Volume 63 Preview

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[expand title=”Book 1 – Fall” rel=”book-highlander” expanded=”true”]
[expandsub1 title=”Jamie R. Abrams, From ‘Barbarity’ to Regularity: A Case Study of ‘Unnecesarean’ Malpractice Claims” rel=”book1-highlander” expanded=”true”]


Nearly 31% of all United States births are by cesarean section today, reflecting a 50% increase between 1996 and 2006, and revealing a modern “unnecesarean” medical epidemic for birthing mothers.  Recent scholarship has worked extensively to position this epidemic within the reproductive rights framework.  This article uniquely positions this epidemic distinctly in its historical medical malpractice context.

This paper is a case study from “barbarity” to regularity using the high profile cases of Mary Hodges (1859) comparatively positioned next to the recent forced cesarean section case of Laura Pemberton (1996). Ms. Hodges and Ms. Pemberton both litigated questions of interventionist childbirth at transformative moments in the history of childbirth.  This case study reveals that the phalanx-like institutional presence of the medical community drives standard of care decisions, distinct from malpractice liability.  It reveals unique consent considerations for the “laboring mother,” distinct from the fetus/mother considerations.  Finally, it reveals the irreconcilable and paradoxical acceptance of medical uncertainty and rejection of maternal uncertainty.

[expandsub1 title=”Bradley T. Borden & Robert J. Rhee, The Law School Firm” rel=”book1-highlander”]


The Law School Firm draws upon the medical school model to suggest that law schools create affiliated law firms (law school firms). Law school firms would connect legal education to practice in a very real sense for students, faculty, and practitioners. The Article recommends that law school firms should employ experienced fulltime attorneys to attract and help service revenue-generating clients. Law school firms would employ recent law graduates and provide them the opportunity to work on client matters, gain additional substantive knowledge, acquire business development skills, and integrate into the legal profession. After a few years with the law school firm, law graduates should be ready to practice law on their own.

Faculty at the law school and attorneys at the affiliated law firm could collaborate on research. Such collaboration would help legal scholarship remain relevant and would provide practitioners an opportunity to engage in sophisticated academic projects. Students could also assist with such projects, improving their substantive knowledge and writing skills. Faculty and attorneys could also combine their respective expertise to teach students and new lawyers. In particular, attorneys could teach students advanced practice courses, and professors could offer courses on substantive legal topics for the new attorneys.

The classroom provides an excellent setting to teach and learn substantive law. That learning is enhanced if students have exposure to practice settings. The classroom is not, however, suited for teaching practice skills, such as business development, client service, and practice management. The law school firm will provide a venue for developing such skills.

[expandsub1 title=”Edward D. Cavanagh, Making Sense of Twombly” rel=”book1-highlander”]


The Supreme Court’s rulings in Twombly & Iqbal have generated an avalanche of articles in the past three years.  Most of them have been both shrill and critical and have been largely venting, calling for Twombly’s undoing.  There are some pro-Twombly pieces, too, which would likely transport us on the road back to the dark days of code pleading.  What sets this piece apart is that it recognizes the Twombly is here to stay and that the time for venting is over.  Then, it (1) analyzes what the courts are actually doing with Twombly; (2) identifies and discusses common themes emerging from those cases and (3) synthesizes the holdings into some basic principles that the courts might apply in implementing Twombly/Iqbal and looks to what the next steps are.  Among other things, I suggest that (1) the courts apply a proportionality standard in passing on pleadings under Twombly; (2) the courts be circumspect in dismissing cases on the pleadings where information is in the exclusive control of the defendants and no discovery has been had; (3) when courts find complaints deficient under Twombly that they, as a general rule, dismiss claims without prejudice; and (4) the courts avoid the pitfalls of the fact/conclusion dichotomy experienced at common law and under the codes.  I also point out the perverse effect of Twombly—more pleading means more discovery and probably even fewer trials at a time when courts are worried about too much discovery and the vanishing trial.

