Faculty Scholarship

Recent Scholarship January to June 2015

Below is a partial list of articles and other works written or published by members of the faculty. See previous articles here.

To download an individual article, you can click on the PDF link next to the article. To be able to download all past, present, and future articles written by members of the faculty, you can create a free account on the Social Science Research Network (SSRN) by clicking on this link: Create a Free Account on SSRN. Then, you can click on the SSRN hyperlink next to any article to download it.

The School of Law is also embarking on a new social media presence highlighting faculty scholarship. If you would like links to upcoming articles along with brief descriptions to come to you, follow us on Twitter: https://twitter.com/UofSCLawScholar.

Derek W. Black Derek W. Black
Professor of Law
Teaches: Constitutional Law; Evidence; Civil Rights Seminar; Education Law and Policy

The Constitutional Limit of Zero Tolerance in Schools, Minnesota Law Review Vol 99 Issue 3 (2015). [SSRN]

Abstract: With the introduction of modern zero tolerance policies, schools now punish much more behavior than they ever have before. But not all the behavior is bad. Schools have expelled the student who brings aspirin or fingernail clippers to campus, who does not know that a keychain knife in his backpack, or who reports having taken away a knife from another student in order to keep everyone safe. Despite challenges to these examples, courts have upheld the suspension and expulsion of this good-faith, innocuous behavior. With little explanation, courts have opined that the Constitution places no meaningful limit on the application of zero tolerance policies. Indeed, courts have been so dismissive of constitutional challenges that most scholars all but concede the constitutionality of zero tolerance, arguing instead that schools should voluntarily adopt policy changes. This is incorrect. Although the constitution confers significant discretion on schools to regulate student behavior, that discretion does not include the authority to entirely strip students of their constitutional rights and punish them for any reason a school deems fit. This Article argues that fundamental principles of substantive due process limit zero tolerance. In particular, substantive due process prohibits state actors from (1) treating substantially dissimilarly situated students as though they are the same; (2) disregarding a student's good-faith mistakes or innocence; and (3) presupposing the answers to due process inquiries so as to render hearings meaningless. Zero tolerance policies breach each of these principles and represent a broad overreach of state power, akin to the sort of state overreaching that the Supreme Court has struck down in related areas of juvenile justice. To comply with due process, the state must consider students' intent and culpability, along with the potential harm posed by the behavior at issue. Contrary to conventional wisdom, courts can strike down zero tolerance policies that fail to take these steps without re-crafting constitutional doctrine.

Federalizing Education by Waiver?, 68 Vanderbilt Law Review (forthcoming 2015). [SSRN]

Abstract: In the fall of 2012, the United States Secretary of Education told states he would use his statutory power to waive violations of the No Child Left Behind Act (NCLB), but only on the condition that they adopt his new education policies — policies that had already failed in Congress. Most states had no real choice but to agree because eighty percent of their schools were faced with statutory sanctions and fund termination. As a result, the Secretary was effectively able to federalize two core aspects of public education over the next year. For the first time, school curriculum and the terms of teacher evaluation and retention came under the influence and control of the federal government.

This Article demonstrates that this particular exercise of conditional waiver power was both unconstitutional and beyond the scope of the Secretary's statutory authority. First, NCLB contained no notice that states might face waiver conditions when they first agreed to participate in NCLB, much less notice of the substance of those conditions. Spending clause doctrine requires both. Second, states' inability to say no to these conditions raises serious questions of unconstitutional coercion. Third, the Secretary lacked explicit statutory authority to impose these conditions. At best, NCLB implies authority to condition waivers, but implied conditions would be limited to the scope of NCLB itself. The waiver conditions the Secretary imposed go well beyond the scope of NCLB. Fourth, to treat these particular waiver conditions as falling within the scope of the Secretary's authority would be to extend the Secretary the equivalent of law-making power, which separation of powers doctrines prohibit. The power to unilaterally impose open-ended policy through waiver conditions would be remarkable not just for its transformation of key aspects of education, but for the entire federal administrative state. It would open the door to the spread of a more expansive administrative power than ever seen before.

The Constitutional Challenge to Teacher Tenure, 104 California Law Review (forthcoming 2015–16). [SSRN]

Abstract: In 2012, education reformers theorized a novel constitutional strategy to eliminate tenure. They argued that tenure leads to the retention of ineffective teachers, and that ineffective teaching deprives students of the constitutional right to education embedded in state constitutions. This theory immediately caught hold, with a California trial court striking down tenure in 2014 and litigation commencing in other states weeks thereafter. The outcome of this litigation movement will determine both the future of the teaching profession and the scope of the constitutional right to education. To date, however, no high court or scholar has thoroughly analyzed the theory. This article offers that first analysis, concluding that the constitutional challenge to tenure raises a theoretically valid claim, but lacks a sufficient empirical basis. At the theoretical level, the tenure challenge easily falls within broadly worded precedent that establishes students' constitutional right to an equal and adequate education. If ineffective teaching deprives students of equal or adequate education, state constitutions should protect against it. But in the context of school funding cases — where the relevant precedent was first developed — courts have demanded that litigants precisely demonstrate multiple aspects of causation and harm. Evidence on those points is lacking in regard to tenure.

