States can put the Supreme Court’s affirmation of the government edicts doctrine, explained in Georgia v. Public.Resource.Org, Inc., into practice by working with publishers to provide free and consistent access to legal information for all citizens, perhaps most importantly for the benefit of America’s incarcerated litigants, many of whom do not have meaningful access to the Internet for the purposes of performing legal research.
Past issues of the South Carolina Law Review can also be found on the USC's Scholar Commons website.
Public education in the U.S. is arguably more racially segregated now than it was in 1954,1 when the U.S. Supreme Court declared in Brown v. Board of Education “that in the field of public education the doctrine of ‘separate but equal’ has no place.” Although scholars may differ in the extent they believe that racial integration might be necessary for educational equality, most agree that educational segregation, whether imposed by law, socioeconomics, or happenstance, is not likely to reverse in any meaningful way in the near future.
NFIB v. Department of Labor, OSHA suggests that a revitalized, more coherent separation of powers doctrine may be emerging at the Supreme Court. This more coherent doctrinal approach appears to include both a more exacting application of the nondelegation doctrine, as it is presently understood, and a more assertive judicial role in reviewing agency interpretations of their own statutory authority. Based on a close reading of NFIB, we offer two insights regarding how the Court might treat a key aspect of separation of powers going forward, specifically the protection of the legislative power vested in Congress by Article I of the Constitution.
Read the full article from Randolph May and Andrew Magloughlin [pdf]
This Article examines the self-defense exception to the attorney–client privilege and lawyers’ duty of confidentiality in ways intended to be useful to courts, lawyers, and scholars alike. It begins in Part II with a brief overview of the attorney–client privilege and lawyers’ duty of confidentiality under Model Rule 1.6(a). Although the attorney–client privilege and lawyers’ duty of confidentiality under Model Rule 1.6(a) and state equivalents sometimes overlap, they are separate and distinct doctrines. Lawyers must understand their obligations under each.
Faced with these fundamental limits on rape law reform, this Article further provides recommendations for reforms that may help keep some bias from entering the legal system and concludes that the way to improve case processing is to ensure that law enforcement and prosecutors operate free of inaccurate generalizations about rape.
This Article provides a renewed perspective on tort damages, namely howthe law of damages should develop to improve fairness in the civil justicesystem. A guiding principle in this regard is to promote damages that reflectreality, not an exaggerated, highly subjective, or hypothetical alternate reality. The Article is intended to assist judges, and in appropriate situations, statelegislatures, in developing balanced modern tort remedies
Read the full article from Victor Schwartz and Christopher Appel [pdf]
This Article focuses on the history and current reality of lieutenant gubernatorial vacancies, exploring the absence of explicit succession provisions and the adoption of these provisions following the Twenty-fifth Amendment, and surveys how lieutenant-gubernatorial vacancies are currently filled. It then argues that states without explicit succession provisions should adopt them and discusses what factors might be considered in drafting these provisions.
This Article examines the existing American frameworks for the disposition of human remains. Classified as “quasi-property,” no one can truly have an ownership interest in them. This piece proceeds by highlighting the shortcomings of the quasi-property designation. It asserts that the needs of the living, which generally trump the interests of the dead, include honoring and protecting the tangible remains of our ancestors. For this reason, the legal status of human remains must change.
This Article accepts that originalism is a powerful and popular (and controversial) method of constitutional interpretation. To the extent we have to reckon with originalism, placing union preservation as the lodestar of the originalists’ constitutional interpretation can make originalism a little more faithful to the historical moment it holds sacred and thus add greater legitimacy to judicial opinions at a time when we need it most.
This Article provides a foundational basis for a timely and relevant discussion in the legal profession beginning with the review of enforcement of Standard 316.