[expandsub1 title=”Kenneth T. Lopatka, A Critical Perspective on the Interplay Between Our Federal Labor and Arbitration Laws” rel=”book1-highlander”]


The National Labor Relations Board has ruled that an arbitration agreement covering statutory claims—an agreement the Supreme Court has held enforceable under the Federal Arbitration Act (FAA)—is unlawful if the statutory claims include unfair labor practice charges.  Part I criticizes the NLRB’s dispatch of the Supreme Court’s ruling, finds the indicia of Congressional intent inconclusive and explains why the terms of the FAA do not strictly apply to the Board.   The real question is why the Board does not pursue the FAA’s core pro-arbitration policy and adopt the Supreme Court distinction between substantive- rights and forum waivers. Part I then examines the historical and dogmatic theories underlying the Board’s refusal to do so and concludes that none of them prevent the Board from adopting that distinction. By a process of elimination, Part I concludes that the underlying reasons are doctrinal — an adherence to a public vs. private rights dichotomy the Supreme Court more recently has abandoned—and practical– an attempt to remain vital in an era of declining caseload and relevance in contemporary society.

Part II explores an issue that has not yet been decided– whether even if employers make an exception for unfair labor practice charges, their arbitration agreements are unlawful on the theory that an explicit or implicit class action or class grievance ban abridges employees’ NLRA right to engage in “concerted activities”  The article concludes that such an agreement is not unlawful, because the right to engage in concerted activities is not synonymous with a right to satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure or to convince an arbitrator to allow a class grievance and may be exercised without class certification.  More importantly, the FAA, the original version of which predated the NLRA, is part of the surrounding legal landscape that is beyond the purview of the unfair labor practice prohibitions of the NLRA.

[expandsub1 title=”Vivek S. Sankaran, No Harm, No Foul? Why Harmless-Error Analysis Should Not Be Used to Review Wrongful Denials of Counsel to Parents in Child Welfare Cases” rel=”book1-highlander”]


The application of a harmless-error standard by appellate courts reviewing erroneous denials of counsel in child protective cases has undermined a critical procedural right that safeguards the interests of parents and children.  Case law reveals that trial courts – on numerous occasions – have improperly rejected valid requests for counsel, and parents have been forced to navigate the child welfare system without an advocate.  Appellate courts have excused these violations by speculating that the denials caused no significant harm to the parents, which is a conclusion that a court can never reach with any certainty.

The only appropriate remedy for this significant problem is a bright line rule requiring the automatic reversal of the termination of parental rights (“TPR”) decision in situations where a parent is denied the assistance of an attorney at critical stages of the case leading up to the TPR hearing.  This rule is consistent with the Supreme Court’s jurisprudence concerning the denial of counsel in criminal cases and would, as a matter of policy, lead to better outcomes for children in foster care.  It would also help further the appearance of a just decision-making process that respects the rights of all parties affected by the child welfare system, an important consideration given current perceptions of the system.

[expandsub1 title=”Shawn E. Tuma, ‘What Does CFAA Mean and Why Should I Care?’ – A Primer on the Computer Fraud and Abuse Act For Civil Litigators” rel=”book1-highlander”]


Computer fraud is threat to businesses worldwide that is increasing at an exponential rate. Businesses victimized by computer fraud often seek the help of civil litigation attorneys to fight the ensuing legal battles caused by computer fraud. In this article the author draws on his years of litigation experience to explain why, in order to be prepared for this role, civil litigation attorneys need to be familiar with the Computer Fraud and Abuse Act (“CFAA”); the CFAA is the most frequently used law to combat computer fraud. The CFAA provides for civil claims to recover damages and, more importantly, injunctive relief that, when used properly, can effectively win a case from the very beginning. The author then explains why the CFAA, as interpreted and applied, is challenging to master because of its complicated nature as well as the fact that as a body of law it is still evolving jurisprudentially and courts often reach different outcomes on some of its integral provisions. Because of these uncertainties, the CFAA is laden with procedural and substantive pitfalls that can present many problems for unprepared attorneys. The author provides the litigation practitioner with a guide to much of the basic information related to asserting a civil claim under the CFAA which will be helpful to all attorneys handling CFAA civil claims, whether prosecuting or defending. Lastly, the author examines some of the more frequently litigated issues arising under the CFAA including the “access” issue and the very recent opinion by the Ninth Circuit Court of Appeals in United States v. Nosal, a case that could finally usher the CFAA to the United States Supreme Court.

