Faculty Scholarship

Recent Scholarship from June - November 2013

Below is a partial list of articles and other works written or published by members of the faculty between June and November 2013. See previous articles here.

To download an individual article, you can click on the PDF link next to the article. To be able to download all past, present, and future articles written by members of the faculty, you can create a free account on the Social Science Research Network (SSRN) by clicking on this link: Create a Free Account on SSRN. Then, you can click on the SSRN hyperlink next to any article to download it.

The School of Law is also embarking on a new social media presence highlighting faculty scholarship. If you would like links to upcoming articles along with brief descriptions to come to you, follow us on Twitter: https://twitter.com/UofSCLawScholar.

Derek W. Black Derek W. Black
Professor of Law
Teaches: Constitutional Law; Evidence; Civil Rights Seminar; Education Law and Policy

Started the Education Law Prof Blog in summer 2013, of which he is the editor: http://lawprofessors.typepad.com/education_law/

Marie C. Boyd Marie C. Boyd
Visiting Assistant Professor of Law
Teaches: Torts; Food & Drug Law; Administrative Law

Zoning for Apartments: A Study of the Role of Law in the Control of Apartment Houses in New Haven, Connecticut, 1912—1932, 33 Pace L. Rev. 600 (2013) [SSRN] [PDF]

Abstract: This article seeks to contribute to the legal and policy debates over zoning by providing a more detailed examination of the impact of apartments on both pre-zoning land use patterns and the zoning process during the formative initial stages of zoning in the United States than has been provided in the literature to date. Specifically, this Article analyzes the impact of apartments on both pre-zoning land use patterns and the zoning process in New Haven, Connecticut. It focuses on the period beginning with the selection of New Haven's first Zoning Commission in 1922, and concluding with the passage of New Haven's first zoning ordinance in 1926. Through this detailed historical account of the realities of zoning, this Article demonstrates how — due to delays in the enactment of zoning — New Haven's first zoning ordinance, rather than shaping the future growth of the regulated area, was instead shaped by existing land use patterns and political considerations.

Thomas P. Crocker Thomas P. Crocker
Professor of Law
Teaches: Constitutional Law; Criminal Procedure; Free Speech and Democracy; Law & Literature; The Constitution & National Security

Order, Technology, and the Constitutional Meanings of Criminal Procedure, 103 J. Crim. L. & Criminology 685 (2013) [PDF]

Excerpt: With new technologies accompanied by new roles for police in providing security and maintaining order, the Fourth Amendment's relevance to modern life is becoming increasingly tenuous. In fact, one federal appeals court judge recently announced the death of the Fourth Amendment. Entrenched constitutional doctrine and technological advances have worked together to kill it. The Fourth Amendment protects only reasonable expectations of privacy, but the Supreme Court claims one cannot have an expectation of privacy in anything shared with another person—and we share practically everything. As a result, "the Fourth Amendment is all but obsolete." The third-party doctrine, which removes Fourth Amendment protection from information shared with another person or entity, and the circularity of expectations of privacy, which depend on both judicial and social interpretive practices, have all but interred it. A dead Amendment combined with robust police practices may not augur a robust constitutional future in light of new technological and social practices.

This Article explores how current Fourth Amendment doctrine, whether construed in terms of property rights or expectations of privacy, facilitates background order-maintenance conceptions of police practice.

Josh Eagle Josh Eagle
Professor of Law
Teaches: Coastal Conservation Law; Coastal Conservation Seminar; Environmental Law of Natural Resources; Property I; Property II

Professor Eagle continues to serve on a National Academy of Sciences/National Research Council Panel, created by Congress, to study the environmental and economic impacts of the BP Deepwater Horizon oil spill. The Panel's latest report is "An Ecosystem Services Approach to Assessing the Impacts of the Deepwater Horizon Oil Spill in the Gulf of Mexico": http://www.nap.edu/catalog.php?record_id=18387.

