The South Carolina Law Review, a student-run publication, is the oldest and principal legal publication in the
Palmetto State. The Law Review is also the flagship legal publication at the University of South Carolina School
Issue 4, Volume 72
by Sydney J. Douglas
South Carolina’s maternal mortality rate is the nation’s eighth highest rate, coming
in at 25.5 per 100,000 live births. Compared to national statistics, racial disparities
are also more drastic in the state. For every fourteen White women who die from childbirth-related
causes, approximately forty-six Black women die from those same causes. Despite legislative
action prompting increased data collection and planning, South Carolina’s rates have
increased, which raises the question: what can be done to save new mothers?
To decrease South Carolina’s maternal mortality rate, this Note argues that policy
changes must increase the efficiency of data collection, expand access to care, and
implement and enforce requirements for the care provided to South Carolina mothers.
Part II describes legislative and regulatory efforts to institute efficient processes
for the collection of reliable data on maternal mortality in the United States. Part
III discusses the specific issues facing South Carolina and examines possible causes
for the state’s high rates. Part IV explores policies that have worked elsewhere and
recommends policies that South Carolina could adopt to shrink racial disparities and
decrease its maternal mortality rate. Finally, Part V concludes by reiterating the
overarching theme in reducing maternal morality: prevent the preventable by being
prepared for the worst-case scenario.
by Paul N. Nybo
Today, the South Carolina Lowcountry is one of the fastest growing coastal areas in
the United States. The Sea Islands are typically developed through “large scale landscape
conversions to single-family resort and retirement communities.” However, rises in
property value and opportunities for high-end resort development have led to drastic
loss of Sea Island land and disintegration among the Gullah Geechee people who have
traditionally occupied that land. The consequences of this loss are severe for the
Gullah Geechee because it “equates to a loss of their community’s culture and way
Despite the cultural importance of Sea Island land, the Gullah Geechee “are now being
denied access to the very land they call home.” Notwithstanding their resilience and
culture, the “historic people of the Sea Islands are in danger, and the environment
is being tested under the enormous stress of fervent real estate development . . .
. Current efforts to limit the corporatization of the Sea Islands to protect ecological
and cultural life . . . . are still incomplete.” Moreover, the only federal statute
specifically aimed toward preserving Gullah Geechee heritage—the Gullah/Geechee Cultural
Heritage Act—has been criticized for its inability to protect the living culture.
The Act alone is insufficient to “retain the traditional integrity of the Sea Islands”
because it does not address existing threats to the survival of Gullah Geechee culture.
This Note argues that, outside of the Act, federal statutory protection for Sea Island
land and culture may arise under the National Environmental Policy Act of 1969 (NEPA),
which is well-suited to consider the Gullah Geechee’s unique relationship with their
This Note proceeds in four Parts. Part II describes the history of the Gullah Geechee
people, the Gullah/Geechee Cultural Heritage Act, the heirs’ property model of ownership
and its problems, and NEPA’s requirements. Part III considers how an environmental
justice analysis can be implemented into the threshold NEPA determination to require
consideration of a proposed project’s impact on the Gullah Geechee people and culture.
Part III also explores alternative forms of protection that may flow from NEPA’s application.
Finally, Part IV concludes by reiterating NEPA’s viability as a tool for ensuring
environmental justice concerns are considered at the outset of any proposed project
on Sea Island land.
by William E. Hilger
As a national role model in its approach to attracting foreign direct investment (FDI),
South Carolina depends on the global economy and relies on a sizable proportion of
foreign corporations for its long-term economic welfare. Since the colonial days,
South Carolina has had a long history of success in the global market, recognizing
opportunities and creating the conditions necessary for future success. Given South
Carolina’s economic reliance on FDI, it is imperative the state maintain its international
status as a premier destination for foreign businesses looking to access the United
Evidence suggests that the global economy is trending toward a Corporate Social Responsibility
(CSR) understanding of corporate societal roles and that corporations are increasingly
considering a broader range of stakeholders in their decision-making. Both large and
small corporations face increasing pressure from consumers, competitors, government
regulators, shareholders, and the global society to act in more “socially responsible”
ways. As these pressures grow, it becomes increasingly clear that it is in corporations’
long-term best interest to broaden the scope of stakeholder considerations in decision-making.
This Note focuses on the manifestation of environmental sustainability in CSR—an issue
especially critical to South Carolina’s leading investors, which include German and
other European businesses.