This split between theory and fact requires courts to proceed cautiously. Rejecting current tenure challenges on their face would unfairly prejudice future legal challenges to teacher quality, particularly those predicated on potential empirical advances in social science. A facial rejection would also require courts to narrow the existing scope of the constitutional right to education. This narrowing would negatively affect education rights in other important and developing contexts. The solution is to insist on more detailed evidence to support plaintiffs' causal theories and presumed remedies. By doing so, courts can validate students' constitutional right to education without venturing into unsettled policy debates.

Jaclyn A. Cherry Jaclyn A. Cherry
Associate Dean for Academic Affairs and Associate Professor of Law
Teaches: Nonprofit Organizations, Nonprofit Organizations Clinic, Small Business Organization Capstone Course

South Carolina Nonprofit Corporate Practice Manual, South Carolina Bar Association, 2d. ed. (2015). [Publisher]

Abstract: The Second Edition of the South Carolina Nonprofit Corporate Practice Manual has been fully updated since the release of the First Edition in 2007. It is a practical and authoritative resource — the only one of its kind in South Carolina. It contains 25 chapters covering virtually every aspect of nonprofit corporate practice in South Carolina. The Second Edition includes the new Corporate Form in South Carolina, Benefit Corporations, as well as the new constitutional amendment and statutes regarding charitable raffles and gaming. It also includes new IRS filing requirements for 501(c)(3) corporations.

Terrye Conroy Terrye Conroy
Assistant Director of Legal Research Instruction and Reference Librarian
Teaches: Legal Research, Analysis & Writing I, Legal Research, Analysis & Writing II

"Introduction to the American Legal System (Chap. 1)" and "Legal Research (Chap. 2)" in The Law of Special Education, 4th ed., with Mitchell L. Yell (2015). [Publisher]

Abstract: The leading special education law book in the field, featuring the history, developments, and current information on how educators can ensure legally correct and educationally appropriate special education programs in classrooms, schools, and districts.

The Law and Special Education provides sound, practical help for keeping on top of the issues involved in the highly litigated area of special education. With this indispensable resource as a guide, teachers and educational administrators see how to ensure a free, appropriate public education for students with disabilities. In it they learn the legal history of special education, get information about legal developments in special education that have occurred in the courts and in the federal government, gain access to current legal information to keep abreast of developments in this rapidly changing field, and ensure that they are armed with the information they need to develop legally correct and educationally appropriate special education programs.

Written in a highly accessible, practitioner-oriented style and bolstered with an associated website and blog, The Law and Special Education guides administrators and educators in developing legally sound and educationally appropriate special education programming. Included are "Lessons from Legislation and Litigation on X" sections that extrapolate important principles for administrators and educators from the law; flowcharts to guide administrators and educators in developing legally sound and educationally appropriate special education programming; text hyperlinks that take readers to important cases and associated websites; a new section on legal requirements regarding bullying and harassment of students with disabilities; over 100 new cases, administrative decisions, and letters of finding since the last edition; chapter objectives; and flowcharts to guide administrators through special education decision making.

Thomas P. Crocker Thomas P. Crocker
Distinguished Professor of Law
Teaches: Constitutional Law, Criminal Procedure, Free Speech and Democracy, The Constitution & National Security

Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism, Yale University Press (forthcoming 2016).

Tessa Davis Tessa Davis
Assistant Professor of Law
Teaches: Income Tax and Corporate Tax

Citizenship and Taxation, Critical Tax Conference, Northwestern University School of Law, Chicago, Illinois (May 2015)

A Post-Gender Tax Code?, Enhancing Economic Security for Women Workers Panel, 8th Annual Feminist Legal Theory Conference: Applied Feminism and Work, Baltimore, Maryland (March 2015)

Mapping The Families of The Internal Revenue Code, 22.2 Virginia Journal of Social Policy & the Law (March 2015). [PDF]

Abstract: The Tax Code contains not one, but two conceptions of family. Existing scholarship does not address this puzzle but instead takes one of two views on the family — either the family is a tool for avoiding taxes or it is a source of discrimination. Current scholars, motivated by the discrimination concern, reject the relevance of kinship to tax and argue for an increased focus on the individual. This Article takes a different approach. Utilizing the "status" and "contract" distinctions familiar to family law scholars, it explains the puzzle of the multiple families in the Code, identifying the two families of the Code and their respective functions. Specifically, this Article shows that when we convey benefits through the Code, we understand family as broad and contract based. On the other hand, when our goal is to root out or head off tax gaming and avoidance, we constrict our notion to that of the nuclear, status-based family. Current reform proposals undervalue the importance of family to the prevention of avoidance and evasion, make targeting beneficial provisions more difficult, and inhibit the challenging work of reforming the Code to be both administratively feasible and nondiscriminatory. Contrary to existing scholarship, this Article argues we should neither cut kinship from the Code nor rely exclusively upon the contract family. Instead, this Article creates a framework for modernizing the tax treatment of the family that combines the strengths of kinship theory and the status and contract families to maintain fairness and administrability and utilizes that framework to make preliminary reforms to existing law.

