Introduction to the Americans with Disabilities Act

The Americans with Disabilities Act of 1990 (ADA) provides comprehensive civil rights protections to individuals with disabilities in the areas of employment, state and local government services, public accommodations, and telecommunications. An individual with a disability is a person who has a physical or mental impairment that substantially limits major life activities; has a record of such an impairment; or is regarded as having such an impairment. Major life activities are functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Congress intended the ADA to keep pace with the rapidly changing technology of the times while addressing the “major areas of discrimination faced day-to-day by people with disabilities.” 42 U.S.C. § 12101(b). Because Congress delegated enforcement of the ADA to the Department of Justice (DOJ), any regulations and administrative guidance offered by the DOJ about ADA compliance are entitled to deference. See Bragdon v. Abbott, 524 U.S. 624, 646 (1998). Specifically, the DOJ requires places of public accommodation to “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1). To effectuate its purpose, the ADA is divided into four major Titles.

Title I of the ADA prohibits discrimination on the basis of disability in employment regarding “job application procedures, the hiring, advancement, discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).

Title II prohibits discrimination on the basis of disability by “public entities.” A public entity is any state government, local government, or any department, agency, or instrumentality of a state or local government. 42 U.S.C. § 12131(1).

Title III prohibits discrimination in “places of public accommodation.” Places of public accommodation are businesses open to the public including, but not limited to, hotels, restaurants, theaters, and other sales establishments. These entities must provide people with disabilities with “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations ofany place of public accommodation.” 42 U.S.C. §12182(a). Further, places of public accommodation must take steps to provide appropriate auxiliary aids and services to effectively communicate with people with disabilities. Under Title III, discrimination can include failing to take necessary steps to ensure that individuals with disabilities are not “excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” 42 U.S.C. § 12182(b)(2)(iii)

person's hands placed on text telephone device
Text Telephone device.
Photo by Sigmund on Unsplash

Title IV addresses telephone and television access for people with hearing and speech disabilities. Under this section, telecommunications providers are required to establish interstate and intrastate telecommunications relay services (TRS). TRS enables callers with hearing and speech disabilities who use text telephone devices (TDDs) and callers who use voice telephones to communicate with each other. Title IV also requires closed captioning of federally funded public service announcements.

For further information on this topic, please consider these Sol Blatt, Jr. Law Library books:

  • Autism and the Law: Cases, Statutes, and Materials, by Lorri Shealy Unnumb; KF4215.U58 2011
  • Disability Studies Today, by Colin Barnes, et al.; HV1568.2.D57 2002
  • Law and the Mental Health System: Civil and Criminal Aspects, by Christopher Slobogin, et al.; KF3828.S59 2014
  • Mental Health and Disability Law in a Nutshell, by Donald H.J. Hermann; KF3828.Z9 H47 1997
  • Positive Behavior Strategies and Discipline Procedures for Students with Disabilities, by David T. Duff, Laura L. Mohr; SC LB1060.2.M64 2012

G. Michael Glover

Juris Doctor Candidate, 2022
Sol Blatt, Jr. Law Library Research Fellow
Senator, Student Bar Association
Regional Parliamentarian, National Black Law Students Association
Editor, Resolved Journal of Alternative Dispute Resolution
Charleston School of Law

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The Road to Pay Equity

At this point it’s well known that there is a pay gap between male and female employees and an even greater gap between males and women of color. According to the Pew Research Center, in 2015 white men had an average hourly wage of $21, while white women only averaged $17, and black and Hispanic women fared even worse at $13 and $12 respectively. As awareness grows the gaps have been shrinking, albeit very slowly. The Pew Research Center states that the pay gap for all women has narrowed since 1980 but the gap persists. According to the Bloomberg gender-equity index 2022, the pay gap is about 35% lower when there is a female CEO. The index also shows that when there are female executives companies are more likely to have gender-based compensation reviews.

clipboard with pie chart graph

The federal government attempted to address the pay gap issue with the Fair Labor Standards Act (FLSA) 29 U.S.C. 206(d) and The Equal Pay Act (EPA) 29 C.F.R. 160. The FLSA made it illegal to pay an employee of one sex less than an employee of another sex for the same work unless it fit into one of four narrow exceptions. The EPA applied the FLSA to more employees such as state and local government employees not specifically exempted and executive, administrative, and professional employees normally exempted by the FLSA.

These attempts are a step in the right direction, but they simply do not fully address the issues being faced by all women and women of color in particular. One barrier to equal pay is the lack of transparency by employers in pay ranges for their listed job vacancies. 57% of women say they have never negotiated their salary, according to Randstad. Listing a pay range, the employer is willing to pay for the listed position will allow everyone, not just women, the opportunity to evaluate whether they are willing to apply at all. This will allow for more qualified candidates and give potential employees, especially women, the knowledge they need for negotiating an appropriate salary.

Everyone’s been there, scrolling through job postings online and sometimes even circling postings in a newspaper. Skimming, though looking for the relevant information, the job title, the description, and the pay rate. How many times have you gotten to the end of the posting and been disappointed because there was no pay posted? It’s hard to judge how willing you’d be to perform a task if there is no reference to how much you would be earning for doing so. It’s also easier for unscrupulous employers to take advantage of potential employees when there is key information missing from the negotiation table. Without pay range information women are far more likely to underbid themselves.

male and female figures balancing on a board.

