courts, legislatures, or attorney ethics committees.
What a Relief? The Availability of Habeas Relief Under the Savings Clause of Section 2255 of the AEDPA.
Scott R. Grubman
Assistant United States Attorney
In Gilbert v. United States, a majority of the Eleventh Circuit Court of Appeals held that the savings clause contained in Section 2255 of the Antiterrorism and Effective Death Penalty Act does not authorize a federal prisoner to bring in a habeas petition a claim, which would otherwise be barred by the AEDPA’s ban on second or successive motions, that the sentencing guidelines were misapplied in a way that resulted in a longer sentence not exceeding the statutory maximum. The majority focused on finality interests, and worried that allowing a prisoner to avoid the AEDPA’s ban on second or successive motions would lead to abuse and delay. Some, including the Gilbert dissenters, have expressed concerns that denying a prisoner relief where a retroactively applicable subsequent change in the law renders that prisoner’s sentence incorrect or invalid could result in constitutional violations. This Article attempts to get past the rhetoric from both sides of the debate and proposes a middle ground approach that would pacify both the administrative and constitutional concerns that have been raised.
Wayne M. Gazur
Professor of Law
University of Colorado Law School
With little fanfare, the 2008 amendments to the Uniform Probate Code (UPC) adopted the reformation of wills, as well as other kindred donative instruments, on account of mistake. This Essay focuses on the reformation of wills and the impact that this little-heralded provision may carry.
While the introduction of reformation to the UPC is largely an improvement, it raises a number of concerns. This Essay proposes that reformation of wills is not only doctrinally distinct from the interpretation of simply ambiguous wills, but also is a more troubling measure that has the potential to create more, possibly unfounded, will contests. Further, while the closely related doctrine governing the interpretation of ambiguous wills needs to be clarified and made uniform by the UPC, the new reformation measure fails to accomplish that.
The Essay first briefly discusses the plain meaning rule and its role in addressing ambiguities in instruments and their reformation. It then discusses the origins and operation of the new UPC reformation rule, weighs the impact of that change in the overall context of the UPC, and proposes a clarification to address the longstanding, but unevenly applied, doctrine of ambiguity. The Essay further proposes clear limits on the role of juries in reformation proceedings. It concludes by recommending safeguards that might be desirable for some testators to avoid unforeseen complications from reformation.
Redress for a No-Win Situation: Using Liquidated Damages in Comparable Coaches’ Contracts to Assess a School’s Economic Damage from the Loss of a Successful Coach
Richard T. Karcher
Professor of Law
Florida Coastal School of Law
This Essay addresses the difficulty of proving financial harm that results when a head coach departs during the contract term and the school thereby abruptly loses a valuable asset, that being a successful and stabile athletic program. Due to the unique and specialized nature of head coaches’ services and the industry they work in, ordinary measures for assessing damage based on substitute performance and transaction costs are insufficient. The author offers a theory of measuring a school’s damages within the construct of a lost income-producing asset valuation, using a methodology based on liquidated damage amounts in comparable coaches’ contracts.
Associate Dean for Faculty & Professor of Law
University of Nebraska College of Law
Whistleblower advocates and academics greeted the enactment of the Sarbanes-Oxley Act’s whistleblower provisions in 2002 with great acclaim. The Act appeared to provide the strongest encouragement and broadest protections then available for private-sector whistleblowers. It influenced whistleblower law by unleashing a decade of expansive legal protection and formal encouragement for whistleblowers, perhaps indicating societal acceptance of whistleblowers as part of its law enforcement strategy. Despite these successes, however, Sarbanes-Oxley’s greatest lesson derives from its two most prominent failings. First, over the last the decade, the Act simply did not protect whistleblowers who suffered retaliation. Second, despite the massive increase in legal protection available to them, whistleblowers did not play a significant role in uncovering the financial crisis that led to the Great Recession at the end of the decade. These related failures indicate that although whistleblowers had stronger and more prevalent protection than ever before, they had less reason to believe such protection works. This Article examines the developments in whistleblower law during the last decade and concludes that Sarbanes-Oxley’s most important lesson is that the usual approach to whistleblowing may not be sufficient. Encouragingly, the Article also evaluates recent developments in light of Sarbanes-Oxley’s successes and failures to demonstrate that policy makers may have learned from the Sarbanes-Oxley experience. During the last two years, regulators and legislators implemented new strategies that may encourage employees to blow the whistle more effectively.