Josh Eagle Josh Eagle
Solomon Blatt Professor of Law
Teaches: Constitutional Issues in Property Law, Federal Environmental Law, Coastal Conservation Law, Property

Coastal Law, 2d. ed. Aspen Casebook Series (2015). [Publisher]

Abstract: For the modern course on theory and practice, Coastal Law features engaging coverage of laws meant to balance public and private interests in coastal resources and their application in coastal communities. Designed with instructor's needs in mind, the organization structures readings and questions for ease of course design and execution. The Teacher's Manual includes model syllabi for both semester and quarter-length courses and extensive discussion questions. A state-of-the art approach to helping students prepare for class uses informative and interesting boxes, "quick questions," maps, photographs, and diagrams that both help connect students with the material and optimize retention. Unique, multi-disciplinary content gives a concise introduction to basic coastal geology, ecology, geography, and economics that students need in order to understand coastal law and policy. On the cutting-edge of issues such as climate change, oil spill litigation, and hurricane insurance, Coastal Law showcases the most recent, important cases on coastal land-use regulation. End-of-chapter summaries and exercises aid in comprehension of material, allow for interim self-testing, and encourage in-class review.

When Does Flexibility Matter in Environmental Law? with Eric Biber, Ecology Law Quarterly (forthcoming 2015).

Abstract: Environmental law scholars, practitioners, and policymakers have wrestled with the implications of climate change for environmental law. There is widespread (though not universal) agreement that climate change requires greater flexibility in environmental legal systems. Flexibility — reduced procedural requirements for administrative agency decisionmaking and less rigid substantive standards — would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resources. Flexibility would, according to proponents, make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and also to facilitate adaptive management. However, there has been little exploration of the conditions under which flexibility improves or undermines the effectiveness of environmental law.

Taking the Oceanfront Lot, 91 Indiana Law Journal (forthcoming 2016). [Download]

Abstract: Oceanfront landowners and states share a property boundary located between the wet and dry parts of the shore. This legal coastline is different from an ordinary land boundary. First, on sandy beaches, the line is constantly in flux, and it cannot be marked except momentarily. Without the help of a surveyor and a court, neither the landowner nor a citizen walking down the beach has the ability to know exactly where the line lies. This uncertainty means that, as a practical matter, ownership of some part of the beach is effectively shared. Second, the common law establishes that the owner of each oceanfront lot holds easement-like interests in adjacent state-owned land; and, the state holds similar interests in the oceanfront lot. For these two reasons, the legal relationship between the oceanfront owner and the state is more interdependent than first might seem. It is much more than the usual neighbor relationship.

Disputes over oceanfront property are often framed as cases of wrongful taking under the Fifth Amendment's Just Compensation Clause. The Supreme Court has historically applied its standard takings test for determining whether or not a state is liable for the impact of its rules on a landowner's rights. This Article is the first to examine the question of whether use of this standard test is optimal in cases between states and the owners of oceanfront land. Given the fact that climate change impacts such as sea-level rise are likely to increase rates of conflict along the legal coastline, the potential benefits of a test that takes into account the special relationship between these parties are significant. Support for an alternative test can be found in two sets of common law property rules, the upland rights and public trust doctrines, as well as in a mechanism that nineteenth century courts used to resolve similar disputes.

The Incentives of a Resource Owner: Evidence from a Private Oyster Fishery with Lawrence Eagling and Elizabeth Ashton, Marine Policy (forthcoming 2015). [Publisher]

Abstract: European flat oyster Ostrea edulis fisheries were once abundant around the UK coastline. The sole remaining productive O. edulis fishery in Scotland is in Loch Ryan. This fishery has been privately owned and managed by a single family since 1701. Economic theory predicts that ownership, whether public or private, is a necessary condition for rational fishery management. In this paper, a series of four leases and a licence are examined, covering an 85-year period over the 20th and 21st century, to examine whether the management of the Loch Ryan fishery conforms to the expected norms of rational management. The leases show that, over this period, the owners appear more willing to expend resources on regulating tenant behaviour, supporting the conclusion that successive generations of owners developed an evolving sense of what "rational management" might require. The results of this study could inform the management of other fisheries — both public and private — by emphasizing the importance of learning from experience.

Climate, Oceans, and the Law of Special and General Adaptation with U. Rashid Sumaila, The Oxford Handbook of International Climate Change Law, Cinnamon Carlarne, Kevin R. Gray & Richard Tarasofsky, Eds. (forthcoming 2015). [Publisher]

Abstract: Climate change presents one of the greatest challenges of our time, and has become one of the defining issues of the twenty-first century. The radical changes which both developed and developing countries will need to make, in economic and in legal terms, to respond to climate change are unprecedented. International law, including treaty regimes, institutions, and customary international law, needs to address the myriad challenges and consequences of climate change, including variations in the weather patterns, sea level rise, and the resulting migration of peoples.

The Oxford Handbook of International Climate Change Law provides an unprecedented and authoritative overview of all aspects of international climate change law as it currently stands, with guidance for how it should develop in the future. Over forty leading scholars and practitioners set out a comprehensive understanding of the legal issues that surround this vitally important but still emerging area of international law. This book addresses the major legal dimensions of the problems caused by climate change: not only in the content and nature of the international legal frameworks, which need implementation at the national level, but also the development of carbon trading systems as a means of reducing the costs of meeting emission reduction targets. After an introduction to the field, the Handbook assesses the relevant institutions, the key applicable principles of international law, the international mitigation regime and its consequences, and climate change litigation, before providing perspectives focused upon specific countries or regions.

The Handbook will be an invaluable resource for scholars, students, and practitioners of international climate change law. It provides readers with diverse perspectives, bringing together interpretations from different disciplines, countries, and cultures.

