South Carolina law review最新文献

{"title":"When to Praise the Machine: The Promise and Perils of Automated Transactional Drafting","authors":"W. Foster, A. L. Lawson","doi":"10.2139/ssrn.3160981","DOIUrl":"https://doi.org/10.2139/ssrn.3160981","url":null,"abstract":"Recent technological innovations hold the promise of streamlining legal research, managing massive due diligence projects, efficiently constructing contractual provisions, and analyzing inconceivably large quantities of data. But along with the excitement over the nearly limitless potential of rapidly advancing legal technology comes uncertainty about the future role of the human lawyer and a bevy of concerns for the profession. In artificial intelligence, attorneys see both a welcome liberation from picayune tasks and frightening implications for their work stream and the relevance of their existing skill set. While recent attention has been focused on new research and litigation capabilities, transactional and estate planning lawyers have utilized document automation and assembly software for decades. These programs can perform an array of functions, from populating repetitive fields in a simple purchase agreement to producing an entire portfolio of documents for a client’s estate plan. Like artificial intelligence programs, the proliferation of automation and assembly software presents both opportunities to improve the quality and efficiency of legal services and also difficult questions regarding the appropriate role of an attorney providing technology-assisted counsel. And despite decades of widespread use, scant attention has been paid to the ethical implications that reliance on technology may have on transactional practice. In particular, although automation can reduce technical errors and rapidly incorporate evolving laws and techniques, reliance on software creates risks of undue deference to computer-generated outputs and of temptation to undertake representations that strain an attorney’s sphere of proficiency. This Article addresses the expectations for effective transactional representation by highlighting several common missteps in typical transactional engagements. It then describes the increasingly sophisticated tools attorneys have used to more efficiently and effectively draft legal documents. The Article then turns to the potential of automation and artificial intelligence programs to eliminate drafting mistakes and to raise the standard of transactional practice. It implores caution, however, as attorneys rely more heavily on computer assistance in delivering legal services and products. As it becomes easier to generate a professional-looking work product in a wide range of complex areas of law, the risks of professional misadventure multiply. In this sense, technology amplifies some perils as it resolves others.","PeriodicalId":82746,"journal":{"name":"South Carolina law review","volume":"69 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.3160981","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47734871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"If It Walks Like Systematic Exclusion and Quacks Like Systematic Exclusion: Follow-Up on Removal of Women and African-Americans in Jury Selection in South Carolina Capital Cases, 1997-2014","authors":"A. Eisenberg, A. Hritz, C. Royer, John H. Blume","doi":"10.31228/osf.io/tq75y","DOIUrl":"https://doi.org/10.31228/osf.io/tq75y","url":null,"abstract":"This Article builds on an earlier study analyzing bases and rates of removal of women and African-American jurors in a set of South Carolina capital cases decided between 1997 and 2012. We examine and assess additional data from new perspectives in order to establish a more robust, statistically strengthened response to the original research question: whether, and if so, why, prospective women and African-American jurors were disproportionately removed in different stages of jury selection in a set of South Carolina capital cases. \u0000The study and the article it builds on add to decades of empirical research exploring the impacts (or lack thereof) of Batson and related jurisprudence on jury selection practices. The findings from the earlier study persisted with the stronger dataset in this study and are consistent with many previous studies’ findings indicating that capital jury selection procedures serve to systematically siphon off women and African-Americans through the death-qualification process and peremptory strikes. \u0000Key findings in the earlier study included that the prosecution struck 35% of strike-eligible black potential jurors, accounting for removing 15% of black venire members; that approximately 32% of black venire members were removed for opposition to the death penalty; and that the combined effects of these two stages prevented a total of 47% of black venire members from serving, compared to those stages preventing a combined 16% of the white venire pool from serving. Those findings have for the most part persisted with the stronger dataset here, with slight variations. Here, the prosecution struck 29% of strike-eligible black potential jurors (the average of a 33% strike rate for black men and 25% for black women), accounting for removing 13% of black venire members; approximately 24% of black venire members were removed for opposition to the death penalty; and the combined effects of these two stages prevented a total of 42% of black venire members from serving. This is compared to the prosecution striking 12.5% of strike-eligible white potential jurors, which equates to about 7% of the overall white venire pool; and 6.2% of white potential jurors being removed for anti-death views, with the two stages preventing, combined, an approximate 13% of white venire members from serving.","PeriodicalId":82746,"journal":{"name":"South Carolina law review","volume":"68 1","pages":"373"},"PeriodicalIF":0.0,"publicationDate":"2017-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44478529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Against Employer Dumpster Diving for E-Mail","authors":"Michael Z. Green","doi":"10.2139/SSRN.2129523","DOIUrl":"https://doi.org/10.2139/SSRN.2129523","url":null,"abstract":"Recent attorney-client privilege cases offer a modern understanding of reasonable expectations of employee privacy in the digital age. Employees have increasingly made electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts have summarily dispensed with these matters by finding that an employer’s policy establishing clear ownership of