Brent Evan Newton
Deputy Staff Director, United States Sentencing Commission
Adjunct Professor of Law, Georgetown University Law Center & Georgetown University School of Medicine
Adjunct Professor of Law, American University Washington College of Law
Adjunct Professor of Political Science & Criminology, University of Maryland
Knowledgeable and respected authorities inside and outside the legal academy are correctly describing the American system of legal education as being in a state of “crisis” and in need of dramatic reforms. Yet most members of the legal academy refuse to accept that major structural reforms are necessary. Despite the academy’s intransigence, I feel compelled to nail my 95 theses to the academy’s door in the hope of hastening, however slightly, its glacial movement towards meaningful reform. The theses comprise six major themes, the first five concerning the legal academy and the sixth concerning the legal profession itself: (1) defects in the law school admissions process; (2) structural problems resulting from the excessive number of law schools, the ABA accreditation process, the current manner of law school faculty governance, and the current system of ranking law schools; (3) defects in law schools’ curricula, pedagogical methods, and assessments of students; (4) deficiencies in the professoriate at law schools; (5) problems related to legal scholarship and law reviews; and (6) flaws in the bar exam and licensure process and also in the process of graduates’ transition from law school to the job market. Most of the problems are interrelated and result in a negative synergy that increasingly threatens the health of the legal profession. As a result, the only way to effect meaningful change likely to persist is to implement systemic reform—root to branch.
Every major decision made by a law school should reflect a genuine fiduciary commitment to their students—with the ultimate goal of producing graduates who will be competent, ethical entry-level attorneys, that is, graduates who are “practice ready.” They should hire faculty members; design curricula and pedagogies; and admit and assess students with the primary goal of producing attorneys who can hit the ground running upon graduation. Law professors should make legal scholarship secondary to their teaching duties, and their scholarship should be relevant to the bench, bar, and legal policy-makers. Law schools also need to charge a fair amount of tuition in view of the quality of the legal education that they provide to students and expect students to carry reasonable amount of debt in relation to their job prospects. Finally, state licensing authorities should require law school graduates to demonstrate the broad range of competencies needed to be an effective entry-level practitioner before licenses are issued.
With these aspirations for the legal academy and legal profession in mind, I contend that that many structural changes in the current system of legal education are necessary—beginning with the manner that schools admit law students, continuing with the manner they teach and assess them during law school, and concluding with the manner in which law school graduates are admitted to the bar. Some proposed reforms look to effective practices in American medical schools and business schools as models. For most of the reforms to occur, law schools must engage in paradigm shifts in several areas in addition to modernizing their curricula and pedagogies—they must alter the composition of their faculties, their approach to legal scholarship, and their relationship with members of the bench and bar. The ABA’s Section on Legal Education and Admissions to the Bar must pave the way in order for these structural changes to occur. In particular, the ABA standards governing law school accreditation must be amended substantially—with respect to faculty composition, faculty governance, faculty duties concerning scholarship, and law school curricular requirements. Without such changes, no meaningful systemic reform will ever occur, and the many problems that currently plague legal education will continue. The ball is in the ABA’s court but, ultimately, law schools must effect change themselves (with or without the ABA’s help, to the degree that they are able)—for the good of law students, the legal profession, and the public. We can, and should, turn the current crisis in legal education into an opportunity for meaningful change.
Christopher K. Odinet
Phelps Dunbar, LLP
The Original Meaning of Civility: Democratic Deliberation at the Philadelphia Constitutional Convention
Derek A. Webb
Stanford Law School Constitutional Law Center
Winner of the 2012 American Inns of Court Warren E. Burger Prize
For the past twenty years, legal scholars have poured over the records of the Philadelphia Constitutional Convention for insights into how to best interpret the Constitution’s various provisions. In this Essay, I pour over these same materials for insights into how the delegates to the convention themselves maintained a level of civility through four months of grueling deliberations. At a time when our legislative assemblies, still today populated mostly by lawyers, are too often prone to incivility, ad hominem argumentation, polarization, and resistance to compromise, the ups and downs of the Philadelphia Constitutional Convention may yet prove a fruitful model for constructive dialogue. In particular, I argue that the convention was marked by a surprising degree of civic friendship borne out of frequent interaction, daily dinner parties that cut across party and sectional lines, and a variety of parliamentary procedures designed to encourage open-mindedness and rational deliberation. Upon this foundation of civic friendship, the delegates reasoned together, utilizing a form of public reason when deliberating about more abstract, structural matters and compromising when deliberation broke down over issues that cut deep into economic or political interests. This rich but often overlooked story about our nation’s founding deserves a telling for lawyers and politicians especially interested in the quality and tenor of deliberations in legislative assemblies today.