Domestic Fishery Management with Monica Goldberg and Jack Sterne, Ocean and Coastal Law and Policy 2d Ed., Donald C. Baur, Tim Eichenberg & Michael Sutton, Eds. (forthcoming 2015). [Publisher]

Abstract: Our oceans are essential to the health, safety, and quality of life for all Americans. They are the engines of our planet's weather and climate systems. The challenges we face in managing them effectively also present opportunities for innovation, collaboration, and action. But first we must understand and better integrate the mosaic of legal authorities that enable managers to carry out their responsibilities and make coordinated and informed decisions.

This law and policy guide is a valuable tool to anyone participating in the national effort to realize a future in which our oceans, coasts, and Great Lakes are healthy and productive, and our use of their resources is both profitable and sustainable.

In this second edition, particular emphasis is placed on new information in coastal marine and spatial planning that was not covered before. In addition, the book features extensive discussions in multiple chapters about the Obama Administration's new and far-reaching National Ocean Policy.

Robert L. Felix Robert L. Felix
James P. Mozingo III Professor Emeritus of Legal Research and Distinguished Professor Emeritus of Law
Teaches: Conflict of Laws

American Conflicts Law: Cases and Materials on the Conflict of Laws, 6th ed. with Ralph U. Whitten (2015). [Publisher]

Description: The Sixth Edition of American Conflicts Law: Cases and Materials continues the organizational pattern of the Fifth Edition, along with the problem approach adopted there. However, in Chapter 8, dealing with the Erie doctrine, and Chapter 10, dealing with the topic of personal jurisdiction, there have been extensive updates and additions. Throughout the casebook, the note material has been updated with citations to and discussions of the latest decisions in each topic area covered. A comprehensive Teacher's Manual contains summaries of the main cases, suggestions about alternative course coverage, and the authors' ideas about coverage of the cases, materials, and the problem also is available.

Josh Gupta-Kagan Josh Gupta-Kagan
Assistant Professor of Law
Teaches: Interviewing, Counseling and Negotiation

The New Permanency, University of California Davis Journal of Juvenile Law & Policy (forthcoming 2015). [SSRN]

Abstract: Permanency is a pillar of child welfare law; children generally do better with legally permanent caretakers than in temporary foster care. Historically, when foster children cannot reunify with their parents, states have sought to terminate parental rights and find adoptive families. But recent legal reforms have created a continuum of permanency options, many of which permit ongoing legal relationships with biological parents and do not require termination of biological parents' rights. Research has demonstrated that such options are as lasting as adoption, and can help more children leave foster care to legally permanent caretakers. This continuum promises to empower families — especially children and their new permanent caregivers — to determine the best legal status for their particular situation. It also challenges a reliance on terminations of parental rights as the default tool to achieve permanency. This is the new permanency.

A milestone in the development of this new permanency was the 2008 Fostering Connections to Success and Increasing Adoptions Act ("Fostering Connections"), which provided federal funds for kinship guardianship subsidies. Yet six years after Fostering Connections, the number of guardianships nationally has not increased, just as many children grow up in foster care, and in many states families have no greater ability to choose the best option for them.

This Article is the first to explore the reasons for Fostering Connections' failure to spark major changes. The fault lies in Fostering Connections' failure to challenge the deep cultural and legal subordination of guardianship to adoption or the discretion child welfare agencies have to make core decisions in a case without significant court oversight. This Article also explores a jurisdiction in which the new permanency is close to reality. The District of Columbia has seen the number of guardianships surpass the number of adoptions, with more children reaching permanency, and fewer unnecessary terminations. The District thus represents an extreme version of what the new permanency could do nationally — although it also illustrates the problems with overly wide agency discretion regarding kinship placements.

This Article proposes a set of reforms that would help fully implement the new permanency nationwide. These reforms would rid the law of a hierarchy among permanency options, establish a stronger and more consistent preference for kinship placements, and empower families, not the state, to select the permanency option that best fits their situation, through more rigorous procedures and better provision of quality counsel than current law provides.

Non-Exclusive Adoption and Child Welfare, 66 Alabama Law Review (forthcoming 2015). [SSRN]

Abstract: This Article proposes that child welfare law permit the non-exclusive adoption of foster children who cannot reunify with their parents — that is, adoption by foster parents without severing children's legal relationships with their biological parents. Present law imposes a choice: extended family members or other foster parents may adopt foster children exclusively — and terminate the legal relationship between the child and biological parents — or they may become guardians — which preserves parent-child relationships but denies foster parents the legal title of "parent," even when they are long-term primary caretakers.

Non-exclusive adoption would respect the lived reality of many foster children by legally recognizing all parents in their lives. Biological parents, even those who cannot reunify with their children, retain an important role for many foster children. Foster parents serve as functional parents and often see themselves, and are seen by children, as parents. Moreover, creating an additional legal path for foster children to leave foster care to new permanent families may help many children and families find legal options that minimize unnecessary litigation.

Some courts and legislators have recognized multiple parenthood, especially for children conceived through assisted reproductive technology (ART) and raised by same-sex partners. Yet multiple parenthood faces a core challenge — multiplying the number of legally recognized parents can multiply legal conflicts over children. Non-exclusive adoption in child welfare has a compelling answer. Child welfare law's experience with guardianship demonstrates that the law can effectively allocate parental authority to avoid such conflicts by granting the adoptive parent legal and primary physical custody. This experience also shows one field where multiple parenthood is less radical than it appears at first. While this result raises equality concerns in ART cases, it is appropriate in child welfare cases which, by definition, involve biological parents who have been found unfit and unable to reunify with their children.