Description: As the Gulf of Mexico recovers from the Deepwater Horizon oil spill, natural resource managers face the challenge of understanding the impacts of the spill and setting priorities for restoration work. The full value of losses resulting from the spill cannot be captured, however, without consideration of changes in ecosystem services--the benefits delivered to society through natural processes.

An Ecosystem Services Approach to Assessing the Impacts of the Deepwater Horizon Oil Spill in the Gulf of Mexico discusses the benefits and challenges associated with using an ecosystem services approach to damage assessment, describing potential impacts of response technologies, exploring the role of resilience, and offering suggestions for areas of future research. This report illustrates how this approach might be applied to coastal wetlands, fisheries, marine mammals, and the deep sea -- each of which provide key ecosystem services in the Gulf -- and identifies substantial differences among these case studies. The report also discusses the suite of technologies used in the spill response, including burning, skimming, and chemical dispersants, and their possible long-term impacts on ecosystem services.

Benjamin Means Benjamin Means
Associate Professor of Law
Teaches: Business Associations; Business Crimes; Mergers & Acquisitions; Liberty Theory seminar

The Prudential Third-Party Standing of Family-Owned Corporations, 162 U. Pa. L. Rev. Online 151 (2014) [Journal Site] [PDF]

Abstract: On November 26, 2013, the Supreme Court agreed to decide whether for-profit corporations or their shareholders have standing to challenge federal regulations that implement the Patient Protection and Affordable Care Act (ACA). At issue in the two cases consolidated for appeal, Hobby Lobby and Conestoga Wood Specialties, are regulations mandating that employers with fifty or more employees offer health insurance that includes coverage for all contraceptives approved by the Food and Drug Administration (FDA). The plaintiffs assert that providing certain types of contraceptive care would be contrary to their religious beliefs and allege, therefore, that the mandate violates the Religious Freedom Restoration Act of 1993 (RFRA) as well as the First Amendment's Free Exercise Clause.

The government does not dispute that the family owners of Hobby Lobby and Conestoga Wood Specialties are sincere in their religious objections. However, the mandate applies only to employers and imposes no direct duties upon corporate shareholders. Thus, a threshold issue in these cases and dozens of other pending cases involving for-profit corporations is whether any plaintiff has standing to challenge the mandate. Some courts have concluded that religious objections to the mandate are simply nonjusticiable. Other courts have found standing, either by endorsing the novel proposition that a for-profit business corporation is, itself, a person capable of religious exercise, or by allowing individual owners who have no personal obligations or liability under the ACA's mandate to nevertheless interpose a religious objection.

We offer a much simpler alternative: under well-established exceptions to the prudential rule against third-party standing, one party can sometimes assert the interests of a third party. Allowing Hobby Lobby and Conestoga Wood Specialties to litigate religious objections to the mandate on behalf of their shareholders obviates the need for the Court to venture into uncharted territory. The crucial insight is that the corporation's injury need not be religious in nature for the religious objections to the ACA regulations to be adjudicated. So long as the corporate plaintiff is injured economically by the regulations, it has standing under Article III to challenge them. At that point, the corporation's assertion of the constitutional or statutory rights of absent third parties is properly analyzed under the rubric of third-party standing.

Colin Miller Colin Miller
Associate Professor of Law
Teaches: Criminal Law; Criminal Adjudication; Evidence

No Explanation Required?: A Reply to Jeffrey Bellin's eHearsay, 98 Minn. L. Rev. Headnotes (forthcoming 2013) [SSRN] [PDF]

Abstract: You see why I tell you I ain't want to be no damn juror. Some dude just come by my house and tell me he going pay me money to say not guilty. Now I don't know what to do, because if I tell the judge they're going to know it's me.

I know, right. Now I scared because I don't want them to do anything to me or [my daughter][ ... ]

The above were text messages sent by a juror to her sister after Ikim Blackett allegedly threatened and then tried to bribe her in an attempt to convince her to find one of several defendants "not guilty" of various drug crimes. At Blackett's ensuing trial for jury bribery, the juror testified that, while she was on her front porch, Blackett approached her and mentioned the word "nitroglycerin." The juror then "asked Blackett what 'nitroglycerin' meant and he responded 'not guilty.'" When this threat fell on deaf ears, Blackett offered the juror $1,500 in exchange for her vote. After again declining, the juror went to her bedroom and sent the above text messages.