The South Carolina Law Review proudly welcomes the following new members:
|SARAH BISHOP||SARAH KATHERINE JOHNSON||PHILLIPS McWILLIAMS|
|BONNIE E. BULL||JEFFERSON COLLIER JONES||PHILLIP G. MULLINNIX|
|NICHOLAS CHARLES||JONATHAN KNICELY||WILLIAM RYAN NICHOLS|
|CARTER COLE||WESLEY BENJAMIN LAMBERT||ROBERT OSBORNE|
|EMILY EVANS||JOHN LANGFORD||ALEXANDRA SABER|
|KARA GREVEY||ALEXANDER HADDEN LUCAS||JAMES GASTON STEELE, III|
|JEFFREY K. GURNEY||PIERCE MACLENNAN||STEPHEN DOUGLAS SUTHERLAND|
|LYDIA HILL||CHANDLER MARTIN||JOHN TAMASITIS|
|JORDAN JANOSKI||EDWARD LEARY MCKENZIE||VORDMAN CARLISLE TRAYWICK, III|
Select a Book to preview its contents:
Jamie R. Abrams, From 'Barbarity' to Regularity: A Case Study of 'Unnecesarean' Malpractice Claims
Nearly 31% of all United States births are by cesarean section today, reflecting a 50% increase between 1996 and 2006, and revealing a modern “unnecesarean” medical epidemic for birthing mothers. Recent scholarship has worked extensively to position this epidemic within the reproductive rights framework. This article uniquely positions this epidemic distinctly in its historical medical malpractice context.
This paper is a case study from “barbarity” to regularity using the high profile cases of Mary Hodges (1859) comparatively positioned next to the recent forced cesarean section case of Laura Pemberton (1996). Ms. Hodges and Ms. Pemberton both litigated questions of interventionist childbirth at transformative moments in the history of childbirth. This case study reveals that the phalanx-like institutional presence of the medical community drives standard of care decisions, distinct from malpractice liability. It reveals unique consent considerations for the “laboring mother,” distinct from the fetus/mother considerations. Finally, it reveals the irreconcilable and paradoxical acceptance of medical uncertainty and rejection of maternal uncertainty.
Bradley T. Borden & Robert J. Rhee, The Law School Firm
The Law School Firm draws upon the medical school model to suggest that law schools create affiliated law firms (law school firms). Law school firms would connect legal education to practice in a very real sense for students, faculty, and practitioners. The Article recommends that law school firms should employ experienced fulltime attorneys to attract and help service revenue-generating clients. Law school firms would employ recent law graduates and provide them the opportunity to work on client matters, gain additional substantive knowledge, acquire business development skills, and integrate into the legal profession. After a few years with the law school firm, law graduates should be ready to practice law on their own.
Faculty at the law school and attorneys at the affiliated law firm could collaborate on research. Such collaboration would help legal scholarship remain relevant and would provide practitioners an opportunity to engage in sophisticated academic projects. Students could also assist with such projects, improving their substantive knowledge and writing skills. Faculty and attorneys could also combine their respective expertise to teach students and new lawyers. In particular, attorneys could teach students advanced practice courses, and professors could offer courses on substantive legal topics for the new attorneys.
The classroom provides an excellent setting to teach and learn substantive law. That learning is enhanced if students have exposure to practice settings. The classroom is not, however, suited for teaching practice skills, such as business development, client service, and practice management. The law school firm will provide a venue for developing such skills.