New York City is just one of the latest in a growing number of jurisdictions to enact laws that attempt to level the playing field. The New York city council passed a law prohibiting employers from posting job listings without minimum and maximum salary information. The new law is slated to go into effect on May 15, 2022, however there are amendments being proposed that would have large carve out effects exempting employers with less than 15 employees and job listings that do not state a specific position according to this article in on The City website.  

In 2019 Colorado enacted legislation that requires employers to post either the specific hourly rate or salary or an hourly or salary range for the position being listed along with the benefits being offered upon hire. This law went into effect on January 1, 2021 and remains in effect as of this writing.

Both California and Maryland have enacted laws requiring employers to disclose the pay range to applicants who request it. California’s law limits the potential employees request to after the applicant has had an initial interview with the employer. California’s law has been in effect since January 2019 and Maryland’s has been in effect since October 1, 2020.

Finally, Nevada has enacted a law requiring employers to provide the wage or salary range for the position to applicants following an interview. However, this law only applies to public officers and employees. This law was effective in October 1, 2021.

All of these state laws were enacted in the last two to three years. None of them have been effective long enough to have any long-term data analysis to speak to how effective they have truly been. However, if the New York City Council is any indication more states are likely to follow suit to require some sort of wage transparency.

If you want to keep up to date with all the latest research and news on this topic Bloomberg law and the “In Focus” topic is an excellent source, you can find the above listed index and much more! Just sign into Bloomberg Law, select the “Practioner Tools” tab, and click on “In Focus Resources.” You’ll see “Pay Equity” and many other emerging legal issues.

Stacie Whitt

Sol Blatt, Jr. Law Library Research Fellow

Juris Doctor Candidate, May 2022

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Library of Congress: Military Legal Resources Collection

As someone who will be entering the Marine Corps Judge Advocate (JA) program, after graduation in May from the Charleston School of Law, I am extremely invested in the Library of Congress’ Military Legal Resources collection, however, you should be too. Social media and news outlets constantly remind us of the various conflicts going on involving the United States. Ever wonder why the United States cannot do things in conflicts? Wonder what military commissions and tribunals actually do or cannot do? Maybe you want more information on international law and whether it has been enforced in the past and whether it can be enforced in the future. Then the Military Legal Resources collection is for you.

The Library of Congress recently made available their collection of Military Legal Resources.  The collection is updated every year, with the last update in 2021. This new release contains print and digitized collections of “Judge Advocate General (JAG) Legal Center and School Materials,” “Historical Materials,” and “Military Law and Legislative History.” The “JAG Legal Center and School Materials” collection contains: 50 years’ worth of publications from the Military Law Review and The Army Lawyer; JAG deskbooks, handbooks, and training materials; and the Lieber Collection on the law of wars for a national army (now codified as the “Lieber Code”).  The “Historical Materials” are organized in chorological order by war. One of the major additions to the “Historical Materials” is all four major publications of the Nuremburg Trials from World War II. The “Military Law and Legislative History” collection contains the most important book of law for the military, the Uniform Code of Military Justice.

Soldiers dressed in army camouflage march in formation.
Photo by Filip Andrejevic on Unsplash

If you are a historical buff, then I have just the collection for you within the “Historical Materials.” The collection has extensive materials on investigations and trials during wars, for example, the Vietnam War’s My Lai Incident, (also known as the “My Lai Massacre”) investigation and hearings. The collection contains a few books on history dating before the 1700s, such as the English Revolution of 1640 (also known as “The Great Rebellion”).

Exterior street view of United States Court of Appeals for the Armed Forces
“Washington DC ~ United States Court of Appeals for the Armed Forces ~ Historical” by Onasill ~ Bill is marked with CC BY-NC-SA 2.0. To view the terms, visit https://creativecommons.org/licenses/by-nc-sa/2.0/?ref=openverse.
The original image was resized, no other changes made. https://www.flickr.com/photos/7156765@N05/20953739922

Working on publishing to a law review or working on your upper-level writing paper? Consider citing one of the numerous articles from The Army Lawyer, The Judge Advocate Journal, or the Military Law Review published by the Army JAG and available in the LOC collection. For example, if you are researching the impact of the Nuremburg Trials, check out Fred L. Borch III, 75th Anniversary of the Nuremburg Trials, The Army Lawyer, Issue 6, 2020, at 13-27, which covers the history, impact, and legacy of the Nuremburg Trials during World War II.

Because the collection was donated by the JAG Legal Center and School, the focus of the collection is on the U.S. Army JAG, rather than the other branches. However, this is still one of the best military law collections available to the general public.

Want more information? See the links below!

Interested to read more? Don’t forget to check out the Sol Blatt, Jr. Law Library collection for military law books. Ask a librarian or Research Fellow to help find more titles. Here are a few sample books:

  • The Age of Deference: the Supreme Court, National Security, and the Constitutional Order, by David Rudenstine, general collection, KF7209 .R83 2016.
  • Court-martial: How Military Justice Has Shaped America From the Revolution to 9/11 and Beyond, by Chris Bray, general collection, KF7625 .B73 2016.
  • Handbook of the International Law of Military Operations, ed. by Terry D. Gill, general collection, K4720 .H36 2010.
  • The Military Law Sourcebook, general collection, KF7209 .M554 2014.

Shelby A. Sipe

Sol Blatt, Jr. Law Library Research Fellow
Editor-in-Chief, MALABU
VP of External Competitions, Trial Advocacy
Legal Research & Writing Fellow
Barbri Ambassador

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Connecting the Dots: How a Legal Externship Can Help Direct Your Legal Career

To tell you that I was nervous would have been an understatement.