In South Carolina, the relationships and infrastructure needed to continue successful
inbound FDI in a changing global economy already exist. It is time for the state to
recognize these trends and consider how best to incorporate them in its approach to
attracting FDI. By recognizing the push toward environmentally sustainable business,
South Carolina can capitalize on an opportunity to maintain and even increase its
preeminence in the national inbound FDI market, ensuring a lasting, healthy state
economy. To that end, this Note highlights changing global market conditions and suggests
measures that South Carolina can implement to remain a premier destination for inbound
FDI—positioning itself for generational success and economic development.
Part II discusses South Carolina’s strategic approach to attracting inbound FDI, including
its high-level governmental support, use of various legal incentives, and implementation
of statewide programs to ensure a qualified workforce capable of meeting the needs
of foreign businesses. After looking at the state’s strategic approach and recognizing
its success, Part III highlights the ways in which the global economy is becoming
more environmentally sustainable and acknowledges the pressures placed on South Carolina’s
potential investors because of that change. Finally, Part IV offers suggestions for
how South Carolina can support businesses responding to global pressures and, in the
process, add to its arsenal of strategic FDI recruitment tactics.
by William G. Arnold
On March 6, 2020, the South Carolina Department of Health and Environmental Control
(DHEC) announced it was investigating two potential cases of the novel coronavirus
(COVID-19). Both individuals tested “presumptive positive,” giving South Carolina
its first cases of COVID-19. Less than two weeks later, South Carolina experienced
its first COVID-19 related death. Since then, South Carolina has had nearly 400,000
probable or confirmed COVID-19 cases and over 5,000 COVID-19 related deaths. In March
of 2020, South Carolina Governor Henry McMaster responded to the pandemic’s increasing
threat by signing numerous executive orders that closed public schools and restaurants
and implemented various “stay-at-home” measures. Less than a month later, Governor
McMaster tightened restrictions further, closing “nonessential” businesses and restricting
travel only to work commutes and trips for “essential services.” Since May of 2020,
Governor McMaster has steadily abrogated many of these restrictions and regulations,
but the drastic effects of the stay-at-home orders and COVID-19 pandemic continue
to harm South Carolina’s economy.
The pandemic’s economic losses have yet to be precisely calculated; however, there
are some indications of the types of losses that South Carolina will face. For example,
a release from April 2021 reported that the state revenue for March 2020 was down
$273 million, or 47.1%, compared to March 2019. Another way to conceptualize these
losses is by looking at South Carolina’s gross domestic product (GDP). In 2020, South
Carolina’s current-dollar GDP (essentially GDP not accounting for inflation) fell
from $247 billion in quarter one to $224 billion in quarter two, roughly a 9% decrease.
According to the U.S. Bureau of Economic Analysis, this annualizes to a 32.6% reduction
The financial toll on specific industries is also informative. For example, despite
continued operations, golf courses in the Myrtle Beach area collectively lost nearly
$21 million in the spring of 2020. This figure does not account for the peripheral
losses that golf clubs experienced, like lost sales of merchandise and food. Restaurants
have also been hit particularly hard because they were one of the first businesses
Governor McMaster restricted. Even as restaurants reopen, many operate at limited
capacity and are incurring additional costs for proper sanitization and disposable
equipment. Some restauranteurs have estimated a 25%–50% reduction in normal business
levels while spending tens of thousands of dollars above standard operating costs
to comply with new safety standards. Clearly, South Carolina’s economic losses are
substantial. Many business owners have looked to federal programs, like the Paycheck
Protection Program, to recoup those losses, and others have looked to the federal
government to supply stimulus funds, particularly through the Coronavirus Aid, Relief,
and Economic Security (CARES) Act.
There is, however, another potential avenue to recoup losses: business interruption
(BI) insurance policies. BI insurance policies are intended to help businesses cover
losses, especially from closures outside of their control. If, for example, a business
office burned down, business owners would need a fire policy to cover fire damage
and property losses, but if the business had a BI policy, it could claim lost income
in the interim. Such policies allow businesses to continue operations through catastrophic
events and, potentially, keep employees on payroll in the meantime.
