Volume 66 Editorial Staff

The South Carolina Law Review proudly welcomes the following new members:

Courtney Bowie
Caroline Gimenez
Katie Ramseur
Charles Buist
Shanon Green
Andrew Rawl
Marshall Crane
Chase Keibler
Austin Reed
Richard Davis 
Jonathan LeCompte
 Jennie Rischbieter
Emily Dobson 
 Dillon McDougald
Robert I. Smith, III
Colton Driver 
Keegan B. Miller
Chris Toner
Mary Cothonneau Eldridge
Anna Lynn Moore
Meredith Weisler
Katherine Flynn
 Wesley Moran
Alexandra Williams
Chelsea Gallagher
Alicia Denise Petit
William H. Yarborough
Kayla M. Porter

Volume 66 Editorial Board & Staff

The South Carolina Law Review is proud to announce the Editorial Board for Volume 66:

Spring 2014 Alumni Cocktail

On Task?: Expanding the Boundaries of Legal Education

Publication Announcement

Volume 65, Book 4
Summer 2014

The Board of Editors of the South Carolina Law Review would like to congratulate the following students whose manuscripts were selected for publication in this summer’s Survey of South Carolina Law:

Noah Glen Allen
Financial Disclosures and Fist-Fighting:
“Disorderly Behavior” in the South Carolina General Assembly
Brigid Benincasa
Protecting Our Children:
A Reformation of South Carolina’s Homicide by Child Abuse Laws
 Benjamin Dudek
Rebutting the “Strong Presumption of Reliability” for Effective Assistance:
The Pursuit of Cumulative Analysis for Strickland Claims in South Carolina
Jacob Henerey
Where Have You Been?:
Your Phone Knows (and So Might the Police)
Jennifer Jokerst
Let the Sun Shine:
Reforming South Carolina’s Freedom of Information Act to
Promote Transparency and Open Government
Todd R. Lyle
Phantom Damages and the Collateral Source Rule:
How Recent Hyper-Inflation in Medical Costs Disturbs South Carolina’s
Application of the Collateral Source Rule
 James Sterling
Remote Sales and Use Tax Law:
How Proposed Law Will Impact South Carolina
John Furman Wall, IV
The Veterans Treatment Court Program Act:
South Carolina’s Opportunity to Provide Services for Those Who Have Served
Samantha R. Wilder
The Road Paved with Gravel:
The Encroachment of South Carolina’s Judiciary Through Legislative Judicial Elections
Stephen Harrison Williams
Consumers and Remedies:
Do Limitation of Liability Clauses Do More Harm Than Good?

Additionally, the following essays and case comments will appear in Volume 65’s Fourth Circuit Survey:

Preemption and United States v. South Carolina:
Undermining Our Nation’s Border and the Constitution’s Border Between State and
The Honorable George E. Campsen, III
Chairman, Senate Fish, Game, & Forestry Committee
South Carolina Senate
Blurred Lines:
Distinguishing Between Procedural and Substantive Rules for Purposes of Retroactivity on Collateral Review
Ryan C. Grover
B.A., Wofford College; J.D., University of South Carolina School of Law;
Law Clerk, Senior U.S. District Judge Henry M. Herlong, Jr.
Weakening the “Ripeness Trap” for Federal Takings Claims:
Sansotta v. Town of Nags Head and Town of Nags Head v. Toloczko
Michael B. Kent, Jr.
B.A., University of Alabama; J.D., University of Georgia School of Law;
Associate Professor of Law, Campbell University Norman Adrian Wiggins School of Law
To Lien Strip or Not to Lien Strip:
Fourth Circuit Blesses Controversial “Chapter 20” Valueless Lien Stripping in
In re Davis
Timothy M. Todd, Jr.
B.S., M.S., Liberty University; J.D., Liberty University School of Law; Assistant Professor of Law, Liberty University School of Law
Observations on MacDonald v. Moose
Kevin C. Walsh
A.B., Dartmouth College; M.A., University of Notre Dame; J.D., Harvard Law School;
Associate Professor of Law, University of Richmond School of Law

Volume 65 Preview — Book 3

Opening Remarks for the Keynote

William C. Hubbard
President-Elect
American Bar Association
Partner, Nelson Mullins Riley & Scarborough LLP

Keynote Address: Be the Change

James R. Silenat
President
American Bar Association
Partner, Sullivan & Worcester LLP

Luncheon Keynote: The Promise and Challenges of Limited Licensing

The Honorable Barbara Madsen
Chief Justice
Washington Supreme Court

Changing Markets Create Opportunities: Emphasizing the Competencies Legal Employers Use in Hiring New Lawyers (Including Professional Formation/Professionalism)

Neil W. Hamilton
Director, Holloran Center for Ethical Leadership in the Professions
Professor of Law
University of St. Thomas School of Law

Law School Training for Licensed “Legal Technicians”? Implications for the Consumer Market