It was my last semester of law school, and I did not have much legal work experience. When I say I did not have much legal work experience, I mean it. Previously, I had worked in health care, insurance, and as a student pastor. I researched different ways to gain legal experience as a law student in the Sol Blatt Jr. Law Library at the Charleston School of Law (some of these sources are located at the bottom of this blog—keep reading). Here, I was introduced to the idea of externships. I had heard good things about the externship program at Charleston School of Law. Quite a few of my friends had externed for different attorneys around Charleston, and I heard these externships led to law clerkships and promises of future associate positions. So, to rectify my lack of legal experience, I decided to take the leap and apply for an externship.

I met with Judge Harrington, the director of the externship programs at the Charleston School of Law, about potential placements. Judge Harrington recommended that I look at the available externships on CORE and let her know if any placements interested me. On CORE I saw a few family law and civil litigation firms that caught my attention but not as much as one of the postings—a judicial clerkship. I never thought a judge would consider me for such a position, but I decided to take a chance and included the clerkship in my list of interests.

Two weeks later, I received an email from Judge Harrington. The email subject line read, “Are you on campus today? If so, come to my office immediately.” Immediately? At first, I thought I was in trouble, but I replied and told her I was on my way.

When I arrived at her office, the door was open, as it often is with many Charleston School of Law professors. I walked in, and she greeted me with a proud, “How does Judicial Law Clerk Walls sound?”

Me? Clerking for a judge? I was incredibly excited but, as previously stated, a little bit nervous. I did not know how much that externship would direct my entire view of my legal career. The knowledge and networking that I have gained from this short experience is invaluable. My only regret is that I did not take another externship sooner.

What is a Legal Externship?

An externship is an unpaid, non-time-bound job placement that allows law students to gain work experience in a particular area of law while earning school credit. Generally, externships last a semester and provide law students with associate attorney level training. Though, there are often other opportunities for externships in more niche law sectors, such as a judicial clerkship.

Advantages of Externships

As you wrap up your legal education, you will begin to find out there is a gap between what the classroom teaches you and what you will actually experience in the legal workplace. Externships are a great way to “bridge the gap” between these two worlds. Applying the knowledge you gain through coursework to on-the-job skills is one of the best ways to learn.

There is nothing worse than planning your entire law school career around a particular aspect of the law, only to find out that you hate that area of law after completing your degree. Externships are designed uniquely to introduce students to their field of study before becoming full-time practitioners. Typically, externships are more observation-based rather than hands-on experience. This approach allows you to observe those who are currently practicing in an area of law and ask these professionals questions about their jobs, career goals, and obstacles. These observations will help assure you that you are well suited for your profession of interest.

We have all heard the cliché mantras like “your network is more important than your net worth” and “it’s not what you know, but who you know.” Well, as cliché as these statements are, they are true. Your law school education is an essential qualification, but it can only take you so far. What will bring you further in your legal career is probably the best advantage of externships—networking. Externships give you a unique opportunity to gain references, mentor relationships, and career role models. These individuals can help you identify your strengths and weaknesses, develop your career path, and give you a sense of belonging in your field of law.

How to Get an Externship

To qualify for an externship, you must have completed 27 credit hours and be in good academic standing. Externships are available in the fall, spring, and summer semesters. Be on the look-out for emails about potential externships or visit the CORE website about externship postings. If you have any further questions about the externship program, you can reach out to the department here.

Additional Reading on Externships

For additional sources on the benefits of externships and internships, visit the Sol Blatt Jr. Law Library at the Charleston School of Law. Below are multiple sources available for check-out at your convenience:

FedLaw: Internships with Federal Legal Agencies; Car. Serv. LC1072.I58 F42

For the Prosecution: Internships with America’s Prosecutors; Car. Serv. KF9640.A15 F67

Green Law: Public Interest Environmental Legal Internships; Car. Serv. KF299.P8 G74

Internships for Law Students; Car. Serv. GV583 .I57

Judicial Externships: The Clinic Inside the Courthouse; KF8771 .C63 2016

Public Sector/Public Internships: Career Development Opportunities for all Law Students; Car. Serv. pamphlet

Marshall D. Walls

Sol Blatt, Jr. Law Library Research Fellow

Juris Doctor Candidate, 2022

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Jurassic Law: South Carolina’s Paleontology and its connection with the Legal Field: Federal Laws Regarding Paleontology

Many are unaware of South Carolina’s footprint in the paleontology community. Even more are scratching their heads wondering what it has to do with the legal field, but there are various statutes and regulations that govern the act of excavating archaeological and paleontological finds. For those novice paleontologists or any future member of the community, check state statutes and regulations before going to collect any fossils or artifacts. Before we discuss the implications the state’s fossil record has had on the legality of collecting finds, we will start at the beginning, 541 million years ago.

Prehistoric South Carolina

The state’s fossil record began in the Paleozoic Era, nearly 541 million years ago. During the Paleozoic Era, the southwestern portion of the state was submerged under seawater. As a result, fossilized trilobites have been found from the Cambrian period.

The state would progressively be more engulfed by seawater 400 million years later in the Cretaceous Period of the Mesozoic era with nearly the entire state submerged. Many Late Cretaceous invertebrates are present in the fossil record. The PeeDee beds are known for housing mollusks and belemnites, an extinct group of cephalopods. The flora of the Late Cretaceous Carolinas included oaks, eucalyptuses, willows, sequoia, laurel, and magnolias. Many dinosaur carcasses were washed to sea during these times, so many fragments of bones and teeth have been found from these animals. The Donoho Creek Formation in the northeastern part of the state houses several Late Cretaceous dinosaur fossils.