Edward D. Cavanagh, Making Sense of Twombly
The Supreme Court’s rulings in Twombly & Iqbal have generated an avalanche of articles in the past three years. Most of them have been both shrill and critical and have been largely venting, calling for Twombly’s undoing. There are some pro-Twombly pieces, too, which would likely transport us on the road back to the dark days of code pleading. What sets this piece apart is that it recognizes the Twombly is here to stay and that the time for venting is over. Then, it (1) analyzes what the courts are actually doing with Twombly; (2) identifies and discusses common themes emerging from those cases and (3) synthesizes the holdings into some basic principles that the courts might apply in implementing Twombly/Iqbal and looks to what the next steps are. Among other things, I suggest that (1) the courts apply a proportionality standard in passing on pleadings under Twombly; (2) the courts be circumspect in dismissing cases on the pleadings where information is in the exclusive control of the defendants and no discovery has been had; (3) when courts find complaints deficient under Twombly that they, as a general rule, dismiss claims without prejudice; and (4) the courts avoid the pitfalls of the fact/conclusion dichotomy experienced at common law and under the codes. I also point out the perverse effect of Twombly—more pleading means more discovery and probably even fewer trials at a time when courts are worried about too much discovery and the vanishing trial.
Kenneth T. Lopatka, A Critical Perspective on the Interplay Between Our Federal Labor and Arbitration Laws
The National Labor Relations Board has ruled that an arbitration agreement covering statutory claims—an agreement the Supreme Court has held enforceable under the Federal Arbitration Act (FAA)—is unlawful if the statutory claims include unfair labor practice charges. Part I criticizes the NLRB’s dispatch of the Supreme Court’s ruling, finds the indicia of Congressional intent inconclusive and explains why the terms of the FAA do not strictly apply to the Board. The real question is why the Board does not pursue the FAA’s core pro-arbitration policy and adopt the Supreme Court distinction between substantive- rights and forum waivers. Part I then examines the historical and dogmatic theories underlying the Board’s refusal to do so and concludes that none of them prevent the Board from adopting that distinction. By a process of elimination, Part I concludes that the underlying reasons are doctrinal — an adherence to a public vs. private rights dichotomy the Supreme Court more recently has abandoned—and practical– an attempt to remain vital in an era of declining caseload and relevance in contemporary society.
Part II explores an issue that has not yet been decided– whether even if employers make an exception for unfair labor practice charges, their arbitration agreements are unlawful on the theory that an explicit or implicit class action or class grievance ban abridges employees’ NLRA right to engage in “concerted activities” The article concludes that such an agreement is not unlawful, because the right to engage in concerted activities is not synonymous with a right to satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure or to convince an arbitrator to allow a class grievance and may be exercised without class certification. More importantly, the FAA, the original version of which predated the NLRA, is part of the surrounding legal landscape that is beyond the purview of the unfair labor practice prohibitions of the NLRA.
Vivek S. Sankaran, No Harm, No Foul? Why Harmless-Error Analysis Should Not Be Used to Review Wrongful Denials of Counsel to Parents in Child Welfare Cases
The application of a harmless-error standard by appellate courts reviewing erroneous denials of counsel in child protective cases has undermined a critical procedural right that safeguards the interests of parents and children. Case law reveals that trial courts – on numerous occasions – have improperly rejected valid requests for counsel, and parents have been forced to navigate the child welfare system without an advocate. Appellate courts have excused these violations by speculating that the denials caused no significant harm to the parents, which is a conclusion that a court can never reach with any certainty.
The only appropriate remedy for this significant problem is a bright line rule requiring the automatic reversal of the termination of parental rights (“TPR”) decision in situations where a parent is denied the assistance of an attorney at critical stages of the case leading up to the TPR hearing. This rule is consistent with the Supreme Court’s jurisprudence concerning the denial of counsel in criminal cases and would, as a matter of policy, lead to better outcomes for children in foster care. It would also help further the appearance of a just decision-making process that respects the rights of all parties affected by the child welfare system, an important consideration given current perceptions of the system.