Kevin S. Haeberle Kevin S. Haeberle
Assistant Professor of Law
Teaches: Capital Markets Regulation, Corporate Finance

Stock-Market Law and the Accuracy of Public Companies' Stock Prices. Columbia Business Law Review (forthcoming 2015). [SSRN]

Abstract: The social benefits of more accurate stock prices — that is, stock-market prices that more accurately reflect the future cash flows that companies are likely to produce — are well established. But it is also thought that market forces alone will lead to only a sub-optimal level of stock-price accuracy — a level that fails to obtain the maximum net social benefits, or wealth, that would result from a higher level. One of the principal aims of federal securities law has therefore been to increase the extent to which the stock prices of the most important companies in our economy (public companies) contain information about firms' prospects so that society generates more wealth. Indeed, enhancing the accuracy of these prices in this way is perhaps the primary justification for the corporate disclosure, fraud, and insider-trading rules that make up the traditional core of federal securities law. Yet, important price-accuracy effects of a distinct area of the field (the law governing the market in which stocks are traded) have been overlooked.

This Article theorizes that a set of central, yet little-noticed, stock-market rules is resulting in society producing a lower level of stock-price accuracy than it otherwise might. The Article therefore provides examples of ways in which the laws governing stock trading can be altered to increase stock-price accuracy. And it urges regulators to consider whether such alternations might be socially desirable in one of two ways: by enhancing the current level of stock-price accuracy in a manner that results in net social benefits, or by providing society with a lower-cost means than those associated with existing disclosure, fraud, and insider-trading laws for obtaining that current level. Accordingly, the Article theorizes that regulators have a fourth main securities-law tool (stock-market law) for increasing the accuracy of public companies' stock prices, and sets forth a cost-benefit framework to help them determine whether it can be used to achieve one of the chief goals of securities law: obtaining a socially optimal level of stock-price accuracy.

Benjamin Means Benjamin Means
Associate Professor of Law
Teaches: Business Corporations, Business Crime, Liberty Seminar, and Mergers & Acquisitions

Family Business Disputes, Business Law Today (Feb. 2015). [Publisher]

Abstract: This article offers an overview of issues relevant for lawyers who represent family businesses. It identifies typical sources of conflict in family businesses that practitioners should recognize and shows how family law can affect business outcomes, and accordingly, emphasizes the need for contractual planning that includes both business and family considerations.

Contractual Freedom and Family Business, Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations, Robert W. Hilllman and Mark Loewenstein eds., Edward Elgar Publishing (forthcoming 2015). [SSRN]

Abstract: This chapter argues for a conception of contractual freedom that places renewed emphasis on the importance of default rules and background equitable principles as tools for facilitating the parties' business relationship. In other words, contractarianism should not be seen as synonymous with contract; a meaningful freedom of contract is broader and more complex than the proverbial blank sheet of paper on which to draft and a deferential court willing to enforce the results, however nonsensical. Declaring contract king does not establish that it is actually capable of governing its realm. Rather, to facilitate the underlying contractual values of personal autonomy and welfare maximization, it may be better to guide the parties' relationship with well-crafted default rules and reasonable equitable constraints.

In a family business, for instance, a contractarian framework is typically insufficient to support the expectations of family participants. As is true of any closely held business, contracts in family businesses establish relationships rather than the terms of specific, bargained-for exchanges, and the parties cannot be expected to anticipate and adequately address all eventualities that may occur over time. For family businesses, relational aspects are particularly significant: the time horizon stretches across generations, objectives often include more than simple profit maximization, and business dealings involve emotional consequences for the participants that also need to be acknowledged. Instead of adhering to a false assumption that the parties to a business venture are capable of negotiating adequate protections for themselves and likely to do so, contract law should offer a resource — a set of principles that credit the parties' negotiated bargain in full context but that also compensate for what they cannot anticipate or adequately address.

Wealth Inequality and Family Businesses, 65 Emory Law Journal (2016). [SSRN]

Abstract: Wealth inequality endangers democratic values and calls for a public response. This Article contends that family businesses merit special scrutiny because they control vast amounts of private wealth and combine two of society's most important economic institutions: family and business. Accordingly, family businesses implicate concerns regarding both inherited wealth and the concentration of economic power made possible by the corporate form.

Despite their economic significance, little has been done to investigate whether family businesses contribute to wealth inequality. This Article offers the first legal, and one of the only academic, treatments of the topic and shows that family businesses play a double role. On the one hand, family businesses reinforce existing disparities in wealth and opportunity. Heirs, after all, stand to benefit from the hard work of previous generations. On the other hand, family businesses can be a powerful antidote to inequality, disrupting entrenched class hierarchies and creating opportunities for individuals, families, and ethnic communities.

This Article concludes that whether family businesses produce net social costs or benefits depends crucially on two principal factors. First, to the extent there is a lack of public investment in social mobility, family businesses can increase the distribution of wealth by providing needed investments in human capital. Second, to the extent the rewards of capitalism are not widely shared, family businesses can offer a source of opportunity, not just for family members, but also for employees and the communities in which family businesses operate. Thus, family businesses should not be viewed in isolation; a comprehensive response to the problem of wealth inequality must involve the state, the family, and the market.