Elizabeth Chambliss
Director, NMRS Center on Professionalism
Professor of Law
University of South Carolina School of Law

The Washington State Limited License Legal Technician Program: Enhancing Access to Justice and Ensuring the Integrity of the Legal Profession

Stephen R. Crossland
Chair
Washington Limited License Legal Technician Board

Paula C. Littlewood
Executive Director
Washington State Bar Association

Volume 65 Preview — Book 2

Shifting Sands: A Meta-Theory for Public Access and Private Property Along the Coast

Melissa K. Scanlan
Associate Dean for Environmental Programs
Director of Environmental Law Center & Associate Professor of Law
Vermont Law School

The Surveillance Society and the Third-Party Privacy Problem

Shaun B. Spencer
Director of Legal Skills & Assistant Professor of Law
University of Massachusetts School of Law–Dartmouth

 

Toward a Better Understanding of Ripeness and Free-Speech Claims

Wm. Grayson Lambert
Associate Attorney
McGuire Woods, L.L.P.

In the Aftermath: Responsibility and Professionalism in the Wake of Disaster

Matthew Paul Crouch
Winner of the 2013 American Inns of Court Warren E. Burger Prize

How Quickly We Forget: The Short and Undistinguished Career of Affirmative Action

Robert A. Parrish
Assistant Professor of Law
Elon University School of Law


 

Volume 65 Preview — Book 1

Corporations, Taxes and Religion: The Hobby Lobby and Conestoga Contraceptive Cases

Steven J. Willis
Professor of Law
University of Florida Levin College of Law

Abstract

Beginning in 2013, the federal government mandates that general business corporations include contraceptive and early abortion coverage in employee health plans. Section 4980D of the Internal Revenue Code imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act.

So far, courts have been reluctant to hold corporations have religious rights; as a result, standing of a corporation to assert the religious beliefs and rights of owners has become the primary issue in the twenty-six separate cases moving through the courts. Courts are splits on whether to grant standing; however, a large majority has used a variation of relational or associational standing to grant preliminary injunctions against enforcement of the tax.

This article discusses the relationship of morality and religion to general business corporations. It concludes that over the past few decades, movements for social justice and corporate social responsibility have intertwined business corporations and moral issues, blurring the line between religion and commerce. It also concludes that courts should permit associational standing for closely-held corporations – particularly those electing S status for tax purposes – if the owners have unanimous (or near-unanimous) beliefs.

The South Carolina Probate Code Patched and Refurbished: Version 2013

S. Alan Medlin
David W. Robinson Professor of Law
University of South Carolina School of Law

No Abstract

The Disorderly Conduct of Words: Civil Liability for Injuries Caused by the Dissemination of False or Inaccurate Information

Richard C. Ausness
Everett H. Metcalf, Jr. Professor of Law
University of Kentucky College of Law

Abstract

This Article is concerned with the potential liability of those who disseminate false or inaccurate information which causes physical injury or property damage to those who rely upon it.  It will not address the question of whether those who advocate or depict violence or other antisocial activities should also be subject to liability.  For the most part, such publications are considered to be a form of constitutionally protected speech even when they directly cause physical harm to others.  Although the issue of liability for the publication of factually inaccurate information is narrower in scope that that of liability for the publication of “bad” ideas, there is a surprising amount of variation in how courts treat those who publish such information.  Liability may be based on whether the information relates to the sale of a product, whether it is embodied in a product; or whether it is disseminated electronically or in some kind of tangible form.  This Article will try to determine whether any of these distinctions is relevant to the type of liability rule that is applicable to those who publish inaccurate information.

The Article begins by examining the existing state of the law in this area.  Part I focuses on liability for information associated with the marketing or sale of a product.  In such cases, liability for product sellers may arise from product descriptions in advertising or express warranties, as well as mistakes in instructions and warnings.  Potential liability theories include negligence, misrepresentation, breach of warranty and strict liability in tort.  Part II examines liability for inaccurate information published in books, magazines and other tangible media.  Although plaintiffs have invoked a variety of theories, such as negligence and strict liability in tort, in general, courts have refused to impose liability, either on doctrinal grounds or because of concerns about the chilling effect of tort liability on the free exchange of ideas.

Part III ventures into the largely unexplored area of liability for “information” that is embodied in computer programs as well as the more conventional forms of information that are disseminated over the internet.  Because there are no reported cases on the subject, it is difficult to predict what sort of liability rule would be applied to those who sell computer programs.  In theory, stand-alone computer programs could be considered to be “goods” and, therefore, subject to U.C.C. sales warranties; however, it is less certain that courts will also treat them as “products” for purposes of applying strict principles.  On the other hand, consumers may be able to recover against product sellers when defective computer programs embedded in a product cause it to malfunction.  Part III also considers what liability rules currently apply to inaccurate information that is made available to the public over the internet.  What little case law there is suggests that courts will impose liability of some sort when the information provider is trying to sell a product, but not otherwise.

