Faculty-published book topics at the center of public debate
4 School of Law professors have released books on subjects dominating national conversations
Posted on: February 9, 2021; Updated on: February 9, 2021
By Rob Schaller, schallew@law.sc.edu, 803-777-5611
Intuition, experience, observation — call it what you will, but four University of
South Carolina School of Law professors saw the writing on the wall. Long before 2020,
professors Seth Stoughton, Derek Black, Joseph Seiner and Thomas Crocker began researching
issues and writing books that would come to dominate current national conversations
and will remain relevant for years to come, impacting national views of legal precedent,
education, politics and workplace law.
Seth Stoughton, Evaluating Police Uses of Force, NYU Press
The killings of Breonna Taylor and Daniel Prude by police in March 2020, and of George Floyd just two months later, shed light on the longstanding issue of police violence toward the Black community and ignited a nationwide racial reckoning.
As if on cue, Seth Stoughton’s book, Evaluating Police Uses of Force, was scheduled for publication the day after Floyd died. Stoughton says the book grew out of conversations about police uses-of-force that he had been having for years.
“My co-authors and I realized that not only did the general public not have a complete understanding of the different rules that can apply in use-of-force situations, but many lawyers and elected officials, people who play such pivotal roles in regulating or litigating over the use-of-force, just did not have a sophisticated understanding of the issues," Stoughton says.
Prior to academia, Stoughton was a police officer in Tallahassee, Florida, and for the last nine years he has studied the regulation of policing. Stoughton’s co-authors are Geoffrey Alpert, a long-time high-risk police activities researcher at South Carolina who taught at the FBI National Academy and the Federal Law Enforcement Training Center, and Jeffrey Noble, a police practices consultant who retired as a police executive with 28 years of experience.
Much of Stoughton’s research focuses on what he dubs the “warrior problem” within the profession. According to Stoughton, law enforcement officers have historically been taught from the beginning of their careers to adopt a warrior mentality, which views the world as inherently hostile and encourages officers to look at people as potential threats.
However, as he explained to “The Daily Show” host Trevor Noah during an appearance last summer, the warrior approach sets up a dangerous and counterproductive dynamic, making officers less safe and less effective. Officers, Stoughton says, should prioritize protecting people from unnecessary indignities and harms — including those that can result from policing.
Stoughton says that use-of-force is a particularly tricky area of study because the rules and regulations surrounding it vary widely among the 50 states and the more than 18,000 police agencies in the country. One common element, however, is the lack of robust statewide reporting requirements for use-of-force incidents.
“Media aggregation research is the best source of information we have about police use-of-force across the United States,” Stoughton says. “In a modern democracy, the fact that the states and federal government do such a bad job of collecting and tracking this critical information is, frankly, embarrassing.”
In the months following the book’s release, Stoughton was sought out by the media
and frequently called upon to testify at legislative hearings. He also met with individual
legislators in several states. Closer to home, Stoughton gave testimony before the
South Carolina House Equitable Justice System and Law Enforcement Reform Committee.
Following the committee meeting, South Carolina Supreme Court Chief Justice Donald
Beatty ordered judges and magistrates to stop issuing no-knock search warrants, and
conversations have resumed about plans to fully fund South Carolina’s body camera
law passed in 2015.
Derek Black, Schoolhouse Burning, Public Affairs Publishing
Long before COVID-19 entered the picture, Derek Black began to contemplate the future of public education in America. His work focused specifically on the intersection of constitutional law and public education and what he saw as the growing degradation of the public school system through budget cuts, re-allocation of public money to private schools and growing inequities between wealthy and low-income school districts.
"I had this growing frustration with what I perceived as the devaluing of public education over the past decade and the change in the way politicians talk about education," says Black, who holds the Ernest Hollings Chair in Constitutional Law.
Black scoured the papers and journals of our founding fathers and pored over diaries of slaves and missionaries during the Civil War and Reconstruction. He discovered that the United States always had a strong commitment to providing citizens with an education, even predating the Constitution.
“In order to support this radical new form of government, the founding fathers knew there had to be a system of educating the common voter,” Black says. “One of the most important takeaways from the book is the connection between education and the expansion of democracy. Each major leap forward has coincided with the expansion of public education. Unfortunately, the reverse is true, too.”
Black’s book, Schoolhouse Burning: Public Education and the Assault on American Democracy, published in September, was scheduled for release earlier in the year but 2020 had other plans.
“COVID-19 hit literally as I was signing off on the final page proofs. There was no way I could go to press without acknowledging what was happening with schools,” Black says. “The publisher let me go back and make some important additions. Fortunately, I didn’t have to change much, and the one fundamental truth of the book has played out in real time — the centrality of public education to the functioning of society and democracy.
“This tension-packed summer and fall — in which schools found themselves under enormous pressure to reopen or lose funding, in which the ideological divide between public and private schooling rose to front and center, and in which we are again fighting over how issues of race should be taught in school — are all part of the much longer narrative I tell in my book.”
In late summer, Black served as the sole expert witness in a South Carolina case that would decide the fate of $32 million in federal coronavirus relief funding slated for public schools. He argued that the plan to redirect the money to private schools violated the state’s constitution. In October, the South Carolina Supreme Court agreed, ensuring the state’s public schools would receive necessary funding.
