This year, the faculty of the School of Law have been researching and writing about topics ranging from the legal limits on citizens' use of deadly force to the zoning of federal waters. Below is a partial list of articles and other works written or published by members of the faculty during the last academic year. 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.
Duncan E. Alford
Associate Dean for the Law Library & Professor of Law
Teaches: Legal Research, Analysis & Writing; International and Foreign Legal Research
Abstract: This paper focuses on the relevance to emerging economies of three major financial reforms following the global financial crisis of 2007-2009: the improved capital requirements intended to reduce the risk of bank failure ('Basel III'), the improved recovery and resolution regimes for global banks, and the development of supervisory colleges of cross-border financial institutions to improve supervisory cooperation and convergence. The paper also addresses the implications of these regulatory reforms for Asian emerging markets.
Derek W. Black
Professor of Law
Teaches: Constitutional Law; Evidence; Civil Rights Seminar; Education Law and Policy
Abstract: Two major structural shifts have occurred in education reform in the past two decades: the decline of civil rights reforms and the rise of charter schools. Courts and policy makers have relegated traditional civil rights reforms that address segregation, poverty, disability, and language barriers to near irrelevance, while charter schools and policies supporting their creation and expansion have rapidly increased and now dominate federal policy. Advocates of traditional civil rights reforms interpret the success of charter schools as a threat to their cause, and, consequently, have fought the expansion of charter schools. This Article argues that the civil rights community has misinterpreted both its own decline and the rise of charter schools. Rather than look for external explanations, civil rights advocates should turn their scrutiny inward. And, rather than attack charter schools, they should learn from them.
Professor of Law and
Director, Nelson Mullins Riley & Scarborough Center on Professionalism
Abstract:Professor Brian Tamanaha's recent book, Failing Law Schools, offers a damning critique of U.S. law schools from law students' economic perspective — especially students at non-elite law schools with diminishing access to corporate law jobs. According to Tamanaha, "the current economic barrier to a legal career is one of the most important social justice issues of our age." Yet U.S. law schools have bigger problems than the contraction of entry-level hiring by large law firms; and law school faculty, deans, and regulators have duties to other stakeholders, in addition to students. This review criticizes Tamanaha's analysis, and his prescriptions for reform going forward, as a dangerous diversion from a more ambitious and disruptive critique.
Abstract:U.S. law schools increasingly are forming organizational alliances with other training providers in the interests of market expansion and/or consolidation. At the top of the market, U.S. law schools are seeking to brand their positions within the global economy by forming alliances with elite foreign law schools, business schools, and corporate law firms and clients. Schools outside of this market are moving to establish alternative niches through alliances with solo and small firm practitioners, CLE providers, and other organizations serving low- and middle-income clients, as well as through the development of accelerated and/or specialty degrees. Schools at all levels are increasingly emphasizing the "practical" (i.e., immediate market) value of the training they offer rather than the rigor or value of "professional" legal training per se.
This paper examines emerging alliances between U.S. law schools and other training providers and speculates about likely future patterns. It argues that law schools face increasing pressure to move away from their traditional strategy of diversification — providing a variety of specialized courses, clinics, concentrations, and degree programs within (or on top of) a formally unified J.D. curriculum — and toward strategies for institutional and market specialization. Formal organizational alliances are an increasingly important component of such strategies. Yet while there are many organizational partners for elite law schools serving global, corporate markets, there are fewer for law schools primarily serving local and consumer markets. Thus, law school alliances raise questions about the boundaries of unified legal education and, ultimately, the legal profession.
Abstract:This essay identifies two fundamental strategic issues confronting law schools and suggests how critical theory and research might contribute to institutional change. The first issue is the increasing segmentation of the profession — not just between corporate and personal legal services, but also between commodity and "bespoke" or "high-margin" work in both sectors. Law schools have three options for responding to segmentation: to ignore it, as most schools have done for decades (and continue to do, despite evidence that segmentation will only increase); to exploit it, as most top-tier law schools attempt to do, for instance by forming preferred-provider relationships with large law firms and other corporate-sector employers; or to combat it, as arguably it is in most law schools' interest to do, for instance by repurposing law schools to provide training that applies across sectors, and promoting a collective commitment to access to justice.