Colin Miller Colin Miller
Associate Dean of Faculty Development & Associate Professor of Law
Teaches: Criminal Law, Criminal Adjudication, Evidence

Freedom of Character: Creating a Constitutional Character Evidence Test, Carolina Academic Press Book (forthcoming 2015). [SSRN]

Abstract: This essay seeks to fill a scholarly and judicial void by proposing a First Amendment test that courts should apply when prosecutors seek to introduce defendants' speech as character evidence. Under this constitutional character evidence test, assuming that the defendant can prove that his words are protected under the First Amendment, the prosecution would have to do more than simply satisfy the rules of evidence; it would also have to prove that application of the rules of evidence to the defendant's words is narrowly tailored to advance a compelling state interest.

Cloning Miranda, Wisconsin Law Review (forthcoming 2015) [SSRN]

Abstract: Courts across the country have concluded that suspects cannot assert their Miranda rights before being subjected to custodial interrogation. This reluctance to credit pre-assertions can be traced to dicta from McNeil v. Wisconsin, in which the Supreme Court noted that "[m]ost rights must be asserted when the government seeks to take the action they protect against." This article challenges this notion by drawing an analogy between criminal suspects and patients. In 1990, Congress passed the Patient Self-Determination Act ("PSDA"), the so-called medical Miranda, which requires health care providers who accept money from Medicaid or Medicare to inform patients of their rights regarding advance directives and the refusal of medical treatment prior to admission.

The goal of the PSDA is to inform patients of their health care rights prior to admission so that they can assert those rights before pressed into an unfamiliar environment in which they face possible isolation and coercion. This article contends that the same principles that led to the passage of the PSDA support the ability of suspects to be able to pre-assert their Miranda rights when custodial interrogation is "imminent." It also sets up a framework for determining whether a suspect properly pre-asserted his Miranda rights.

David G. Owen David G. Owen
Carolina Distinguished Professor of Law Emeritus

Products Liability and Safety — Cases and Materials, Foundation Press, 7th ed. (forthcoming 2016). [Publisher]

Abstract: This is the 2015 Case and Statutory Supplement to Owen, Montgomery and Davis' Products Liability and Safety, Cases and Materials. Updates are provided throughout the casebook chapters, including principal cases in chapters seven and eleven. Reference to important cases discussing design defect litigation and the ongoing tobacco litigation are highlighted.

Products Liability in a Nutshell, West, 9th ed. (2015). [Publisher]

Abstract: This book provides an overview of products liability law, organizing and explaining the essential history, developments, policies, and tensions of this field of law succinctly yet comprehensively. An abridgment of Professor Owen's acclaimed hornbook treatise, this short work examines classic and recent case and other developments in products liability law, including theories of liability; definitions and proof of product defects; standards for expert testimony; the assault on strict liability by the state-of-the-art doctrine; federal preemption and other defenses; and the Restatement of the Law of Torts, Third: Products Liability.

Products Liability Law, West Hornbook, 3d. ed. (2015). [Publisher]

Abstract: This new edition of Owen's Products Liability Law refines and updates this classic study of products liability law in action. It examines in depth the nature and history of products liability in America and abroad; theories of liability, product defectiveness, and causation; proof of defect and cause, with a Daubert emphasis; key defenses, including federal preemption; and a thorough inquiry into many special types of products liability cases, including automotive and pharmaceutical litigation. Throughout, the treatise explores the underlying tensions and debates, explains the impact of the Restatement of the Law of Torts, Third: Products Liability, highlights classic and important recent cases, and reveals how reform statutes alter this ever-shifting field of law.

Elizabeth G. Patterson Elizabeth G. Patterson
Professor of Law
Teaches: Parents, Children & the Law, Child Welfare, Poverty Law & Policy, Legislation

The Spending Clause after NFIB: New Direction or Medicaid Exception?, SMU Law Review (forthcoming 2015).

Aparna Polavarapu Aparna Polavarapu
Assistant Professor of Law
Teaches: Comparative Law, International Human Rights Skills Course, Transnational Law, Rule of Law Seminar

Expanding Standing to Protect Democracy, 41 Yale Journal of International Law (forthcoming 2015). [SSRN]

Abstract: Standing doctrine can play an outsized role in marginalized groups' ability to protect their constitutional rights. The cultural and political dynamics in developing countries routinely undermine the proper functions of the democratic system and make it unlikely that those parties most directly deprived of their rights will be heard by elected legislatures or be able to directly access courts. The vindication of their rights and the rule of law itself depend on the ability of others to litigate on their behalf. Thus, this article argues for the expansion of standing doctrine to protect the democratic ideal in emerging democracies. Using Kenya and Uganda as case studies, this article demonstrates that "third party public interest standing" — the permission of third parties to institute judicial review proceedings on behalf of injured parties — serves two key ends. First, it allows for the discursive empowerment of marginalized groups. Second, in doing so, it enhances democracy.