Shawn E. Tuma, 'What Does CFAA Mean and Why Should I Care?' - A Primer on the Computer Fraud and Abuse Act For Civil Litigators
Computer fraud is threat to businesses worldwide that is increasing at an exponential rate. Businesses victimized by computer fraud often seek the help of civil litigation attorneys to fight the ensuing legal battles caused by computer fraud. In this article the author draws on his years of litigation experience to explain why, in order to be prepared for this role, civil litigation attorneys need to be familiar with the Computer Fraud and Abuse Act (“CFAA”); the CFAA is the most frequently used law to combat computer fraud. The CFAA provides for civil claims to recover damages and, more importantly, injunctive relief that, when used properly, can effectively win a case from the very beginning. The author then explains why the CFAA, as interpreted and applied, is challenging to master because of its complicated nature as well as the fact that as a body of law it is still evolving jurisprudentially and courts often reach different outcomes on some of its integral provisions. Because of these uncertainties, the CFAA is laden with procedural and substantive pitfalls that can present many problems for unprepared attorneys. The author provides the litigation practitioner with a guide to much of the basic information related to asserting a civil claim under the CFAA which will be helpful to all attorneys handling CFAA civil claims, whether prosecuting or defending. Lastly, the author examines some of the more frequently litigated issues arising under the CFAA including the “access” issue and the very recent opinion by the Ninth Circuit Court of Appeals in United States v. Nosal, a case that could finally usher the CFAA to the United States Supreme Court.
Book 2 - Winter
Marc D. Ginsberg, Good Medicine/Bad Medicine and the Law of Evidence: Is There a Role for Proof of Character, Propensity, Prior Bad Conduct in Medical Negligence Litigation?
The medical negligence lawsuit is an occupational hazard. It is well known that a significant percentage of physicians have endured a medical liability claim. These physicians are highly skilled and may have outstanding reputations. Some may have been the subject of professional discipline, having suffered hospital staff privileges restrictions or license suspensions/revocations. This paper explores the evidentiary implications of physician character, reputation, prior bad conduct and involvement in prior medical negligence litigation.
Donald H.J. Hermann, Character or Code: What Makes a Good and Ethical Lawyer
This article examines the changing concepts of what makes a good or ethical lawyer. These changing models or ideal types are further illustrated or examined by consideration of the depiction of various lawyers presented in American films. It is a premise of the article that films (along with novels and biographies) provide an opportunity to see a whole person functioning as a lawyer, which permits consideration of the lawyer’s character beyond what is revealed in legal records, including opinions dealing with ethical breeches. The article traces the transformation of the ideal type of lawyer from lawyer-statesman to lawyer-advocate, and then to lawyer-technician. At the same time, the article asserts that the development of the ethical lawyer takes place within the lawyer’s character, where virtue is established by training and habit, rather than through compelled adherence to professional codes.
Maryam Ahranjani, Can They Do That to Me?! Does the Eighth Amendment Protect Children's Best Interests?
Children are our nation’s most valuable resource and also arguably our most vulnerable population. Recent decisions by the Supreme Court, including Roper v. Simmons (2005), Graham v. Florida (2010), and J.D.B. v. North Carolina (2011) indicate its willingness to consider the special characteristics of children in determining their rights; but, by and large, the Court’s analysis does not hinge on the best interests of the child. Can They Do That to Me?! Does the Eighth Amendment Protect Children’s Best Interests? explores case law in the public school and juvenile justice system arenas and concludes that a child-centered approach to punishment will yield better results for everyone – society, parents, and children.
Tom Zimpleman, The Ineffective Assistance of Counsel Era
Federal habeas corpus law, which concerns the intersection of federal criminal law and procedure, federal courts, and the division between federal and state sovereignty, has been the subject of one of the most dramatic doctrinal overhauls of the last thirty years, from both legislative and judicial sources. Since the 1970s, the federal courts, using a variety of doctrinal tools, have created substantive and procedural restrictions on the ability of state prisoners to challenge their convictions in federal court, and Congress codified many of those restrictions and added a number of others with the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Paradoxically, however, those efforts to restrict the availability of federal habeas corpus relief have not dramatically affected the number of habeas petitions filed in federal court, even controlling for the growth of the prison population. After examining a number of empirical studies of habeas litigation in federal district courts, this essay suggests that the resilience of habeas corpus as a way of challenging a state court conviction results largely from use of ineffective assistance of counsel claims as a safety valve to otherwise harsh substantive and procedural barriers to habeas petitioners, even after the passage of AEDPA. This essay also suggests that the federal courts have, in recent years, begun to eliminate the safety valve protections of ineffective assistance of counsel doctrine, and considers what impact this development may have on habeas corpus petitions in the future.