Access to justice initiatives, however, lead directly to the second issue, which is the pressure for deregulation. Why should anyone pay monopoly rates for services that non-lawyers (such as information technologists) can competently and more efficiently provide? And what should be the role of law schools in training people and designing systems for the delivery of "law-related" (that is, unregulated) services? Deregulation presents a particular challenge for law school reformers, because it threatens the professional identity and status of legal academics. Moreover, the regulation of law schools is highly centralized and beyond any one school's control. Yet the pressure to rethink the boundaries of monopoly regulation will only grow stronger in light of access to justice initiatives and deregulation in other markets, such as the U.K. Law schools either can be proactive and start a collective conversation about the future of the profession — or simply continue to react competitively to external shocks.
This essay aims to contribute to a collective conversation by proposing a direction and framework for institutional innovation. It argues, specifically, for shrinking the boundaries of the unified J.D. degree, to focus primarily on legal doctrine, method, and professional ethics; while expanding the development of specialized pre- and post-J.D. training. In other words, rather than further segmenting law schools according to the characteristics of employers, the essay argues for rethinking the sequencing of U.S. legal education, to create more flexible entry and exit points at various stages of specialization.
Abstract:How should we interpret differences between junior and senior lawyers' perceptions of ethicality in the workplace? One theory holds that junior lawyers are more reliable informants; that their perceptions are not yet corrupted by self-interest and the demands of practice and therefore will tend to be closer to universal or ordinary morality. This is the predominant theory in the academic literature on large law firms, which tends to portray large law firms as being in perpetual moral decline. To some extent, this corruption narrative informs all critical legal ethics research.
An alternative theory holds that junior lawyers are inexperienced and/or naïve and therefore may be unreliable informants about professional matters. This theory views professional socialization as the process of acquiring knowledge and ethical judgment in complex situations. Junior lawyers, by definition, have not had time to acquire such knowledge and therefore are in no position to assess law firm management practices or senior lawyers' work. Perhaps not surprisingly, this is the dominant theory among large firm partners and managers.
These two theories of lawyer socialization are not necessarily incompatible. Research on lawyers provides examples of both "ethical fading," whereby lawyers gradually lose sight of ordinary morality, and "ethical learning," whereby lawyers gradually acquire specialized ethical expertise. Moreover, lawyers may experience both ethical fading and ethical learning at different stages of their careers, in different practice contexts, and with respect to different issues in their work.
The challenge, however, is defining the benchmark for theoretical analysis. Should lawyers' ethical standards and conduct be compared to ordinary (lay) morality? To the formal rules of legal ethics? Or to the prevailing professional norms within a specialized area of practice (which may or may not be consistent with the formal rules)? The definition of the normative benchmark itself has theoretical implications and is not always explicit in legal ethics research.
This chapter examines the use of benchmarks in legal ethics research and shows how different benchmarks may produce competing — but partial — theoretical claims. It argues, specifically, that the literature is biased toward critical accounts of "ethical fading" that are based on unspecified and/or internally inconsistent benchmarks. The goal of the chapter is to promote a more consistent specification of benchmarks in order to build a more holistic theory of lawyer socialization. A clearer definition of the normative baseline for analysis would allow more focused comparisons between junior and senior lawyers, as well as between different types of lawyers, and between lawyers and the members of other occupational groups.