South Carolina’s response to the financial havoc wreaked by COVID-19 should focus
on sustaining the local economy and fairly spreading financial liability across relevant
parties based on ability and previously negotiated liability. Leaving this problem
to the judiciary is simply not a viable option. S.1188 not only fails to accomplish
the goals set out above, but it also fails to pass constitutional muster; the provisions
imposed by the Bill are not reasonable impairments on the obligations of contracts,
and as a result, they run afoul of the Contracts Clause. Even if the Bill were constitutionally
valid, it would bankrupt insurance companies; impose substantial financial liability
on the state; and, at the very least, result in large premium hikes from insurance
companies, thus inhibiting access to insurance across the state. For these reasons,
the South Carolina General Assembly should instead enact a law that broadens the definition
of “physical loss or damage” under a BI policy, declares certain exclusions presumptively
valid, incentivizes the spread of financial liability, and maintains certain competitive
advantages based on planning and investment.
by Roger M. Stevens
Citizen’s arrest laws were a key component of Georgia’s and South Carolina’s efforts
to control their black populations—both enslaved and free—in the 1860s, and their
current status as enforceable law is a continual reminder of slavery’s legacy. The
citizen’s arrest laws of these states are not what they ostensibly appear to be, and
existing statutory language fails to provide their original intent. Exploring historical
context and the intended meaning of statutory language is essential to understanding
why Georgia and South Carolina initially codified citizen’s arrest laws.
This Note explores the origin and use of citizen’s arrest laws in Georgia and South
Carolina. Part II discusses the current citizen’s arrest laws in these states and
includes a review of relevant case law. Because Georgia and South Carolina relied
on slave labor as their primary economic engine in the 1860s, Part III explores the
methods developed by each state to control their slave populations. Part IV examines
the codification of each state’s citizen’s arrest laws with a particular focus on
the South Carolina Black Code. Finally, Part V explores the legacy of slavery and
describes how continued use of citizen’s arrest laws are an ever-present reminder
of their origin.
by Elizabeth T. French
South Carolina legislators are considering implementing a secrecy statute because
they believe legitimate pharmaceutical companies will supply drugs for lethal injections
if shielded from public scrutiny. This belief is inaccurate. Secrecy statutes produce
harmful effects, which include deceiving unwilling pharmaceutical companies into supplying
drugs, withholding drugs that could be used by hospitals for legitimate medical purposes,
and receiving poorly prepared drugs from compounding pharmacies. If the legislature
does not adopt a secrecy statute, South Carolina will likely turn to other methods
of execution, such as electrocution, firing squad, or nitrogen hypoxia, ultimately
leaving South Carolina with two options: (1) using a method less humane than lethal
injection to continue carrying out executions or (2) completely abolishing the death
penalty. Because lethal injections and alternative execution methods are inhumane,
South Carolina should abolish the death penalty.
Part II of this Note discusses pharmaceutical companies’ desires not to supply lethal
injection drugs; the Food and Drug Administration’s (FDA) regulation of sodium thiopental,
the anesthetic traditionally used in lethal injections; states’ search for new drugs
upon sodium thiopental’s unavailability; and states’ implementation of secrecy statutes.
Part III considers South Carolina’s use of lethal injection as the default execution
method and further evaluates legislative proposals for the state to either adopt a
secrecy statute or implement electrocution as its default execution method. By asserting
that lethal injection mixtures containing drugs from illegitimate sources are inhumane,
Part IV argues that South Carolina should not adopt a secrecy statute and should instead
abolish the death penalty. Part V concludes by reiterating the major problems surrounding
secrecy statutes and the reasons why South Carolina should not implement one.
by Michelle Lyon Drumbl
The Bankruptcy Code and the Internal Revenue Code (I.R.C.) are statutory labyrinths
of federal law.Copley v. United Statescalled on the Fourth Circuit to resolve a question that arose when respective provisions
of each collided. At the heart ofCopleywas a married couple seeking a fresh start with an expected $3,208 income tax refund.
The Copleys wished to resolve their outstanding debts in bankruptcy and maximize the
relief afforded to them under the Virginia homestead exemption provision, as permitted
by the Bankruptcy Code. On the other side of the proverbial table was the Internal
Revenue Service (IRS) armed with I.R.C. § 6402(a), which gives the agency discretion
to offset a taxpayer’s refund against outstanding federal tax debt.
Whose interest should prevail, and consequently, who is entitled to the refund?Copleyanswered this question, resolving muddled statutory interpretations that have produced
mixed results in bankruptcy courts both inside and outside of the Fourth Circuit.
In particular,Copleyestablished precedent favoring the IRS’s offset authority over the debtor’s right
to exemption. This Article unpacks the issues at stake for bankruptcy debtors by explaining
the IRS’s refund offset authority and outlining the bankruptcy case law split. Additionally,
it assesses the lower court decisions inCopleybefore describing the broader significance of the Fourth Circuit’s decision.
by H. Jefferson Powell
We live in an era of superheroes warding off cosmic catastrophe, at least if movie
box office hits are any measure. The official Marvel web page for theAvengers, for example, describes that large and somewhat amorphous group as “Earth’s Mightiest
Heroes” who “stand as the planet’s first line of defense against the most powerful
threats in the universe.” For those who prefer logical consistency and coherent story
lines, theAvengersmovies may not be the best viewing choice, but logic and coherence are luxuries one
cannot afford in the middle of a battle against universe-sized Evil. To insist on
a calm and dispassionate examination of what makes sense misses the point.