Black also wrote and conducted numerous media interviews, providing his expertise on similar proposals at the federal level that were also later struck down.
“I wouldn’t claim that my work was the cause of change, but I would offer that I have
been part of a larger group of people who produced policy change,” Black says. “Hopefully,
we may be on the verge of causing a second change that will continue to bolster public
education and help strengthen one of the bedrocks of our democracy.”
Joseph Seiner, The Virtual Workplace, Cambridge University Press
Just like with Black, the pandemic caused Joseph Seiner to “hit the pause button” and re-examine his research on employment law after the nation experienced an abrupt shift to a virtual environment in early 2020.
“Employers who once resisted work-from-home are now often requiring it. Even after the pandemic is over, it is unlikely that we will ever see a complete return to what we now consider ‘traditional’ work,” Seiner says. “This will be true for all sectors of our economy, including the demand for legal services, which will see a transition to a much more virtual context.”
Seiner, who holds the Oliver Ellsworth Professor of Federal Practice chair, has studied employment law for more than 20 years, during a time that witnessed unprecedented technological evolutions in the employment landscape in the United States. These changes have challenged the very definition of words like “employer” and “employee.”
In The Virtual Workplace: Public Health, Efficiency, and Opportunity, which will be out this spring, Seiner addresses additional legal issues that have arisen due to the recent virtual shift in employment.
“The overarching problem in this area is that the decades-old law doesn’t fit with our current employment model,” Seiner says. “So much of current employment law was developed during the depression era of the 1930s and the civil rights era of the 1960s, where the brick and mortar, 9-to-5 job dominated the employment landscape.
Seiner says that even after the pandemic is over, a large percentage of employees will continue working from home, opening up the opportunity for a host of new legal challenges centered around group dynamics among employees, including how organizations approach collective bargaining rights when there is no longer a physical place to gather.
“Traditional union organization under the NLRA (National Labor Relations Act of 1935) would take place at a factory or plant or some type of more traditional brick and mortar facility,” Seiner says. “But that does not exist in this virtual environment.”
Remote work may also lead to challenges in litigation. In scenarios where class action becomes necessary, virtual workers will face difficulties satisfying the heightened legal requirement for commonality in employment cases, an initial requirement for filing class-action lawsuits.
And when there is no collective voice in the workplace, things like identifying factors that lead to turnover and measuring job satisfaction become blind spots for organizations, as does the potential for a rise in incidents of harassment.
To this end, Seiner’s work offers a practical framework for evaluating and litigating a new wave of employment law-based suits.
“The courts are struggling with the proper standard to apply in these cases,” Seiner
says. “My hope is that my examination of these issues in The Virtual Workplace will provide a useful template for both litigants and the courts when pursuing claims
brought in this modern economy.”
Thomas Crocker, Overcoming Necessity, Yale University Press
If 2020 taught us anything, it’s that there is no shortage of national crises. Last year, it felt as if our democracy was tested over and over. And we know it will be tested again.
In his book, Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism, Thomas Crocker explores questions that lie at the heart of our democracy’s ability to remain resilient in the face of constant adversity.
What can the American people expect from their president in times of emergency? How would we articulate the moral, legal and political implications of these presidential actions? When should we allow necessity to justify actions in conflict with prevailing legal constraints?
Crocker says this is the first major work to frame and analyze the problem of emergency powers as an internal debate within constitutionalism about the role necessity should play. In it, he posits that “the Constitution was designed to function under ‘states of exception,’ most notably through the separation of powers, and provides ample internal checks on emergency actions taken under the claims of necessity.” But he also cautions that those checks will work only if Congress and the courts apply them appropriately.
Considering examples drawn from counterterrorism practices, he provides analysis of how rights function in relation to claims about what is necessary. He also draws on examples that include the Fourth Amendment’s relevance to surveillance as well as the problem of torture.
Crocker opens the book with an invitation to “Choose your own national security catastrophe.” He then launches into a hypothetical situation — a third deadly attack on U.S. soil in less than a year — and plays out potential scenarios where a president claims necessity, time and again, in the name of protecting the country. But when do these actions cross the line and violate core constitutional commitments? And, how far-fetched is the scenario? One need not look far for real-world situations, such as the treatment of and interrogation methods used on suspected terrorist prisoners following Sept. 11, 2001.
“As I witnessed certain events unfold, both nationally and globally, it seemed like the excuse of necessity always cropped up,” Crocker says. “I set out to explore the states of exception that exist within the American Constitution, specifically through the separation of powers.”
But in the years since 9/11, the need to implement these checks has become particularly crucial. More recent events, such as the COVID-19 pandemic, mass demonstrations turned riots, and what many on both sides of the aisle have deemed an attempted coup after the 2020 presidential election, have only added to their importance. Crocker addresses this need at just the right time.
“it is essential to analyze how the Constitution can best ‘be adapted to the various crises of human affairs,’ in the words of Chief Justice John Marshall, and to reaffirm American constitutional commitments to internal checks and separation of powers,” Crocker says. “My book provides an extensive analysis of how rights function in relation to claims about what is necessary that I hope will be helpful to the courts and Congress, among other bodies, in putting those checks into practice.”