Professor of Law
Abstract: Ocean zoning represents a governance mechanism with potential to solve many existing marine environmental problems. President Obama's Executive Order 13,547 is the first serious effort by the federal government to move toward zoning of federal waters. The initiative contained in E.O. 13,547, described as "Coastal and Marine Spatial Planning," includes the two components of a traditional zoning process - plan development and the creation of enforceable, spatial rules. It is not clear why the President opted not to include the word "zoning" in the title of the initiative; more important, it is not clear why the "enforceable rules" piece of the initiative is drafted in such a complex and murky way. I argue that this lack of clarity, in particular the failure of E.O. 13,547 to identify the development of durable, dominant-use rules as a key objective of the planning process, is problematic for two reasons. First, such rules are the most important functional components of effective zoning regimes, which work because they give clear priority to single or compatible uses in geographically-defined spaces. Second, the failure to pre-commit to the development of durable, dominant-use rules greatly reduces the incentive for interest groups to participate in the initial planning process. Without buy-in from the full range of interest groups, from the oil and gas industry to marine conservationists to alternative energy organizations, the President's initiative is unlikely to produce meaningful, long-lasting improvements to ocean governance.
F. Patrick Hubbard
Ronald L. Motley Distinguished Professor of Tort Law
Teaches: Torts; Land Use Planning; Law, Society & Justice; Tort Theory Seminar
Abstract: This Article argues that most states have unconstitutionally overbroad authorizations for citizens to use deadly force in the context of crime prevention, citizen's arrest, and defense of one's "castle." Similarly, some authorizations of deadly force for self-defense in public areas may be unconstitutional. The starting points of this argument are the fundamental value of life, the state's monopoly of deadly force, and the fundamental constitutional right to life. Because of the state's monopoly of deadly force, any use of such force is either legitimate or proscribed. The lack of a third category of "private" use of deadly force affects constitutional review of authorizations of the use of deadly force in two ways.
First, a citizen's use of authorized deadly force is subject to the same constitutional limitations that apply to a governmental official's use of such force. Consequently, because some authorizations permit citizens to use deadly force in a way that would be unconstitutional if a government official had used the same force, these citizen authorizations are also unconstitutional.
Second, equal protection and substantive due process review of an authorization require a stringent standard of review in terms of the rights of citizens killed as a result of the authorization of deadly force. More specifically, because of the fundamental constitutional right to life, the authorization must be narrowly tailored to address a compelling state interest. Many authorizations of deadly force do not satisfy this standard because they are so overbroad that they include authorizations of deadly force in situations where the state interest involved is not sufficiently compelling to justify a denial of the fundamental right to life.
Because of the unfairness of applying a constitutional limit in the context where a citizen has acted in accordance with an overbroad authorization of deadly force, a prospective declaration of unconstitutionality may be appropriate.
Abstract: This paper addresses Citizens United v. FEC, 130 S. Ct. 876 (2010). Part I discusses political speech within a context defined by three factors: (1) electorates that are so large that speech must address them largely by using "mass media;" (2) a postfactual culture where analysis and debate often rely on deliberate distortions, misstatements, or fabrications of factual matters; and (3) a market society where political speech depends largely upon having the financial ability to use mass media. After discussing the legal fiction of corporate personhood, Part II argues first, that Citizens United has a reasoned basis and second, that critics allow their concern about the role of wealth in politics to divert them from addressing both the basis of the decision and other avenues of reform. Part III discusses measures to limit the role of money in politics and the problem that, in a market society, speech will always be, to some extent, for sale.
Susan S. Kuo
Associate Professor of Law
Teaches: Criminal Law; Criminal Procedure; Conflict of Laws; Law & Social Justice Seminar
Abstract: When government takes private property for a public purpose, the Fifth Amendment requires just compensation. However, courts have long recognized an exception to takings law for the destruction of private property when necessary to prevent a public disaster. In those circumstances, unless the state accepts an obligation to pay damages, individuals must bear their own losses.