Although Donoho is not as famous as the Hell Creek Formation in Montana, a site that has multiple iconic species such as Tyrannosaurus, Allosaurus, Triceratops, Apatosaurus, etc., South Carolina is well known for its collection of Columbian Mammoth fossils. Columbian Mammoths are a hybrid species of the legendary Wooly Mammoth and another lineage descended from steppe mammoths. The Columbian Mammoths died at the end of the Pleistocene era, about 11,500 years ago. The Columbian Mammoth is also codified at S.C. Code Ann. § 1-1-691 (2021) as the official state fossil of South Carolina.

Millennium later, in 1725, Mark Catesby, an English botanist, visited Stono, where enslaved people had uncovered several large fossil teeth while digging in a swamp. They unanimously identified the teeth as elephant molars. It was not until 1942 when George Gaylord Simpson, an American paleontologist, concluded that the enslaved people at Stono were the first to scientifically identify a North American vertebrate fossil.

Geological Survey
South Carolina Department of Natural Resources

South Carolina Hobby License

South Carolina is one of the only few states that require a “Hobby License” for collecting archaeological and paleontological finds in submerged sites. S.C. Code Ann. § 54-7-670 (2021). State jurisdiction begins at the mean low water mark and includes coastal waters and all inland navigable and formerly navigable waters such as rivers, creeks, and canals. Id. The State also has jurisdiction of offshore waters out to three statute miles. In-state applicants can pay $5.00 for a 6-month license or $18.00 for a 2-year license. The South Carolina Institute of Archelogy and Anthropology (SCIAA) has the right to revoke any license or deny renewal to any licensees if they violate § 54-7-670, the statute governing the issuing of Hobby Licenses.            

The commercial sale of any find recovered under the Hobby License program is prohibited by S.C. Code Ann. § 54-7-670 (2021). Instead, separate licenses can be acquired for commercial purposes. All finds must be removed by hand, and no more than ten artifacts may be recovered from a shipwreck site per day. SCIAA defines artifacts as “any object 50 years or older that was made, altered, or used by man. Bottles, ceramics, coins, tobacco pipes, artillery, and stone projectile points are all artifacts.”

South Carolina State Fossil, Columbian Mammoth
Source: National Park Service

Federal Laws Regarding Paleontology

Alongside the multiple state laws, there are certain congressional acts that have been passed to protect the paleontological community. South Carolina has multiple National landmarks, such as Congaree National Park and the Francis Marion National Forest. The following congressional acts govern these parks.

          In 1906, President Theodore Roosevelt signed the Antiquities Act, This act helps protect any historic or prehistoric ruin or monument, or any evacuated object from archaeological sites, situated on lands owned or controlled by the United States’ Government. The act authorizes the President to declare national monuments by public proclamation of landmarks, structures, and any other objects of prehistoric, historic, or scientific interest on federal lands. The act proclaimed several national monuments based upon significant paleontological resources (including famous fossil sites such as National Dinosaur Park and Waco Mammoth National Park). The act was the first to acknowledge and protect the paleontological community. 

In 1979, the Archaeological Resources Protection Act of 1979 (ARPA) was passed. The Antiquities Act proved ineffective protecting historical sites from criminal looting. Several improvements from the Antiquities Act were present in ARPA: the implementation of more law enforcement at archaeological sites, more defined descriptions of prohibited activities (including illegal trafficking, and interstate and international law in violation of state statutes), and an increase in punishment for those who violated the act. For a felony offense, first time offenders can be fined up to $20,000 and imprisoned for up to one year. Second time felony offenders can be fined up to $100,000 and imprisoned for up to five years.

In 2009, Congress passed the Paleontological Resources Preservation Act (PRPA). PRPA directs the Department of Agriculture and the Department of the Interior to manage and protect paleontological resources on Federal land using scientific principles and expertise. The agencies were directed to establish a program to increase public awareness about the significance of paleontological resources. In response to this, the National Park Service established National Fossil Day to address and to promote the scientific and educational values of fossils. Under the Act, paleontological resource crimes carry civil and criminal penalties. An example is imprisonment for no more than five years, and multiple offenses can double the sentence. PRPA also allows permits to be granted for the collection of paleontological resources.

Other State Laws Regarding Paleontology

For those interested in recreational paleontology, there are numerous clubs and museums that rely on archaeological and paleontological finds. Two local examples are the North Carolina Fossil Club and the Myrtle Beach Fossil Club. Before you join your state or city’s club and begin excavating finds, be sure to understand any local or state statutes governing the act.

Alongside other States having statutes designating state fossils, some have official state dinosaurs. Others have extra precautions to protect the value of excavated fossils. For example, Alabama’s state fossil statute designates Basilosaurus, a prehistoric whale, as the state fossil but also states “no fossil ‘Species Basilosaurus Cetoides’ shall be removed from the State of Alabama, in whole or in part, except by prior written approval of the Governor.” Ala. Code § 1-2-20 (1975). Other states prohibit collection of vertebrate fossils without an institutional permit, such as Utah and Florida. Florida Statue §1004.57 reads,

 “All vertebrate fossils found on lands owned or leased by the state belong to the state with title to the fossils vested in the Florida Museum of Natural History for the purposes of administration. Field collection of vertebrate fossils may be conducted under the authority of a permit issued by the Program of Vertebrate Paleontology in accordance with FS §1004.575 and the University of Florida Rule 6C1-7.541 F.A.C.”