Should the text messages have been admissible because the juror took the witness stand and testified at trial? If the juror were "unavailable" at trial, should the text messages have been admissible? According to Professor Jeffrey Bellin's article, eHearsay, the answer to both questions is "yes" as he crafts hearsay rules that cover both situations. This paper agrees with Professor Bellin on the first question but disagrees with him on the second.

Eboni Nelson Eboni Nelson
Professor of Law
Teaches: Contracts; Consumer Law; Commercial Law; Race, Class and Education

In Defense of Deference, 47 Richmond L. Rev. 1133 (2013) [SSRN] [PDF]

Abstract: Less than a decade after deciding Grutter v. Bollinger, the Supreme Court will return to the contentious debate regarding race-based affirmative action when it considers the plan challenged in Fisher v. University of Texas. Although modeled after Grutter, an examination of the plan's constitutionality is potentially complicated by the operation of the Texas Top Ten Percent Plan — an arguably effective race-neutral alternative. Central to the Court's inquiry will be its willingness, or lack thereof, to respect UT's assessment that despite the gains in diversity achieved by the Ten Percent Plan, the consideration of race in admissions decisions continues to be necessary to achieve its academic mission and goals. This article urges the Court to respect educators' good faith decision making, particularly when it involves the development of academic missions as well as the measures needed to accomplish them. Failure to do so would undermine the Court's prior practice of respecting educators' autonomy as well as the Court's call for restrained judicial involvement in complex, educational decision making.

The article begins with an examination of the challenged plan as well as the Fifth Circuit's opinions upholding the plan's constitutionality. Following this examination, the article challenges the contention that deferring to educators' race-based decision making "represents a digression in the course of constitutional law." It argues that when properly viewed as a means by which to inform rather than to weaken a strict scrutiny inquiry, deference is an appropriate principle to apply when examining the constitutionality of race-based admissions plans such as that employed in Fisher. In light of the expertise and knowledge needed to craft and implement effective measures to carry out a university's educational mission, the article urges the Court to defer to the University's judgments concerning not only its asserted compelling interests, but also the narrowly tailored means by which to achieve such interests.

Aparna Polavarapu Aparna Polavarapu
Assistant Professor of Law
Teaches: International Human Rights Skills Course; Transnational Law; Rule of Law Seminar

Reconciling Indigenous and Women's Rights to Land in Sub-Saharan Africa, 43 Ga. J. Int'l & Comp. L (forthcoming 2013) [SSRN] [PDF]

Abstract: In sub-Saharan Africa and globally, battles for rights relating to customary law are common. Indigenous groups throughout the African continent are fighting to maintain access to lands they hold in customary tenure as competition for land increases, while women fight against application of customary laws that deny them rights to attain or control property. Elsewhere around the globe, indigenous groups, particularly those in resource-rich areas, are vulnerable to land grabs from investors and governments. In the in the Americas, Europe, and Asia, indigenous groups face threats to their lands and natural resources. While indigenous rights activists call for government recognition of indigenous land rights and livelihoods, the "women question," or, how to ensure the protection of indigenous women's rights, remains an open question. This Article considers how African state governments can legally recognize customary land tenure in a manner that protects indigenous groups while still affording property and other rights to women, and argues that women's rights and customary law conflict enough such that any legal system that both protects customary tenure and aims to protect women's rights to land ownership must, at some level, fundamentally alter aspects of customary systems of land ownership. Because of the global nature of these problems, any resolution in sub-Saharan Africa is certain to have implications worldwide.