This Article contends that the public necessity defense should be rejected. First, the tight timeframe and limited options typical in a disaster response threaten to obscure the crucial role of government in planning for disasters and mitigating vulnerability. Second, and more fundamental, the deliberate infliction of harm remains wrongful, even if all available alternatives are worse and the situation could not have been averted or ameliorated through proper advance planning. A just-compensation rule - whether instituted via statute or judicial reinterpretation of the Fifth Amendment's Taking Clause - would preserve the government's emergency powers while reaffirming the rule of law and advancing the interests of social justice.
Assistant Professor of Law
Teaches: Business Corporations; Business Crimes; Liberty Seminar; Mergers & Acquisitions
Abstract: Despite the economic importance of family businesses, legal scholarship has often overlooked their distinctive character. Instead, scholars focus on the chosen form of business organization — partnership, corporation, LLC — and assume that the participants are economically rational actors who seek to maximize their individual preferences. This Article contends that family businesses are an extension of family relationships and that non-market values affect their goals and governance choices.
Just as family law scholars have shown that contract principles can be applied to regulate intimate relationships, corporate law scholars should recognize that the intimacy of family life often substitutes for arms-length bargaining in family businesses. Notably, while relationships of trust and loyalty can lower transaction costs, the strength of family ties offers an intrinsic benefit for family business participants apart from any economic return that might be achieved.
When disputes arise in family businesses, courts have an indispensable role to play, because the parties cannot anticipate and resolve all potential conflicts in advance. Like other business ventures, family businesses are long-term, relational contracts. However, rather than seeking to supply the terms that would have been chosen by individuals who are disconnected from one another and economically rational in their pursuit of their own advantage, the law should recognize the importance of shared family values relevant to the parties' expectations. Put differently, to respect private ordering the law must respond to the ways that individuals actually choose to order their affairs.
Associate Professor of Law
Teaches: Criminal Law; Criminal Adjudication; Evidence
Abstract: In two 2012 opinions, Commonwealth v. Bedford and State v. Williams, courts rejected appeals by convicted homicide defendants sentenced to life imprisonment. Each defendant claimed that his victim was the first aggressor, prompting the prosecution to present character evidence concerning the victim's character for peacefulness even though neither defendant claimed that his victim was generally a violent person. The prosecution in both cases presented this character evidence under a state counterpart to Federal Rule of Evidence 404(a)(2)(C), a frequently applied exception to the general rule that propensity character evidence is inadmissible.
Rule 404(a)(2)(C) and its state counterparts are thus the one exception to the general "Pandora's box" theory which deems propensity character evidence inadmissible in any criminal trial unless the defendant decides to inject character evidence into trial by presenting evidence of his good character and/or evidence of the victim's bad character. The Rule is also the rare exception to our evidentiary and constitutional framework that almost always treats criminal defendants at least as well as, and usually better than, their civil counterparts. Worst of all, this anomalous Rule treats criminal defendants worse than civil defendants in the very type of case in which the accused has the most at stake and faces the largest deployment of investigatory and prosecutorial resources. Accordingly, this article argues for the repeal of Federal Rule of Evidence 404(a)(2)(C) and state counterparts.
Abstract: In Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with the Ex Post Facto Clause, including "[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." But, in its opinion in Carmell v. Texas, the Court determined that ordinary rules of evidence do not violate the Clause because they (1) are "evenhanded, in the sense that they may benefit either the State or the defendant in a given case;" and (2) "do not at all subvert the presumption of innocence … ."
Federal Rules of Evidence 413 and 414 as well as state counterparts, however, are neither evenhanded nor consistent with the presumption of innocence. Instead, these rules can only be used to benefit the prosecution, and they subvert the traditional presumption of innocence maintained by the propensity character evidence proscription. Accordingly, courts across the country have erred in finding that the retroactive application of these rules does not violate the Ex Post Facto Clause.