Case law on paleontology is not extensive, but it has recently been touched in property law, which is something to keep in mind for those practicing in fossil-rich states such as Utah, Montana, or Colorado. In Murray v. BEJ Minerals, LLC, the Montana Supreme Court ruled that dinosaur fossils were not “minerals” for purpose of a mineral reservation in a mineral deed. Murray v. BEJ Mins., LLC, 2020 MT 131, 400 Mont. 135, 464 P.3d 80.

Conclusion

If you would like to read more on this subject, the Sol Blatt Jr. Law Library has two books that might interest you, Buried Treasure: Finders, Keepers, and the Law, by Cecil C. Kuhne and The National Historic Preservation Act, by editors Kimball M. Banks and Ann M. Scott. You can also check out a research libguide, Jurassic Law, for more information, links, and images.

So, who knows?

Maybe Paleontology Law will be a legitimate practice in the legal career or a subsection in 1L’s property books years from now. Perhaps Paleontology Law clubs and societies will begin arising across the country. Here, at Charleston School of Law, The Paleontology Law Coalition has been established for any student interested in this small niche of the law. Many people did not assume that paleontology, statutory law, and regulatory law were intertwined. However, those willing to practice property law, especially in states like Montana or Colorado, must not ignore the extensive law behind the study of prehistoric life and the excavation of fossils and artifacts. Those who do ignore it, might risk their practice facing extinction.

Additional Sources:

Florida Fossil Permit

Fossil Hunting in South Carolina

Laws on Fossil Hunting & Collecting Around the World: a Brief Overview

National Park Service: Fossils and Paleontology: Laws, Regulations, & Policies

South Carolina Institute for Archeology and Anthropology: Maritime Research and Hobby Licenses

Addison “Oz” Osborne

2L Senator, Student Bar Association
Research Fellow, Sol Blatt Jr. Law Library
President, Paleontology Law Coalition
Social Chair, Second Amendment Association
Charleston School of Law Class of 2023


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The Slayer Rule

In a common Halloween storyline, one family member kills another to inherit money, property, or something else of value. In some cases, the inheritance may not be the killer’s only motivation, but it stands as a windfall to the offender, nonetheless. Enter The Slayer Rule.

The Metropolitan Museum of Art, New York, United States, 2019. Photo on Unsplash.

            Codified at SC Code Ann. § 62-2-803, the Slayer Rule prohibits an individual who “feloniously and intentionally” kills the decedent from inheriting any benefits under the decedent’s will. The killing revokes the slayer’s nomination to receive property or to serve as the decedent’s personal representative. This means that a beneficiary cannot inherit any property or other benefits from a testator who the beneficiary intentionally killed. The law aims to prevent the slayer from receiving unfair and unjust enrichment for their misdeeds.

To apply the rule, there must be a final judgment by conviction, or a guilty plea establishing criminal accountability to find that the slayer feloniously and intentionally killed the decedent. In the absence of such final judgment or plea, the Court must determine whether the offender is guilty by a preponderance of the evidence standard. A person who merely had prior knowledge that a third person intended to kill the decedent cannot be considered to have feloniously killed the decedent. Prior knowledge, without more, is insufficient for application of the slayer rule.

            Typically, the killing must be: 1) intentional; 2) felonious; and 3) without legal justification. Murder and voluntary manslaughter tend to fulfill these requirements. On the other hand, negligent homicide and involuntary manslaughter claims typically fail to qualify due to lack of intent. The intent necessary to bar a slayer from inheriting from his victim must have been actual intent directed at the victim rather than at a third party alone. A showing of self-defense negates intent and provides legal justification for the act.

The four elements required to establish self-defense are: (1) the party must be without fault in bringing on the difficulty; (2) the party actually was, or reasonably believed, he was in imminent danger severe bodily harm; (3) the action taken in response to the danger was reasonable and; (4) the party had no probable means of avoiding the danger or the party was on his own premises and had no duty to retreat.

The slayer rule may also apply if the slayer kills any other beneficiary in the will who had to die before they could inherit. In the event the slayer does kill another beneficiary, a reviewing court will interpret the will as if the slayer predeceased their victim, thus causing any gifts to the slayer to lapse. The lapsed gifts then pass to the next heir.

In the event the victim dies intestate (without a will), the slayer rule will still apply. If, for example, the slayer kills another to gain access to an insurance payout or a bank account, the slayer would still be barred from receiving the inheritance under the rule. Instead, the gift would pass to the decedent’s heirs through the laws of intestacy.

Du Pain et Des Jeux bakery, Murat, France. Published on January 20, 2019. Photo by DDP on Unsplash.

As you can see, although Hollywood’s handling of slayer scenarios varies from movie to movie, in South Carolina it is well settled law that a slayer may not inherit from his own wrongdoing.

Interested in reading more on this topic? Check out Charleston School of Law Sol Blatt Jr., Law Library for more resources:

  • Mothers Who Kill Their Children – Cheryl Meyer; HV6542 .M48 2001
  • The Killers Among Us­ – Steven A. Egger, HV6515 .E34 2002
  • Kids Who Commit Adult Crimes – Ronald B. Flowers, HV9104 .F56 2002
  • Dr. Sam Sheppard on Trial – Jack P. DeSario & William D. Mason, KF224 .S47 D47 2003

G. Michael Glover

Sol Blatt, Jr. Law Library Research Fellow
Juris Doctor Candidate, 2022
Charleston School of Law

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International War Crime Trials: What is a War Crime?