[expand title=”Book 2 – Winter” rel=”book-highlander”]
[expandsub1 title=”Marc D. Ginsberg, Good Medicine/Bad Medicine and the Law of Evidence: Is There a Role for Proof of Character, Propensity, Prior Bad Conduct in Medical Negligence Litigation?” rel=”book2-highlander” expanded=”true”]


The medical negligence lawsuit is an occupational hazard.  It is well known that a significant percentage of physicians have endured a medical liability claim.  These physicians are highly skilled and may have outstanding reputations.  Some may have been the subject of professional discipline, having suffered hospital staff privileges restrictions or license suspensions/revocations. This paper explores the evidentiary implications of physician character, reputation, prior bad conduct and involvement in prior medical negligence litigation.

[expandsub1 title=”Donald H.J. Hermann, Character or Code: What Makes a Good and Ethical Lawyer” rel=”book2-highlander”]


This article examines the changing concepts of what makes a good or ethical lawyer.  These changing models or ideal types are further illustrated or examined by consideration of the depiction of various lawyers presented in American films.  It is a premise of the article that films (along with novels and biographies) provide an opportunity to see a whole person functioning as a lawyer, which permits consideration of the lawyer’s character beyond what is revealed in legal records, including opinions dealing with ethical breeches.  The article traces the transformation of the ideal type of lawyer from lawyer-statesman to lawyer-advocate, and then to lawyer-technician.  At the same time, the article asserts that the development of the ethical lawyer takes place within the lawyer’s character, where virtue is established by training and habit, rather than through compelled adherence to professional codes.

[expandsub1 title=”Maryam Ahranjani, Can They Do That to Me?! Does the Eighth Amendment Protect Children’s Best Interests?” rel=”book2-highlander”]


Children are our nation’s most valuable resource and also arguably our most vulnerable population. Recent decisions by the Supreme Court, including Roper v. Simmons (2005), Graham v. Florida (2010), and J.D.B. v. North Carolina (2011) indicate its willingness to consider the special characteristics of children in determining their rights; but, by and large, the Court’s analysis does not hinge on the best interests of the child. Can They Do That to Me?! Does the Eighth Amendment Protect Children’s Best Interests? explores case law in the public school and juvenile justice system arenas and concludes that a child-centered approach to punishment will yield better results for everyone – society, parents, and children.

[expandsub1 title=”Tom Zimpleman, The Ineffective Assistance of Counsel Era” rel=”book2-highlander”]


Federal habeas corpus law, which concerns the intersection of federal criminal law and procedure, federal courts, and the division between federal and state sovereignty, has been the subject of one of the most dramatic doctrinal overhauls of the last thirty years, from both legislative and judicial sources. Since the 1970s, the federal courts, using a variety of doctrinal tools, have created substantive and procedural restrictions on the ability of state prisoners to challenge their convictions in federal court, and Congress codified many of those restrictions and added a number of others with the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Paradoxically, however, those efforts to restrict the availability of federal habeas corpus relief have not dramatically affected the number of habeas petitions filed in federal court, even controlling for the growth of the prison population. After examining a number of empirical studies of habeas litigation in federal district courts, this essay suggests that the resilience of habeas corpus as a way of challenging a state court conviction results largely from use of ineffective assistance of counsel claims as a safety valve to otherwise harsh substantive and procedural barriers to habeas petitioners, even after the passage of AEDPA. This essay also suggests that the federal courts have, in recent years, begun to eliminate the safety valve protections of ineffective assistance of counsel doctrine, and considers what impact this development may have on habeas corpus petitions in the future.

[expandsub1 title=”Adam Lamparello, Taking the ‘Substance’ Out of Substantive Due Process and Returning Lawmaking Power to the Federal and State Legislatures” rel=”book2-highlander”]


This Article takes aim at the notion of “judicial activism,” and argues that the Courts have, in their constitutional decisionmaking, improperly found “rights” in the Constitution that cannot in any manner be inferred from the Constitution’s text, history, purpose or original understanding.