Abstract: On September 6, 2012, a jury convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Media accounts of the verdict indicated that jurors were primarily swayed by the admission of hearsay statements by Savio as well as Peterson's third wife, Stacy Peterson. Numerous stories reported that the prosecution admitted these hearsay statements pursuant to "Drew's Law," a statutory codification of the common law doctrine of forfeiture by wrongdoing that the Illinois legislature enacted solely for purposes of the Peterson prosecution. In fact, these statements were admitted under the common law doctrine of forfeiture by wrongdoing, and the viability of Peterson's appeal hinges upon the constitutionality of the transferred intent doctrine of forfeiture by wrongdoing.
The doctrine of forfeiture by wrongdoing typically applies in the witness tampering context: When a defendant on trial for some crime (e.g., robbery) intends to and does procure the unavailability of a prospective witness against him at that trial, the prosecution can admit the witness's hearsay statements at that same trial (the robbery trial). But does the doctrine also apply at the defendant's trial for murdering the prospective witness, with the defendant's intent to render the witness unavailable at the first trial transferring to the second trial? This essay contends that the Supreme Court's opinion in Giles v. California endorsed a transferred intent doctrine of forfeiture by wrongdoing by making the operation of the doctrine dependent upon causation and intent rather than causation and benefit.
Abstract: In Florida v. Harris, the State has asked the Supreme Court to find that a positive alert by a certified narcotics-detection dog is per se sufficient, in and of itself, to establish probable cause for the search of a vehicle. This essay, to be published in conjunction with Leslie Shoebotham's amici brief in Harris, argues that this "credentials alone" conception of probable cause violates the Compulsory Process Clause.
Abstract: The "anchoring effect" is a cognitive bias by which people evaluate numbers by focusing on a reference point - an anchor - and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor's opening offer operates as an anchor, nearly all criminal cases in this country produce unjust results based upon an unconscious cognitive bias.
This article thus proposes a solution that most jurisdictions have rejected: Judges should be able to participate in the plea discussions. Federal Rule of Criminal Procedure 11(c)(1) and most state counterparts strictly preclude judges from participating in plea discussions, but a few jurisdictions permit judicial participation. In these jurisdictions, plea discussions commence with the prosecutor and defense counsel laying out their cases and asking for particular dispositions and the judge responding with the expected post-plea sentence. This article contends that this type of judicial participation would reduce the anchoring effect because the expected post-plea sentence would replace the prosecutor's opening offer as the anchor and produce fairer final plea bargains. This article also argues that such judicial participation would ameliorate many of the problems associated with the current plea bargaining system.
Joel H. Samuels
Associate Professor of Law
Teaches: Civil Procedure; International Litigation; Transnational Law
Abstract: This article explores the seminal United States Supreme Court decision of United States v. Smith (1820). Smith, an early piracy case, has influenced developments in both domestic and international law on piracy, universal jurisdiction, and a range of broader themes. This article is the first to explore the context within which the case arose, as well as the circumstances of the case itself. In addition to the details of the case, the story of the men prosecuted for their cruise aboard the vessel known as the Irresistible in the late spring and early summer of 1819 also offers a window into important issues of the day, including growing federal assertions of power over the states, the roles of Congress and the courts in defining and punishing piracy under the Constitution, theories of punishment, and the power of the press.
Joseph A. Seiner
Associate Professor of Law
Teaches: Comparative Employment Discrimination Seminar; Individual Employment Law; Employment Discrimination Law; Principles of Labor Law
Abstract: In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation's largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). This Article embraces the view offered by scholars to date, and does not engage the debate over the extent to which Wal-Mart will eviscerate the employment rights of workers.
Instead, this Article attempts - for the first time - to find a solution to the problem created by Wal-Mart. The academic literature has yet to explore possible ways to minimize the impact of the Court's decision, and this Article seeks to fill that void in the scholarship. Though the case undoubtedly weakens the ability of Title VII plaintiffs to pursue class-action claims, the decision still leaves substantial room for creative approaches to systemic discrimination. This paper offers three such solutions to the problem created by Wal-Mart: the governmental approach, the procedural response, and revised relief. This Article critiques each approach, and explains how they are useful in pursuing workplace cases that involve company-wide discrimination. This paper also situates these proposals in the context of the existing literature.