Finally, Part IV considers a bifurcated liability standard that distinguishes between information that is “commercial” in nature and information that is noncommercial.  Part IV also concludes that a negligence standard is appropriate for those who disseminate information of a commercial nature.  However, publishers of noncommercial information should be subject to tort liability only if they breach an express warranty or engage in fraudulent misrepresentation.

RICO Trends:  From Gangsters to Class Actions

Pamela Pierson
Bainbridge-Mims Professor of Law
University of Alabama School of Law

Abstract

This article addresses the question: why isn’t RICO used much? RICO, the Racketeer Influenced and Corrupt Organizations Act, both a crime and a civil cause of action, was passed in 1970 with much fanfare. The fanfare was deserved. RICO was an imaginative criminal justice initiative aimed at complex, systemic crime. RICO’s civil cause of action was viewed as a robust tool for plaintiffs and a vital supplement to strained law enforcement resources.

 After conducting an in-depth analysis of RICO opinions, reported and unreported, rendered by the federal appellate courts during the seven year time period from 2005-2011, this article has an answer to the question.  Criminal RICO’s time has come and gone, but civil RICO’s potential has not yet been realized.  This article focuses on recent developments in case law that make civil RICO with regard to class actions, and in the pharmaceutical fraud area, newly viable.

The data analyzed in this article suggests that criminal RICO is anachronistic.  Simpler, more streamlined statutes are now available to achieve, far more easily than RICO, the benefits RICO used to uniquely bestow: providing context for isolated acts, linking far-flung actors, penetrating organizations to reach key players, stiff sentences, obtaining forfeiture of property used to commit crime and reaped from crime.  Civil RICO, on the other hand, is an untapped resource. Used properly, civil RICO is an optimal private attorney general tool and a boon for plaintiffs. This is true for two reasons.  First, RICO mandates treble damages at a time when, because of court rulings and legislative actions, many plaintiffs are limited to little more than single damages.  Second, in light of recent court rulings in RICO cases, RICO’s elements dovetail with class action requirements of commonality and predominance, making RICO class actions newly viable.

This article proceeds in eight parts. Part I provides an overview of the RICO statute. Part II explains the methodology used to gather the data in this study. Part III discusses quantitative measurements from the data including how many RICO cases are decided each year and where they are brought. Part IV describes the types of RICO cases brought under both criminal and civil RICO provisions.  Part V examines the issues that have dominated RICO court decisions from 2005-2011. Part V discusses how recent court decisions on issues of “enterprise,” proximate causation and “pattern” make civil RICO cases easier than ever to plead and prove.  Part VI analyzes the outcome in RICO cases including who wins, who loses, and which circuits favor which side. Part VII focuses on RICO class actions discussing past and future trends, successes, and failures.  Part VIII focuses on pharmaceutical fraud cases, noting why they are especially ripe for use of civil RICO.

Market Price Damages Under UCC Article 2:  Some Suggestions for the Next Revision

Henry Mather
Distinguished Professor Emeritus of Law
University of South Carolina School of Law

No Abstract

 

Volume 65 Editorial Staff

The South Carolina Law Review proudly welcomes the following new members:

Noah Glen Allen
Chris Hampton
Taylor Pipkin
Bradley D. Barringer
Jacob Henerey
Samuel V. Priddy, IV
Brigid Benincasa
Jennifer Jokerst
Amanda Reasoner
Emily Bridges
Cordes Kennedy 
 Sheleena Rios
Thomas Perry Clinkscales 
 Jeffrey Lear
James Sterling
Nicole Cuadrado 
Brittany Lins
Christopher Trusk
Benjamin Dudek
Todd R. Lyle
Emma Madison Walker
Grace Faulkenberry 
 John Whitney McGreevy
John Furman Wall, IV
Abigail Forrister
Matthew Wyatt Orville
Samantha Wilder
Alysja Garansi 
 
Stephen Harrison Williams

 

SCLR Alumni Spotlight

Sarah Leverette

PhotoHandler.ashx (2)At the recent South Carolina Law Review Alumni Event in Columbia this past March, students and alumni had the pleasure of meeting or catching up with Ms. Sarah Leverette, a 1943 University of South Carolina School of Law graduate and former member of the Selden Society Year Book, the predecessor of the South Carolina Law Quarterly and the South Carolina Law Review.

Ms. Leverette, born December 30, 1920, in Iva, South Carolina, was not always set on a career in the law.  After completing her undergraduate studies at the University of South Carolina, she considered pursuing a degree in either medicine or law.  While she would have undoubtedly excelled at either pursuit, the South Carolina legal community is fortunate that she chose the path she did.

 Ms. Leverette’s first job after graduating magna cum laude from the University of South Carolina School of Law was as a legal researcher for the S.C. Department of Labor, but she was soon persuaded by the Dean to return to the Law School to accept a position as a librarian and legal writing and research instructor.  Read more

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