Nowhere has this been more evident than in the Court’s Fourteenth Amendment jurisprudence, where it has singlehandedly taken the Due Process Clause of the Fourteenth Amendment, which calls only for fair procedures before life, liberty or property can be taken, and translated it into a “substantive” doctrine that allows for the judicial creation and recognition of “fundamental” rights, i.e., the right to terminate a pregnancy. The Article argues that neither the text nor the history of the Constitution (or the Fourteenth Amendment) could possibly support recognition of these ‘substantive’ rights.

To make matters worse, in so doing, the Court has removed from the democratic process — and legislative debate — important matters of social policy. The Article argues that the persistence of judicial activism has and continues to threaten the very structure of democratic decisionmaking that the Constitution envisions.

[expandsub1 title=”Christina Parajon, The Unprofessional Sides of Social Media and Social Networking: How Current Standards Fall Short” rel=”book2-highlander”]


The Article discusses the professionalism implications of social media use and social networking. It focuses on young attorneys’ conduct and examines the ways in which current rules of ethics and professionalism norms fail to address a range of social media and networking conduct that has the potential to be unprofessional. The Article proposes a four-part framework for analyzing the professionalism problems of social media use and a model rule, together with a norm-shifting strategy, as a solution.

[expand title=”Book 3 – Spring” rel=”book-highlander”]

Symposium Issue

Arthur Miller, Keynote Address: McIntyre In Context: A Very Personal Perspective

Adam M. Steinman, The Law of the Land: Examining the Three Opinions in J. McIntyre Machinery v. Nicastro

John Vail, Six Questions in Light of J. McIntyre, Ltd. v. Nicastro

Allan R. Stein, The Meaning of “Essentially at Home” in Goodyear Dunlop

Richard D. Freer, Personal Jurisdiction in the Twenty-First Century: The Ironic Influence fo Justice Brennan

Linda Silberman, Goodyear and Nicastro: Observations from a Transnational and Comparative Perspective

Lea Brilmayer and Matthew Smith, The (Theoretical) Future of Personal Jurisdiction: Issues Left Open by Goodyear Dunlop Tires v. Brown and McIntyre Machinery v. Nicastro

Paul D. Carrington, Business Interest and the Long Arm in 2011

Meir Feder, Goodyear and the Coming Demise of Doing-Business Jurisdiction

Collyn Peddie, Mi Casa es Su Casa: Enterprise Theory and General Jurisdiction over Foreign Corporations after Goodyear Dunlop Tires Operations, S.A. v. Brown

Wendy Collins Perdue, What’s “Sovereignty” Got To Do With It? Due Process, Personal Jurisdiction, and the Supreme Court

Howard B. Stravitz, Sayonara to Fair Play and Substantial Justice?

Rodger D. Citron, The Case of the Retired Justice: How would Justice John Paul Stevens Have Voted in Nicastro v. McIntyre?

[expand title=”Book 4 – Summer” rel=”book-highlander”]

Survey of South Carolina Law

John C. Bruton III, The Rise and Fall of Crossman: The South Carolina Supreme Court’s Double Take on Whether a CGL Insurance Policy Covers Progressive Property Damage Resulting from Faulty Workmanship

Wesley D. Greenwell, State Immunity from Patent Infringement Lawsuits: Inverse Condemnation as an Alternative Remedy

Allison Hite, Who’s to Blame?: How Genetic Information Will Lead to More Accurate Decisions in Toxic Tort Litigation

Elizabeth A. Hoskins, South Carolina Women Are Not Pre-Existing Conditions

Christopher R. Jones, eyePhones: A Fourth Amendment Inquiry into Mobile Iris Scanning

Thomas A. Limehouse, Jr., Blinded by a Bright Line: An Analysis of The Fairfield Formula and Its Impact on Existing Laws and Legislative Procedure

Jessica L. O’Neill, Show Me the Money: McClurg v. Deaton and the Introduction of a Defense as to Damages Only for Default Judgments in South Carolina

Neil Cibley Robinson, III, Into the Matrix: The Future of the Unauthorized Practice of Law in Real Estate Closings Following Matrix Financial Services v Frazer

Michelle E. Theret, Sovereign Citizens: A Homegrown Terrorist Threat and Its Negative Impact on South Carolina

In Memoriam: Matthew J. Perry, Jr.


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