Third party public interest standing is viewed with suspicion by many western supporters of democracy, but that suspicion is premised on faulty assumptions. The political and social contexts in many developing nations make overly strict limitations on standing dangerous to the rule of law. Where the executive and parliament are unresponsive or unaccountable to the population, and where access to the judiciary is near impossible for certain segments of the population, third party standing may create the only opportunity for political presence. This article both challenges the traditional perceptions of democracy and constitutionalism as inappropriate and incompatible with the needs of emerging democracies, and recognizes that innovations such as third party public interest standing are necessary to further constitutional, democratic, and rule of law goals.

Claire Raj Claire Raj
Visiting Assistant Professor of Law
Teaches: Interviewing, Counseling & Negotiation, Juvenile Justice

The Misidentification of Children with Disabilities: A harm with no foul. Arizona State Law Journal (forthcoming 2015).

Wadie Said Wadie Said
Professor of Law
Teaches: Criminal Law, Criminal Procedure, Immigration Law, and International Human Rights Seminar

Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions, Oxford University Press, 1 edition (May 7, 2015). [Publisher]

Abstract: The U.S. government's power to categorize individuals as terrorist suspects and therefore ineligible for certain long-standing constitutional protections has expanded exponentially since 9/11, all the while remaining resistant to oversight. Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions provides a comprehensive and uniquely up-to-date dissection of the government's advantages over suspects in criminal prosecutions of terrorism, which are driven by a preventive mindset that purports to stop plots before they can come to fruition. It establishes the background for these controversial policies and practices and then demonstrates how they have impeded the normal goals of criminal prosecution, even in light of a competing military tribunal model. Proceeding in a linear manner from the investigatory stage of a prosecution on through to sentencing, the book documents the emergence of a "terrorist exceptionalism" to normal rules of criminal law and procedure and questions whether the government has overstated the threat posed by the individuals it charges with these crimes. Included is a discussion of the large-scale spying and use of informants rooted in the questionable "radicalization" theory; the material support statute--the government's chief legal tool in bringing criminal prosecutions; the new rules regarding generation of evidence and the broad construction of that evidence as relevant at trial; and a look at the special sentencing and confinement regimes for those convicted of terrorist crimes. In this critical examination of terrorism prosecutions in federal court, Professor Said reveals a phenomenon at odds with basic constitutional protections for criminal defendants.

Joseph Seiner Joseph Seiner
Professor of Law
Teaches: Comparative Employment Discrimination Seminar, Employment Discrimination, Principles of Labor Law, Individual Employment Law, ADR in Employment Law Workshop

The Issue Class, 56 Boston College Law Review 121 (2015). [SSRN]

Abstract: In 2011, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation's largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court's decision. This Article does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored: what is the best tool currently available for workers to pursue systemic employment discrimination claims? Surveying the case law and Federal Rules of Civil Procedure, this Article identifies one procedural tool that offers substantial potential to workplace plaintiffs seeking to pursue systemic claims: issue class certification. Rule 23(c)(4) of the Federal Rules of Civil Procedure permits the "issue class," which in effect allows a court to certify common is-sues in a case while allowing the remaining issues to be litigated separately. The issue class is typically used where a case has a common set of facts but the plaintiffs have suffered varying degrees of harm. This is precisely the situation that many workplace claims present. This Article explains how the issue class is particularly useful for systemic discrimination claims. The Article further examines why traditional class treatment often fails in workplace cases, and addresses how the plain-tiffs in Wal-Mart could have benefitted from issue class certification. Finally, this Article discusses some of the implications of using the issue class in employment cases, and situates the Article in the context of the broader academic scholarship.

Commonality and the Constitution, 91 Indiana Law Journal (forthcoming 2016). [SSRN]

Abstract: In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court concluded that the allegations of pay discrimination in a case brought by over a million female employees lacked sufficient commonality to warrant class certification under Federal Rule of Civil Procedure 23(a). Though the case was expressly decided under the federal rules, some well-known employer groups have begun to advance the argument that Wal-Mart was decided on constitutional grounds. These advocates maintain that the Supreme Court's decision creates a commonality standard for all class-action plaintiffs — regardless of whether those litigants bring their claims in federal or state court. This Article explores the possible constitutional implications of the Wal-Mart decision. This paper explains the potential due process concerns of commonality in class-action claims, and critiques the argument that Wal-Mart creates a constitutional floor for all systemic litigation.

This Article further fills a void in the scholarship by establishing a framework for analyzing whether class-action claims satisfy commonality under the Constitution. This paper develops a normatively fair definition of commonality, identifying five core guideposts that should be considered when determining whether a class-action claim complies with due process guarantees. This Article explains the implications of adopting the proposed guideposts, and situates the suggested framework within the context of the existing academic literature. Wal-Mart signals a sea change for how commonality will be analyzed in all class-action cases. This Article helps define what commonality means under the Constitution, and the guideposts identified here will help streamline all future complex litigation.

Bryant Walker Smith Bryant Walker Smith
Assistant Professor of Law
Teaches: Products Liability; Technology Law: Law of the Newly Possible; Torts

Regulation and the Risk of Inaction (June 2015). [PDF]

Abstract: This chapter begins with two fundamental questions: How should risk be allocated in the face of significant uncertainty — and who should decide? Its focus on public actors reflects the significant role that legislatures, administrative agencies, and courts will play in answering these questions, whether through rules, investigations, verdicts, or other forms of public regulation. The eight strategies discussed in this chapter would in effect regulate that regulation. They seek to ensure that those who are injured can be compensated (by expanding public insurance and facilitating private insurance), that any prospective rules develop in tandem with the technologies to which they would apply (by privileging the concrete and delegating the safety case), that reasonable design choices receive sufficient legal support (by limiting the duration of risk and excluding the extreme), and that conventional driving is subject to as much scrutiny as automated driving (by rejecting the status quo and embracing enterprise liability).

