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School of Law

South Carolina Law Review

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 of Law.

Current Issue

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 of life.”

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 coastal environment.

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 States.

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 in GDP.

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 States called on the Fourth Circuit to resolve a question that arose when respective provisions of each collided. At the heart of Copley was 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? Copley answered this question, resolving muddled statutory interpretations that have produced mixed results in bankruptcy courts both inside and outside of the Fourth Circuit. In particular, Copley established 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 in Copley before 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 the Avengers, 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, the Avengers movies 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 stipulations?

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 creditors’ behalf.

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.


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