any communications made through employer-provided devices eliminates any employee expectation of privacy in the communications and waives any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client privilege protection in e-mails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations. As employees must communicate through employer-provided digital devices day and night, these attorney-client privilege cases help expose the fallacy of assuming employees cannot reasonably expect that e-mails will remain private if employer policies mandate the communications are not private. These new cases and related ethics opinions about privileged e-mail offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the facade of assuming employees have no expectation of privacy due to employer policies. Digital age expectations regarding employee use of smart cellular phones, portable laptops, and other employer-provided devices to make communications beyond standard work hours leaves little expectation or opportunity for employees to reasonably communicate privately and confidentially by any other means than through these employer-provided devices. As a result, this article asserts that employer efforts to mine their devices for employee e-mails after disputes ensue comprises a form of electronic dumpster diving that should not be tolerated by courts, legislatures, or attorney ethics committees.","PeriodicalId":82746,"journal":{"name":"South Carolina law review","volume":"64 1","pages":"323"},"PeriodicalIF":0.0,"publicationDate":"2012-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2129523","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67931310","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Index Funds and Securities Fraud Litigation","authors":"R. Booth","doi":"10.2139/SSRN.1996587","DOIUrl":"https://doi.org/10.2139/SSRN.1996587","url":null,"abstract":"Most legal scholars agree that securities fraud class actions do little to compensate investors. Most investors are well diversified and thus are just as likely to sell an overpriced stock as to buy one. Moreover, since the defendant company ultimately pays in a successful class action, holders effectively pay buyers. Although this circularity is widely recognized, few have noted that because of the anticipated payout, the prospect of a class action causes stock price to decline by more than it otherwise would, thus generating additional (feedback) loss for both buyers and holders. In this article, I describe a method by which one can measure the net effect of class actions on fund investors who are both buyers and holders of a fraud-affected stock. Since an index fund almost always holds more shares than it buys during the fraud period, an index fund almost always loses more than it gains. Thus, class actions systematically penalize rational index fund investors for the benefit of irrational undiversified stock-picking investors. Accordingly, index funds should oppose class actions as contrary to the best interest of investors. To be sure, one possible problem is that in the absence of the deterrent effect of class actions, there might be more securities fraud. The answer is that whenever there is a meritorious class claim, the corporation itself will also have a claim – against the individual wrongdoers – for any increase in cost of capital resulting from reputational harm and any direct expenses relating to enforcement proceedings. In a class action, these elements of loss are imbedded in the price decrease that occurs when the fraud is discovered. But these losses are in fact suffered by the corporation and should be the subject of a derivative action for the benefit of the corporation – and thus all of the stockholders – not a class action for the benefit only of those who bought during the fraud period. Although the corporation claim may be smaller than the class claim in the aggregate, it is likely to be quite substantial from the point of view of individual wrongdoers and thus to constitute a significant deterrent to fraud. Happily, the rules of civil procedure provide a clear fix for the problem. First, the law is clear that a claim that can be handled as a derivative claim must be handled as a derivative claim and that a derivative claim must be resolved first before any class claim may be addressed. Second, no class action may proceed unless the court certifies it as a proper class action. And no action may be so certified if there is any other equally good way to litigate the issues (as by means of a derivative action). But someone make the argument. It is puzzling that no one has done so, especially because derivative actions eliminate feedback losses and serve to restore stock price. There are several possible explanations. One is that insurance does not cover derivative claims as it does class claims. Another is that attorney fees ","PeriodicalId":82746,"journal":{"name":"South Carolina law review","volume":"64 1","pages":"265-322"},"PeriodicalIF":0.0,"publicationDate":"2012-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67836745","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Personal Jurisdiction in the Twenty-First Century: The Ironic Legacy of Justice Brennan","authors":"Richard D. Freer","doi":"10.2139/SSRN.1969142","DOIUrl":"https://doi.org/10.2139/SSRN.1969142","url":null,"abstract":"In 2011, the Supreme Court decided two personal jurisdiction cases. They are the Court's first personal jurisdiction decisions in 21 years. More remarkably, they are the first cases since the Eisenhower Administration in which the Court has applied the iconic International Shoe decision without the participation of Justice William J. Brennan. From McGee in 1957 through Burnham in 1990, Brennan was there. No justice wrote more opinions about personal jurisdiction than he. Yet, for all his efforts to explain his position and persuade his colleagues, he commanded a majority only once, in Burger King in 1985. This article traces Justice Brennan’s personal jurisdiction jurisprudence. Through 1984, he adopted a 'melange' approach, in which all relevant factors are considered ad hoc under an overarching rubric of fairness. Justice Black pioneered the approach, and Brennan championed it for decades. When it became apparent that the Court was going in another direction – one which gave primacy to considerations of defendant-initiated contact with the forum rather than to fairness – Brennan capitulated. This enabled him to write the majority opinion in Burger King, in which he attempted to