Wadie E. Said Wadie E. Said
Associate Professor of Law
Teaches: Criminal Law; Criminal Procedure; Immigration Law; International Human Rights Seminar

Sentencing Terrorist Crimes, 75 Ohio St. L.J. __ (forthcoming 2014)

Abstract: Where sentencing in cases involving politically motivated violence was once straightforward, since violence was at the root of a criminal conviction, the modern terrorism prosecution now relies largely on material support charges unconnected to any violence and on inchoate criminal activity not likely to result in actual violence. The passage of a terrorism sentencing enhancement reflects the government's resolve to increase penalties for a certain class of offenses. However, as this Article argues, terrorism sentencing jurisprudence has exposed problems of fidelity to Supreme Court precedent in the context of the limits on fact-finding and due deference to the standard of review.

Ned Snow Ned Snow
Associate Professor of Law
Teaches: Property; Copyright Law; Intellectual Property; Cyberlaw

The Regressing Progress Clause: Rethinking Constitutional Indifference to Harmful Content in Copyright, 47 U.C. Davis L. Rev. 100 (forthcoming 2013) [SSRN] [PDF]

Abstract: The Constitution's Progress Clause purports to restrict Congress's copyright power to works that "promote the Progress of Science and useful Arts." For most of the past two centuries, this Clause has set a minimal content-based standard for copyright eligibility. It denied protection for a work whose content did not rise to the level of useful knowledge, in that the work either lacked compositional value or portrayed an immoral or unlawful subject matter. As evidenced by judicial and scholarly writings, this construction of the Progress Clause was consistent with the 1903 decision in Bleistein v. Donaldson Lithographing Co., where the Court warned against judges imposing their own aesthetic values in determining copyright eligibility. In recent years, however, courts and commentators have subtly changed the standard of the Progress Clause from useful knowledge to general knowledge. And some courts have construed the Progress Clause as applying only to the Copyright Act as a whole — not to individual works. These changes in the interpretation of the Progress Clause have led some courts to extend copyright to all subject matter, ignoring the content-restrictive function of the Progress Clause altogether. Yet that function serves a valuable constitutional purpose. Some types of expression fail to promote, and even impede, the progress of science and useful arts. Although standards of progress may change, the law's ability to apply standards should remain constant under the Progress Clause. This Article proposes that the Progress Clause once again serve as a content-based standard for copyright eligibility.

Marcia A. Yablon-Zug Marcia A. Yablon-Zug
Associate Professor of Law
Teaches: Advanced Family Law; Family Law; Federal Indian Law

The Real Impact of Adoptive Couple v. Baby Girl: The Existing Indian Family Doctrine Is Not Affirmed, But the Future of ICWA's Placement Preferences Is Jeopardized, 41 Capital L. Rev. __ (forthcoming 2013) [SSRN] [PDF]

Abstract: On July 3, 2013, Dusten Brown and his wife Robin, and Brown's parents, Tommy and Alice Brown, both filed actions to adopt "Baby Veronica", the four-year-old girl at the heart of the U.S. Supreme Court's recent decision in Adoptive Couple v. Baby Girl. The Browns' adoption petitions were based on the assumption that the Baby Girl Court did not affirm "The Existing Indian Family Doctrine," a doctrine which limits application of The Indian Child Welfare Act (ICWA) solely to children previously in the care or custody of an Indian relative. The Browns believed ICWA's placement preferences, which give preference to Indian relatives in Indian child adoption cases, continued to apply to their case and required Veronica's placement with an Indian relative. A close reading of the Baby Girl opinion supports the Browns' position. Nevertheless, on July 17th, the South Carolina Supreme Court issued a remand to the South Carolina family court to finalize Veronica's non-Indian adoption. According to the South Carolina Supreme Court, the ICWA placement preferences were inapplicable because neither Brown nor his parents had filed adoption petitions at the time of the original hearing.

The South Carolina Supreme Court's ruling misinterprets the U.S. Supreme Court's decision regarding the applicability of ICWA's placement preferences to Veronica's adoption. Unfortunately, the South Carolina court's decision is likely only the first of many that will reveal how the Baby Girl decision will be used to limit the applicability of ICWA's placement in future ICWA cases. This article will argue that the Baby Girl decision did not affirm the Exiting Indian Family Doctrine, but that it did significantly curtail the applicability of the placement preferences in many future ICWA cases.

Faculty A to Z