Prior to World War I, war crimes were generally accepted as the horrors that came along with the nature of war. The concept of war crimes developed towards the end of the 19th century and beginning of the 20th century. The Hague Conventions were adopted in 1899 and 1907 to focus on the prohibition of warring parties to use certain means and methods of warfare. Since the Hague Conventions there have been other treaties that have been adopted, such as the four 1949 Geneva Conventions and two 1977 Additional Protocols.

The two 1977 Additional Protocols focus on the protection of person not taking part or no longer taking part in hostilities. Both Hague Law and Geneva Law focus on violations of war crimes. However, there are many documents that governs and identifies war crimes, rather than one single governing document. Although war crime violations can be found in both the Hague Law and Geneva law, other lists of war crimes can be found in international humanitarian law, intentional criminal law treaties, and international customary law. 1



Sinjar, Iraq, published on February 5, 2020.
Photo by Levi Meir Clancy on Unsplash.

So, what exactly is a war crime?

A war crime is:

  • acts against person or property,
  • violations of laws and customs applicable in international armed conflict,
  • acts committed against persons taking no active part in hostiles (including members of armed forces, who have laid down their arms),
  • internal disturbances and tensions (i.e., riots), and
  • Other serious violations of the laws and customs applicable in armed conflicts not of an international character. 2

War crimes can be broken down into two main elements: a contextual element and mental element. As to the contextual element it depends on where the conduct took place and whether it was associated with international armed conflict. As to the mental element, it considers intent and knowledge as to the act committed by the person, organization, or country. For example, genocide is considered by countries and courts to be the most severe war crime against humanity.

Genocide requires intent to destroy, either in whole or in part, a national, ethnic, racial, or religious group. 3

The most current genocide trial was against the former Yugoslavia for their crimes from 1992-1995 in Yugoslavia. The court held by seeking to eliminate a part of the Bosnian Muslims, they were essentially targeted for extinction because they stripped Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity. 4

However, on appeal the Court held that knowledge alone about acts that will take place cannot support an “inference of genocidal intent.” 5 The Court further found “genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established. 6 Ultimately the Court reversed on the issue of trial court’s finding that Defendant had possessed genocidal intent as a “principal perpetrator.” 7



World War I. Plant Gschwend, 1918.
Austrian National Library on Unsplash.

War crime violations of law of law or customs regarding war (unlike genocide which is a war crime of humanity) include:

  • Murder, ill treatment, or deportation for slave labor
  • Murder or ill treatment of prisoners of war or persons on the seas
  • Killing of hostages
  • Torture or inhuman treatment, including biological experiments
  • Plunder of public or private property
  • Purposeful destruction of cities, towns, or villages
  • Devastation not justified by military necessity

Overall, war crimes are reserved for serious offenses that occur outside the needs of war. War crimes, although not common, are one of the most important international regulations we currently have to defend against those who commit heinous acts.

Interested in reading more on this topic? Check out Charleston School of Law Sol Blatt Jr., Law Library for more resources:

  • William A. Schabas, An Introduction to the International Criminal Court (2d ed. 2004), Library of Congress call number: KZ6310 .S33 2004.
  • International Humanitarian Law (John Carey, et al. eds., 2004), Library of Congress call number KZ6471 .I56 2003.
  • Simon Chesterman et al., Law and Practice of the United Nations (2008), Library of Congress call number KZ4986 .C54 2008.

Shelby A. Sipe

Sol Blatt, Jr. Law Library Research Fellow
Editor-in-Chief, MALABU
VP of External Competitions, Trial Advocacy
Legal Research & Writing Fellow
Barbri Ambassador


Sources

  1. United Nations, War Crimes (2021), https://www.un.org/en/genocideprevention/war-crimes.shtml
  2. UN General Assembly, Rome Statute of the International Criminal Court (2010), https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf
  3. War Crimes, (2014), https://www.bbc.co.uk/ethics/war/overview/crimes_1.shtml
  4. Prosecutor v Krstić, Case No. IT-98-33-T (Int’l Crim. Trib. for the Former Yugoslavia Aug. 2, 2001). 
  5. Prosecutor v Krstić, Case No. IT-98-33-A (Int’l Crim. Trib. for the Former Yugoslavia April 19, 2004).
  6. Id. at 46.
  7. Id.

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A Third Bite at the Apple?

Very few private citizens get to have their case heard by the United States Supreme Court, but one in particular has been there twice. In 2005 the United States Supreme Court held in Kelo v. City of New London Conn., that eminent domain can be used to take property from one private owner and given to another private entity so long as the transfer promotes economic development. The Supreme Court also said that states could restrict the rule if they wanted. Shortly after this ruling on May 11, 2006, then Governor, Jeb Bush, did just that and signed a Florida state law restricting that type of eminent domain use in the state. One day prior to taking effect, however, the Riviera Beach city council had a closed-door meeting where it voted to move forward with a plan to redevelop approximately 800 acres of the city. This plan was set to condemn and take properties from private owners, who were unwilling to sell, and transfer to a private development company. The company would then construct private buildings and a yacht club, on the Riviera Beach marina.

Daytona Beach Marina, Photo by Eugene Chystiakov on Unsplash

This is where the unwavering Fane Lozman first appears. Mr. Lozman moved his floating home to the Florida marina in March 2006. He spoke out against the plan at public city council meetings and filed a complaint at some point after May 10,2006, alleging that the closed-door city council meeting violated Florida’s sunshine law. This case was ultimately dismissed, and the redevelopment plan was scrapped amid several other lawsuits and public outcry. However, this seems to be where the animosity between the Riviera Beach city council and Fane Lozman began and would ultimately lead to the Supreme Court twice.