convert the regnant contact-focused theory into one engaging broader considerations of fairness. The century (and Brennan’s career) ended with the Court’s lamentable efforts in Asahi and Burnham, in which no view could muster more than four votes on the Court. Now we have a new century and two new cases. Though Brennan is cited in each opinion in the two cases, this article concludes that the Court has rejected virtually all of Brennan’s positions in personal jurisdiction. But Brennan’s jurisprudence may have an unexpected and ironic legacy, tracing to a little-noticed portion of his Burger King opinion. Brennan created a regime in which it is virtually impossible to defeat the exercise of jurisdiction by appealing to reasonableness or fairness. The only realistic way for a court to reject jurisdiction is to find that the defendant created no contact with the forum. This explains the obsession with contact in the recent cases and the strained efforts of six justices in one of the new cases to resist finding that a manufacturer can be sued in the state in which its machine caused physical injury.","PeriodicalId":82746,"journal":{"name":"South Carolina law review","volume":"63 1","pages":"7"},"PeriodicalIF":0.0,"publicationDate":"2011-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67818229","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bargaining with Hippocrates: managed care and the doctor-patient relationship.","authors":"Timothy S Hall","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82746,"journal":{"name":"South Carolina law review","volume":"54 3","pages":"689-740"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24579585","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Congressional control of federal court jurisdiction: the case study of abortion.","authors":"Jason S Greenwood","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82746,"journal":{"name":"South Carolina law review","volume":"54 4","pages":"1069-112"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25868735","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Triage in the nation's medicine cabinet: the puzzling scarcity of vaccines and other drugs.","authors":"L. Noah","doi":"10.2139/SSRN.326583","DOIUrl":"https://doi.org/10.2139/SSRN.326583","url":null,"abstract":"For a variety of reasons, vaccines and other critical pharmaceutical products have become increasingly scarce in the last few years, and persistent shortages involving dozens of essential drugs may imperil the public health. Pressures emanating from regulatory agencies, the courts, and insurers have conspired to make some lines of the pharmaceutical business less than attractive. Although concerns about unpredictable tort liability received most of the blame in the past, two other factors may help to account for the latest round of drug shortages: stringent federal control of manufacturing facilities and aggressive cost-containment efforts that further erode profit margins. Whatever the cause, scarce supplies necessitate efforts at rationing that pose their own difficulties for health care providers. Policymakers could avoid putting physicians to such tough choices regarding patients by focusing on ways to ensure the production of adequate quantities of these highly cost-effective medical technologies. Some commentators have called for greater public sector involvement, but this Article concludes that, in addition to bolstering its emergency stockpiles, the federal government instead needs to take steps designed to encourage private manufacturers to continue supplying critical pharmaceuticals. To this end, the government should adopt more flexible regulations governing manufacturing facilities, provide companies with greater protection from the vagaries of tort liability, and avoid pursuing excessive cost-control strategies. Otherwise, patients may continue to lose access to important therapeutic products.","PeriodicalId":82746,"journal":{"name":"South Carolina law review","volume":"54 2 1","pages":"371-403"},"PeriodicalIF":0.0,"publicationDate":"2002-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68579904","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Triage in the nation's medicine cabinet: the puzzling scarcity of vaccines and other drugs.","authors":"Lars Noah","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>For a variety of reasons, vaccines and other critical pharmaceutical products have become increasingly scarce in the last few years, and persistent shortages involving dozens of essential drugs may imperil the public health. Pressures emanating from regulatory agencies, the courts, and insurers have conspired to make some lines of the pharmaceutical business less than attractive. Although concerns about unpredictable tort liability received most of the blame in the past, two other factors may help to account for the latest round of drug shortages: stringent federal control of manufacturing facilities and aggressive cost-containment efforts that further erode profit margins. Whatever the cause, scarce supplies necessitate efforts at rationing that pose their own difficulties for health care providers. Policymakers could avoid putting physicians to such tough choices regarding patients by focusing on ways to ensure the production of adequate quantities of these highly cost-effective medical technologies. Some commentators have called for greater public sector involvement, but this Article concludes that, in addition to bolstering its emergency stockpiles, the federal government instead needs to take steps designed to encourage private manufacturers to continue supplying critical pharmaceuticals. To this end, the government should adopt more flexible regulations governing manufacturing facilities, provide companies with greater protection from the vagaries of tort liability, and avoid pursuing excessive cost-control strategies. Otherwise, patients may continue to lose access to important therapeutic products.</p>","PeriodicalId":82746,"journal":{"name":"South Carolina law review","volume":"54 2","pages":"371-403"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24530559","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The revolution in human genetics: implications for human societies.","authors":"H T Greely","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82746,"journal":{"name":"South Carolina law review","volume":"52 2","pages":"377-81"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26581549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}