Judges are not superheroes, although the attention paid a few Supreme Court Justices
suggests some confusion on that score. Judging is, or ought to be, characterized by
logic and intellectual coherence. To do the job properly, judges must be capable of
thinking clearly and calmly about the questions they address—even, or rather especially,
when those questions involve matters about which people (including judges) feel passionately.
In no area of law is this judicial obligation to reason dispassionately more important
than in constitutional law, where the political, moral, and emotional stakes are often
very high indeed. The Avengers, whatever their merits as the planet’s cosmic defenders,
make very poor role models for constitutional judges.
by Samuel C. Williams
Consider the following hypothetical: On an August day, Mary, a South Carolina citizen,
is driving along I-26 from Columbia to Folly Beach to enjoy her last free weekend
before school starts back. Suddenly, she is sideswiped by a Big Corp. truck, causing
her to lose control of her car and strike the guardrail. While not seriously injured,
Mary is taken to a hospital where she is examined, x-rayed, and CT scanned out of
precaution, racking up thousands of dollars in medical bills in the process. Once
back in Columbia, Mary meets with a lawyer and decides to sue Big Corp. in the Orangeburg
County Court of Common Pleas under the theory of respondeat superior.
While this hypothetical may simply seem like a run-of-the-mill negligence action,
it poses several interesting issues regarding removal. First, how does a federal court
determine whether it has subject-matter jurisdiction over a removed case like Mary’s
where the amount in controversy is not specifically stated? Second, what weight, if
any, should the court give a post-removal damage stipulation in determining whether,
at the time of removal, the amount in controversy exceeded the $75,000 threshold for
federal jurisdiction? Finally, how can defendants counter the effectiveness of such
This Note seeks to answer these questions and proposes a process that would prevent
post-removal damage stipulations from being considered in the amount-in-controversy
analysis. Section II.A generally discusses the background of, and procedures for,
removal. Section II.B explains how plaintiffs use damage stipulations to support remand
orders in cases where their original complaint is silent as to the amount of damages
sought. Section III.A analyzes how courts in the District of South Carolina weigh
post-removal damage stipulations when deciding remand motions, while Section III.B
discusses the issues associated with the treatment of these stipulations. Finally,
Part IV provides a recommendation for courts in the District of South Carolina to
adopt, as well as a procedure for “removal-minded defendants” to follow, that will
limit the effectiveness of post-removal damage stipulations.
by Dixie N. McCollum
South Carolina has one of the highest rates of past-due medical debt, which is a leading
cause of bankruptcy for many South Carolinians. Delinquent medical debt is especially
common among southern states due to their higher numbers of uninsured individuals
and lower household incomes. One aspect that varies within the southern region, however,
is how state governments deal with unpaid medical debt.
South Carolina allows creditors to collect medical debt, along with certain other
forms of debt, by garnishing state income tax refunds. South Carolina authorizes this
tax refund reduction predominantly through its Setoff Debt Collection Program (SDCP).
Under the program, qualifying creditors may submit claims of unpaid debt to the South
Carolina Department of Revenue (SCDOR). SCDOR then processes the claims, identifies
the debtors, and garnishes the debtors’ tax refunds on behalf of their creditors.
Alternatively, qualifying creditors can file claims through the South Carolina Association
of Counties (SCAC) or the Municipal Association of South Carolina (MASC). These two
associations act as clearinghouse entities that process and send claims to SCDOR on
While SDCP seems to be an adequate method for the state’s collection of unpaid debts,
it suffers from two major pitfalls: lack of transparency and lack of consumer protections.
Specifically, although hospitals use SDCP to collect unpaid medical debts, it is unclear
how those hospitals qualify for participation and why many choose to collect through
SCAC rather than SCDOR. The lack of public information and disclosure regarding SCAC’s
involvement exasperates the issue. Further, although South Carolina has been referred
to as a consumer-friendly state, SDCP does little to adequately protect individuals
with past-due medical debts. SDCP’s lack of transparency and consumer protections
often go hand in hand because, although it is extremely difficult for taxpayers to
access information on the program, they are nonetheless subject to tax refund garnishment
with few, if any, options for recourse.
Challenge the conventional. Create the exceptional. No Limits.