In August 2006, three months after that first lawsuit, the city sent Lozman an eviction notice. The eviction notice stated he failed to muzzle his 10-pound chihuahua and he used unlicensed repair persons. At the state eviction hearing in March 2007, Lozman argued as his  defense, the city was improperly retaliating against him for his protected speech against the marina redevelopment project. After a three-day trial, the jury agreed and ruled in favor of Lozman. A few months later, in June 2007, the city council unanimously voted to institute new dockage rules for the marina. The rules included new insurance and registration requirements and required crafts to be operational and capable of vacating in case of an emergency. Lozman’s floating home would violate all of the new rules.

Although Lozman claims not to have received most of the notices, the city asserts it sent notifications of the new rules starting in July 2007 through March 2009. The notices stated if Lozman did not sign the new dockage agreement, he would be in violation and his permission to be in the marina would be revoked. The final notice gave a deadline of April 1, 2009. On April 20, 2009, after Lozman failed to agree to the new dockage rules, the city filed a claim in admiralty court in rem against Lozman’s floating home for trespass and past due dockage fees. That same day, a United States Marshal arrested the craft and had it towed to Miami. Lozman argued that his floating home was not a vessel for the purpose of federal admiralty jurisdiction. In November 2010, the United States District Court for the Southern District of Florida found for the city of Riviera Beach and awarded $3,053.26. The District Court in January 2010, entered final judgement against the vessel and ordered marshals to release and auction the floating home to pay the award. The City of Riviera Beach then purchased the floating home at auction and immediately destroyed it, at a cost to the city of $6,900.

 Lozman appealed the decision to the United States Supreme Court. Lozman v. Cty of Riviera Beach, became a landmark case in admiralty law and narrowed the definition of a vessel.

United States Supreme Court. Photo by Adam Szuscik on Unsplash

Lozman took a rare second bite at the Supreme Court apple with another claim stemming from his opposition to the city’s redevelopment plan. On November 15, 2006 during a city council meeting, Lozman was arrested when he failed to yield the podium after less than a minute of his speech, as he attempted to speak about public corruption. After transcripts of a closed-door city council meeting revealed some members were speculating about intimidating Lozman, he filed suit for retaliatory arrest based on his removal from and arrest at the November 2006 city council meeting. Lozman lost in the United States district court for the Southern District of Florida and in the 11th circuit court of appeals but prevailed again at the United States Supreme Court. In Lozman v. Cty of Riviera Beach, the majority opinion stated that probable cause for an arrest doesn’t automatically bar a plaintiffs first amendment retaliatory arrest claim. The case was remanded and Lozman settled with the City of Riviera Beach for $875,000.

Lozman came back to Riviera Beach with a new larger houseboat and a banner thanking the United States Supreme Court. He is currently in a new legal battle, now with the United States government over the environmental impacts of his houseboat where it is anchored in Signer Island, Riviera Beach, Florida. Only time will tell if this case gives Mr. Lozman a third bite at the Supreme Court apple.

Stacie Whitt

Sol Blatt, Jr. Law Library Research Fellow

Juris Doctor Candidate, May 2022

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Cognitive Effort: How to Study More Effectively and Efficiently

Dear Law Students,

Law School is hard. Everybody told you, but you did not listen. A few weeks into the semester and you are already wondering if you can complete this task. Can I ever truly learn this intense topic? Will the homework ever stop? Are others having the same struggles I am?

The answer to these questions is simple. Yes. You are on one of the most challenging yet rewarding quests you will ever face but will make it through.

“How?” you might ask. Well, it is simple. With every achievement, others have come before you. From their lessons, we can learn how to better prepare ourselves for the challenges to come. This blog post will teach you some practices that will take your study habits to the next level.

How to Study.

Cognitive effort is the key to your study success. A study conducted at the University of California-Berkley concluded that more cognitive effort leads to better subject retention. Under “The Generation Effect and Memory” study, one group studied for a test with only questions and answers. A second group studied for the same test with the same questions but researched their answers. After the researchers administered the exam, they found the second group had the higher score. The researchers determined that cognitive effort leads to strengthened neural connections that lead to better retention of knowledge.

Make it Stick: The Science of Successful Learning, by Peter C. Brown and How to Become a Straight-A Student, by Cal Newport recommend three study strategies to increase cognitive effort: active recall, spaced repetition, and interleaving. Big words, right? Please do not shy away from these strategies because they are pretty simple to understand and apply to your study habits. Let me show you.

Active Recall (a.k.a Practice Quizzing)

A study, Test-Enhanced Learning, by Roediger and Karpicke took three groups. The first group was allowed to read their class lecture notes four times. The second group read their class lecture notes three times. Then they took one practice exam. The third group read their class lecture notes only once. Then they were able to take three practice exams. Then, all three groups took the same exam. The third group far outperformed the first and second groups.

The third group performed better because they were forcing their brains to retrieve and use the information. The extra quizzing helped improve retention, memorization, and overall comprehension of the topics. Roediger proved the more cognitive effort placed in retrieving information, the more likely we are to retain and better use that information.

Adding active recall to your study habits is relatively easy. All you have to do is find quizzes and begin studying. How might you get quizzes and study materials? You can ask your friends and upper-level students if they have any practice exams your professor gave in previous years. The library is also an underutilized source for practice exams and testing materials. In addition to written sources in the library, one may find practice problems and study aids in the electronic databases provided by the Sol Blatt Library at the Charleston School of Law. Some commonly used study aids are Wolters Kluwer and West Academic. If all else fails, go to your professor and ask them if they have any practice quiz material or if they could direct you to where you can obtain some. The worst that they could say is, “no.”