The thesis of this Article is simple. Taking at face value the argument of scholars that Wal-Mart has created a gaping hole for victims of systemic discrimination, this paper asks what tools are still available for plaintiffs to help fill that hole. Wal-Mart signals a sea change for mass-employment litigation. The challenge now will be to find imaginative ways of pursuing systemic discrimination claims. For the first time in the academic literature, this Article takes on that challenge.
Abstract: In Twombly v. Bell Atlantic Corp., 550 U.S. 644 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court introduced a new plausibility pleading standard, abrogating well-established precedent. Under this standard, a plaintiff must now allege enough facts in the complaint to state a plausible claim to relief. Twombly and Iqbal transformed civil procedure law, and both the courts and litigants have struggled with its meaning. One area that has been dramatically affected by these recent decisions is the field of workplace discrimination.
There are two types of employment discrimination claims — intentional (or disparate treatment) and unintentional (or disparate impact) discrimination. The academic scholarship is replete with discussions of the problems that the plausibility standard has created for victims alleging disparate treatment claims. Discriminatory intent is difficult to establish, and this is particularly true where a plaintiff has not had access to discovery.
One area that has remained unexplored in the academic literature, however, is the effect of Twombly and Iqbal on disparate impact cases. This Article seeks to fill that void in the scholarship. This paper closely examines the two most likely approaches for applying the plausibility standard to unintentional discrimination claims. This paper offers an analytical framework for considering these claims under either standard, and explains why a more streamlined approach to the Supreme Court's recent decisions is preferable.
Navigating Twombly, Iqbal and other Supreme Court decisions, this paper explains how the plausibility standard should be applied to unintentional discrimination cases. This Article provides a blueprint for the courts and litigants to follow when considering a disparate impact claim, and addresses the implications of adopting the proposed approach. Twombly and Iqbal represent a sea change for workplace plaintiffs, and this Article attempts — for the first time — to make sense of these decisions in one of the most complex areas of employment discrimination law.
Associate Professor of Law
Teaches: Property; Copyright Law; Intellectual Property; Cyberlaw
Abstract: The Constitution premises Congress's copyright power on promoting "the Progress of Science." The word Science therefore seems to define the scope of copyrightable subject matter. Modern courts and commentators have subscribed to an originalist view of Science, teaching that Science meant general knowledge at the time of the Framing. Under this interpretation, all subject matter may be copyrighted because expression about any subject increases society's store of general knowledge. Science, however, did not originally mean general knowledge. In this Article, I examine evidence surrounding the Copyright Clause and conclude that at the Framing of the Constitution, Science meant a system of knowledge that comprises distinct branches of study. This historically accurate meaning casts doubt on whether a distinct group of expression may be copyrighted - namely, expression that the First Amendment does not protect. I argue that the original meaning of Science cannot support a constitutional copyright of unprotected speech.
Marcia A. Yablon-Zug
Associate Professor of Law
Teaches: Advanced Family Law; Family Law; Federal Indian Law
Abstract: On April 16th, the US Supreme court will hear arguments in the case Adoptive Couple v. Baby Girl. This case involves an Indian child whose attempted adoption by a non-Indian couple in South Carolina violated the provisions of the Indian Child Welfare Act (ICWA). Because of this violation, the family court ordered her return to her biological father. The case has received extensive media attention and has resulted in the vilification of ICWA. Nevertheless, the Court's decision to hear the case was surprising. The issues in the case are straightforward and the lower courts' decisions were clearly correct. Consequently, the Supreme Court's interest likely indicates that this case will be used to address broader issues than those delineated in the questions presented. This essay explores the legal issues raised by the Baby Girl case and examine the ways in which the Court is likely to use this decision to redefine current understanding of ICWA and maybe all of Indian law.