Adam Lamparello, Taking the 'Substance' Out of Substantive Due Process and Returning Lawmaking Power to the Federal and State Legislatures
This Article takes aim at the notion of “judicial activism,” and argues that the Courts have, in their constitutional decisionmaking, improperly found “rights” in the Constitution that cannot in any manner be inferred from the Constitution’s text, history, purpose or original understanding.
Nowhere has this been more evident than in the Court’s Fourteenth Amendment jurisprudence, where it has singlehandedly taken the Due Process Clause of the Fourteenth Amendment, which calls only for fair procedures before life, liberty or property can be taken, and translated it into a “substantive” doctrine that allows for the judicial creation and recognition of “fundamental” rights, i.e., the right to terminate a pregnancy. The Article argues that neither the text nor the history of the Constitution (or the Fourteenth Amendment) could possibly support recognition of these ‘substantive’ rights.
To make matters worse, in so doing, the Court has removed from the democratic process — and legislative debate — important matters of social policy. The Article argues that the persistence of judicial activism has and continues to threaten the very structure of democratic decisionmaking that the Constitution envisions.
Christina Parajon, The Unprofessional Sides of Social Media and Social Networking: How Current Standards Fall Short
The Article discusses the professionalism implications of social media use and social networking. It focuses on young attorneys’ conduct and examines the ways in which current rules of ethics and professionalism norms fail to address a range of social media and networking conduct that has the potential to be unprofessional. The Article proposes a four-part framework for analyzing the professionalism problems of social media use and a model rule, together with a norm-shifting strategy, as a solution.
Book 3 - Spring
Arthur Miller, Keynote Address: McIntyre In Context: A Very Personal Perspective
Adam M. Steinman, The Law of the Land: Examining the Three Opinions in J. McIntyre Machinery v. Nicastro
John Vail, Six Questions in Light of J. McIntyre, Ltd. v. Nicastro
Allan R. Stein, The Meaning of “Essentially at Home” in Goodyear Dunlop
Richard D. Freer, Personal Jurisdiction in the Twenty-First Century: The Ironic Influence fo Justice Brennan
Linda Silberman, Goodyear and Nicastro: Observations from a Transnational and Comparative Perspective
Lea Brilmayer and Matthew Smith, The (Theoretical) Future of Personal Jurisdiction: Issues Left Open by Goodyear Dunlop Tires v. Brown and McIntyre Machinery v. Nicastro
Paul D. Carrington, Business Interest and the Long Arm in 2011
Meir Feder, Goodyear and the Coming Demise of Doing-Business Jurisdiction
Collyn Peddie, Mi Casa es Su Casa: Enterprise Theory and General Jurisdiction over Foreign Corporations after Goodyear Dunlop Tires Operations, S.A. v. Brown
Wendy Collins Perdue, What’s “Sovereignty” Got To Do With It? Due Process, Personal Jurisdiction, and the Supreme Court
Howard B. Stravitz, Sayonara to Fair Play and Substantial Justice?
Rodger D. Citron, The Case of the Retired Justice: How would Justice John Paul Stevens Have Voted in Nicastro v. McIntyre?
Book 4 - Summer
Survey of South Carolina Law
John C. Bruton III, The Rise and Fall of Crossman: The South Carolina Supreme Court’s Double Take on Whether a CGL Insurance Policy Covers Progressive Property Damage Resulting from Faulty Workmanship
Wesley D. Greenwell, State Immunity from Patent Infringement Lawsuits: Inverse Condemnation as an Alternative Remedy
Allison Hite, Who’s to Blame?: How Genetic Information Will Lead to More Accurate Decisions in Toxic Tort Litigation
Elizabeth A. Hoskins, South Carolina Women Are Not Pre-Existing Conditions
Christopher R. Jones, eyePhones: A Fourth Amendment Inquiry into Mobile Iris Scanning
Thomas A. Limehouse, Jr., Blinded by a Bright Line: An Analysis of The Fairfield Formula and Its Impact on Existing Laws and Legislative Procedure
Jessica L. O’Neill, Show Me the Money: McClurg v. Deaton and the Introduction of a Defense as to Damages Only for Default Judgments in South Carolina
Neil Cibley Robinson, III, Into the Matrix: The Future of the Unauthorized Practice of Law in Real Estate Closings Following Matrix Financial Services v Frazer
Michelle E. Theret, Sovereign Citizens: A Homegrown Terrorist Threat and Its Negative Impact on South Carolina