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Joseph F. Rice School of Law

January 2023: Faculty Scholarship & Impact


At CES tech mega-show, driverless cars show promise, limitations >> 
IndustryWeek (feat. Bryant Walker Smith)
January 4, 2023 

Carmakers have another screen in their sights: your windshield >> 
Road & Truck (feat. Bryant Walker Smith)
January 23, 2023 

South Carolina revisits shield law as Supreme Court debates firing squad, electrocution >>
Greenville News (feat. Madalyn K. Wasilczuk)
January 24, 2023


Madalyn K. Wasilczuk
“South Carolina Deaths Behind Bars” 

South Carolina Deaths Behind Bars is the first comprehensive look at deaths behind bars in the state, documenting 777 deaths in state jails and prisons from 2015 to 2021. Assistant Professor Madalyn Wasilczuk and her Eighth Amendment Law & Litigation students sent 196 FOIA requests to carceral facilities across the state. The report from these requests analyzes trends among these deaths, including the high number of violent deaths in our state prisons. In addition, it shows that the South Carolina Department of Public Safety data missed deaths in custody that Wasilczuk and students counted. This report gives the public a look into these institutions, often hidden from the public eye, and creates opportunities for discussion of how to meet constitutional obligations to those held in custody in South Carolina. 


Etienne C. Toussaint
Tragedies of the Cultural Commons, 6 California Law Review 110 (2022) 

In the United States, Black cultural expressions of democratic life – i.e., the cultural beliefs, values, and practices that shape how communities pursue their well-being – have often been excluded from the law and policymaking process. By failing to consider those unique experience, the law has enabled hardship and tragedy for many politically disempowered and socioeconomically excluded communities. This Article uses the origin story of hip-hop music to highlight this unique relationship between law and culture. It suggests that if law is both constitutive of and constituted by dominant cultural views then, in the United States, Black cultural expressions of democratic life (such as the democratic ideas expressed in early hip hop music) have historically labored under a white supremacist vision of law and order. Racial justice, then, demands amplifying the political voices of marginalized communities.

Lisa V. Martin
Securing Access to Justice for Children, 57 Harvard Civil Rights Civil Liberties Law Review 615 (2022)

Civil courts are uniquely important to children as democratic citizens. Because children are restricted from many core forms of democratic participation, courts provide a rare forum for children to voice their perspectives and concerns, seek redress for harms, and vindicate their legal rights. Yet, courts also are uniquely inaccessible to many child litigants. Several age-based procedural barriers restrict children’s access to the courts. Because these barriers impose substantial financial costs, they can operate as an absolute bar to claims by low and moderate-income children. Federal courts bear a special obligation to protect child litigants within civil litigation. Yet, rather than help children surmount procedural barriers, courts frequently dismiss children’s claims altogether, communicating implicitly, and sometimes explicitly, that children are better served by not pursuing justice. This Article explores the special importance of court access for children themselves and for the democratic system. It examines the doctrinal and philosophical foundations of the procedural barriers that exclude children’s claims. And it proposes specific reforms to eliminate these barriers and facilitate access to civil justice for all children.

Josh Eagle
On the Legal Life History of Beaches, 2023 University of Illinois Law Review 225 (2023) 

Climate change is, among other things, making it more and more difficult to get to the beach. Recent studies show that rising sea levels have been shrinking America’s beaches through erosion and inundation. This trend is unlikely to slow down anytime soon, and some scientists predict that we will see feet of additional sealevel rise within our lifetimes. While beaches are shrinking, reducing the availability of recreational opportunit ies for locals and tourists alike, the number of people who want to visit the beach has grown dramatically. The growth in demand is due to a variety of factors, including the very low cost of going to the beach, its prominent place in American culture, and — of course — the fact that the combination of oceans, waves, and sand makes for an irreplaceable outdoor experience. This Article explains how the current privatization movement is contrary to almost a millennium’s worth of common law meant to ensure that beaches would continue to supply the ecosystem service of “connectivity”— a low-cost connection between land and sea—not just to the wealthy, but to the working person and the wanderer as well. After explicating the conflict between privatization and tradition, the Article goes on to provide a number of theories that history-conscious courts can use to strike a blow for equality and to restore a healthy balance between public and private rights. 

Emily Suski 
The Two Title IXs, 101 North Carolina Law Review 403 (2023) 

The Supreme Court held that schools violate Title IX when they respond with deliberate indifference to sexual harassment. Despite Title IX’s broad proscription on sex discrimination and this uniform standard for evaluating sexual harassment claims, the lower federal courts’ assessments of those claims produce disparities. Counterintuitively, given that K–12 students both suffer more sexual harassment and more harm from it, courts provide them less protection from sexual harassment under Title IX than students in higher education. The courts thus create two sets of Title IX protections, or two Title IXs. Further, these disparities implicate race. By affording more protection from sexual harassment to higher education students than K–12 students, the courts provide more safeguards in the schools that enroll mostly white students and fewer in the schools that increasingly, often predominantly, enroll Black and Latinx students. Because Black and Latina girls under the age of eighteen suffer more sexual harassment than older students or white students of any age, the courts deny the full force of Title IX’s protections to the students who need them most. To remedy these multilayered disparities in Title IX protections, identified here for the first time in the academic literature, this Article proposes both individual and structural reforms. 


Kevin Brown (panelist)
Hot Topics Panel: The Future of Race in Admissions 
Annual Conference of the American Association of Law Schools
January 5, 2023

Etienne Toussaint
Experiential Mainstreaming in the Law Curriculum
Annual Conference of the American Association of Law Schools, Section on Clinical Legal Education
January 5, 2023

Etienne Toussaint
AALS Arc of Career Program: The COVID Care Crisis in Legal Academia
Annual Conference of the American Association of Law Schools
January 6, 2023

Etienne Toussaint
Teaching Towards Equity: The Use of Pedagogy to Overcome Barriers
Annual Conference of the American Association of Law Schools, Section on Women in Legal Education
January 6, 2023

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