Spaced Repetition (a.k.a. STOP CRAMMING)

I guarantee you will hear about Herman Ebbinghaus’ “Forgetting Curve” at some point during your law school years. Ebbinghaus conducted a study that showed over time, information learned begins to decay. Meaning, over time, you begin to forget what you learned. Ebbinghaus’ analysis showed that one should continually study the material at peak moments of decay, ideally when the decay reaches the 20% mark. When one revisits the specific information at this peak moment, it requires significant cognitive effort. This cognitive effort helps enforce mental retention of the data to better recall the information in the future.

Now, you may be wondering, “how do I know that I am at the 20% decay mark?” Well, to know that, you would need to perform years of study and practice, which you do not have time for while you are in law school. Since you do not have time to calculate your cognitive decay, here are two easy ways to implement this strategy.

The first of these techniques is the “Leitner System.” To use the Leitner System, you will need:

  • Five boxes big enough to hold a deck of flashcards, like a shoebox,
  • Flashcards filled out with the information you would like to retain,
  • A Pen, and
  • Discipline

You will need to label every box uniquely. Label your first box, “Every Day.” Then, mark your second box, “Every Other Day.” Specify your third box as “Every Week.” Label your fourth box, “Every Other Week.” And finally, label your last box “Retire.” You will then place all of your flashcards in box one and begin studying them. Every time that you get a flashcard right, then you will move it to the next box. Every time you get a flashcard wrong, then move it back to the first box. Alternatively, you can move the card back only one box if you believe such punishment is too severe. Space out your study based on the labels on your box. Once you have “retired” all of your cards, then you have mastered the topic.

The second, and less frictionless, of these techniques is using a Spaced Repetition Software (also known as an SRS), which automatically implements an algorithm to space the cards. There are multiple reputable programs that you can use, such as Anki, Quizlet, Remnote, and SuperMemo. These programs are great because you can import your notes directly into the system, eliminating the time needed to make flashcards. Additionally, many of these programs have phone applications so you can study better on the go.

Pro-Tip: If you want to save time making flashcards and you still prefer physical cards, then utilize the Sol Blatt Library’s collection of “Law in Flash” by Emmanuel.

Interleaving (a.k.a. Mix It Up!)

A study in Make It Stick: The Science of Successful Learning, by Peter Brown tasks two groups with throwing a ball into a basket four feet away. Before the task, the first group practiced with a basket that was four feet away. The second group practiced with two baskets, one was three feet away, and the other was five feet away. After twelve weeks of practice, they measured both groups’ ability to make the ball in the four-foot basket, with the second group having more success. The study concluded mixing up practice habits helps one better understand the task at hand and creates better connections between distinct ideas. Make It Stick is available from the Sol Blatt, Jr. Law Library.

In How to Become a Straight-A Student, by Cal Newport, he also champions interleaving. He suggests a practical way to accomplish such a task through the “Fifty-Minute Method.” To implement the “Fifty-Minute Method,” one must study for 50 minutes on one topic. Then, the individual will take a 10-minute mental break. After the 10-minute break is up, the individual should start another 50-minute session on the same subject but a different topic within that subject. The “Fifty-Minute Method” helps one connect the individual topics and better understand the subject because it demands the cognitive effort of the studier. Look into Pomodoro timers and techniques to better diversify your study.

You Can Do It.

We get it. Law School is hard. But with any challenge, there is also a reward. Keep your eyes on your goals and keep pushing forward. You can conquer this task; it might just take a little “cognitive effort.”

Marshall D. Walls

Sol Blatt, Jr. Law Library Research Fellow

Juris Doctor Candidate, 2022

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The Pros Behind Procertas

Many 1Ls are familiar with the software-training program Procertas. Many students may find the exercises in the “Word Contract” tedious as it is required homework for all LRAW classes. However, the exercises are helpful as they allow users to explore obscure features within these programs. For 1Ls, this is useful for overcoming certain formatting issues within their trial and appellate memos. The program also helps those who might think they are inept with other apps, like PowerPoint or Excel.

  However, the story behind Procertas might interest a few. Founded in 2015 by Joseph Colucci and Casey Flaherty, the program was originally named “Cost Control,” however, they decided the name had a negative connotation. They later changed the name to Procertas: an amalgamation of “professional” and “certification.”

The two met when Joseph sold legal technology services to Casey. Together, they formed a friendship and realized there was a need for technology training within in the legal field. They acknowledged that many lawyers do not receive technology training in law school, they started the program to help instruct those in the legal field to become competent in software.

They admitted that selling this idea to firms was difficult as they stated many lawyers are confident in their knowledge of the apps and their training. In an interview, Joseph claimed that younger lawyers who are naïve in their abilities create this “myth of the digital native.” Even Joseph admitted he was a part of this myth of being technologically savvy but learned several new skills while starting Procertas. Both hope that students in law school receive the training necessary to be competent in practice.

          One interesting tidbit of information is that Joseph is based in Mount Pleasant, South Carolina, minutes away from our school. I was a part of this myth of the digital native that Joseph discusses as I was overly confident in my abilities in Word and Excel; however, I’m glad I was able to see the light and use Procertas to widen my skills. I highly recommend the students who moaned and groaned when given a Procertas assignment reflect on the program and see what they gained from the experience.

Addison “Oz” Osborne

Sol Blatt, Jr. Law Library Research Fellow

Charleston School of Law Class of 2023

Posted in Electronic legal database, Law Practice Software, Library service | Tagged | Leave a comment