Lawyers and Engineers Should Speak the Same Robot Language, Robot Law (forthcoming 2015).

Seth Stoughton Seth Stoughton
Assistant Professor of Law
Teaches: Criminal Law, Criminal Procedure, and Regulation of Vice

Evidentiary Rulings as Police Reform, University of Miami Law Review 429, Vol 69, Issue 2 (April 29, 2015). [SSRN]

Abstract: How can law be a mechanism for police reform? The most familiar answer, for legal scholars who work on the regulation of law enforcement, is as a deterrent: the law sets some limit on police behavior and imposes some sanction for violations. But the deterrent model is not the only method through which the law can affect police behaviors. In this article, Stoughton contends that evidentiary considerations have the potential to change both police training and agency culture.

Stoughton's contention is based on the observation that evidentiary considerations have shaped not just police behavior but also the culture of policing itself. Cultural change is a critical component of meaningful police reform; one who seeks to change some aspect of policing must take into account the role of culture in shaping the objectionable behavior. But police culture is neither independently organic nor develops in a vacuum. The development of a police culture depends, in large part, on external factors including the legal rules and social expectations in which the culture develops. Stoughton focuses on three examples of how the culture and practices of law enforcement have been shaped by different evidentiary considerations: the warnings required by Miranda v. Arizona, the perceived need to maintain an unbroken chain of custody for evidence, and the popular enthusiasm for forensic investigations.

Stoughton then explores the possibility of using evidentiary rulings to further advance reform, focusing on the use of officers' opinion testimony. Police testimony often straddles the line between lay and expert testimony. Much of their testimony requires specialized knowledge, experience, or training. Unfortunately, under the existing evidentiary framework, police officer testimony is frequently admitted in a way that blurs the already muddy line that separates lay and expert testimony, leading to three distinct problems. First, an officer may provide what is undeniably lay testimony, but using language that indicates a particular expertise. Second, an officer may provide expert testimony dressed in the guise of a lay opinion. Finally, and most importantly for the ultimate thesis of this article, an officer's statements, even when he speaks as an expert, may lack the reliability that expert testimony is supposed to demonstrate. By addressing these concerns through the mechanism of evidentiary rulings, Stoughton suggests that police culture and training itself could be improved.

While the impact of evidentiary considerations is neither certain nor the appropriate way to address all aspects of policing, it can be a useful addition to the broader conversation about police reform.

Law Enforcement's "Warrior" Problem, 128 Harvard Law Review Forum 225 (2015). [SSRN]

Abstract: Within law enforcement, few things are more venerated than the concept of the Warrior. Officers are trained to cultivate a "warrior mindset," the virtues of which are extolled in books, articles, interviews, and seminars intended for a law enforcement audience. An article in Police Magazine opens with a sentence that demonstrates with notable nonchalance just how ubiquitous the concept is: "[Officers] probably hear about needing to have a warrior mindset almost daily." Modern policing has so thoroughly assimilated the warrior mythos that, at some law enforcement agencies, it has become a point of professional pride to refer to the "police warrior." This is more than a relatively minor change in terminology. Though adopted with the best of intentions, the warrior concept has created substantial obstacles to improving police/community relations. In short, law enforcement has developed a "warrior" problem.

In this commentary, Stoughton first describes how law enforcement training and tactics reflect the warrior concept, identifying aspects of modern policing that, if not addressed, will continue to prevent or undermine efforts to improve public perceptions of police legitimacy. He joins a growing chorus of voices contending that it is the Guardian, not the Warrior, that offers the appropriate metaphor for modern officers. Drawing on that principle, Stoughton offers two practical changes to police training that have the potential to advance the ultimate police mission — promoting public security — in a way that fosters, rather than thwarts, public trust: requiring non-enforcement contacts and emphasizing tactical restraint.

Marcia A. Yablon-Zug Marcia A. Yablon-Zug
Associate Professor of Law
Teaches: Advanced Family Law, Family Law, Federal Indian Law

Buying a Bride: From Mail Order Brides to Cyber Matches, NYU Press (forthcoming 2016). [website]

Abstract: Mail order brides have been part of American life since the founding of the nation. Nevertheless, how they have been perceived has changed drastically over time. Beginning with the Jamestown "Tobacco Wives" and concluding with modern same-sex mail order grooms, Buying A Bride explores the advantages and disadvantages of mail order marriage and why this form of courtship has endured for more than four centuries.

Most mail order marriages are the result of female scarcity. Scarcity makes women more valuable and female scarce communities are often willing to offer marital immigrants significant and highly attractive immigration incentives. Since the first mail order brides arrived in 1619, mail order marriage has enabled women to increase both their marital prospects and their legal, political and social freedoms. The history of mail order marriage is closely intertwined with the history of women's rights in America, but this history had largely been forgotten. Today, it is a common misperception that women turn to mail order marriage as a desperate last resort. However, the reality is that most mail order brides are enticed rather than coerced. Buying A Bride uncovers this history and makes a compelling argument that mail order marriage empowers women and that it should be protected and possibly even encouraged.

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