USCTIMES
AUGUST 2017 / VOL. 28, NO.6
A LEGAL ISSUE
Honk If You're Not Driving
Name That Room
Law of the Land
Assistant professor Bryant Walker Smith talks law, society and self-driving cars, page 4
New law school building honors giants of S.C. legal history while looking to the future, page 6
Student interest in environmental law transcends politics, takes root in the classroom, page 14
USC TIMES / STAFF
FROM THE EDITOR USC Times is published 10 times a year for the faculty and staff of the University of South Carolina by the Office of Communications & Public Affairs, Wes Hickman, director. Managing Editor Craig Brandhorst Creative Director Bob Wertz
May It Please the Court
Designer Brinnan Wimberly Contributors Chris Horn Page Ivey Megan Sexton Melinda Waldrop Photographer Kim Truett Printer USC Printing Services Campus correspondents James Raby, Aiken Kerry Jarvis, Beaufort Jeanne Petrizzo, Greenville Shana Dry, Lancaster Jane Brewer, Salkehatchie Misty Hatfield, Sumter Annie Smith, Union Tammy Whaley, Upstate Jay Darby, Palmetto College Submissions Did you know you can submit ideas for future issues of USC Times? Share your story by emailing or calling Craig Brandhorst at craigb1@mailbox.sc.edu, 803-777-3681.
The University of South Carolina School of Law marks its 150th anniversary this year. To celebrate, USC has constructed a new 187,500 square foot building on the northeast edge of campus… “Objection: Your honor, the editor is misstating the evidence. The new law school, located at 1525 Senate Street, was not built to celebrate the law school’s 150th anniversary but, rather, to replace the former law school building, located at 701 S. Main Street, with a more modern facility that also reflects the state’s rich legal history. The anniversary, while highly significant, is coincidental.” “Overruled: Even if the anniversary and the new building are unrelated, it’s still pretty cool. Proceed.” Look, we’re not lawyers here at USC Times, so if you object to our sloppy legalese, we won’t object. We’re simply building a case for this issue, which requires us to look backward and forward at the same time — and meanwhile stay within the law. And we think we’ve done a solid job, this being our first time in court and all. Exhibit A: “Honk If You’re Not Driving,” page 4. Our conversation with assistant professor of law Bryant Walker Smith on the intersection of law, society and emerging technologies should spark some thought. Smith specializes in tort law and product liability, but his engineering background and interest in transportation have made him a leading expert on the law and self-driving cars. Exhibit B: “Name that Room,” page 6. The new law school was constructed with the student in mind, as evidenced by the tech-ready classroom design. But the stately new building is also a monument to the school’s key role in South Carolina's legal history. Witness the courtrooms, the reading room, the student services suite — and the celebrated alumni for whom each space is named. Exhibits C and D: “Chaos & Clarity,” page 10; “Law of the Land,” page 14. Health care law is as complicated as it is important. Same goes for environmental law, which takes on increasing importance in the era of climate change. In either area, USC law faculty are on the case. Exhibit E: “Advice and Counsel,” page 12. As general counsel for the university, Terry Parham is responsible for all institutional legal advice, including drafting contracts, interpreting federal and state laws and regulations, and reviewing university policy development. He also has some free legal advice for faculty and staff. Exhibit F: “Clinical Approach,” page 16. We don’t always tie “Breakthrough Breakout” to our monthly theme, but remember, we mean to stay within the law this month. With that in mind, we’ve highlighted two new law school clinics — one designed to improve health outcomes for pediatric patients, the other to address domestic violence. A brand-new building, 150 years of history — there’s plenty happening at the law school these days, and the evidence of success is overwhelming.
The University of South Carolina does not discriminate in educational or employment opportunities or decisions for qualified persons on the basis of race, color, religion, sex, national origin, age, disability, genetics, sexual orientation or veteran status.
We rest our case,
CRAIG BRANDHORST MANAGING EDITOR ON THE COVER: USC’s new law school building at 1525 Senate Street looked
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TIMES FIVE
Buying Time Planning for retirement can include purchasing service in the state retirement plan. The Division of Human Resources is offering a seminar on the South Carolina Deferred Compensation program Aug. 29, noon-1:30 p.m., at 1600 Hampton St., Suite 101. To register, visit the Human Resources website as sc.edu/hr and click on “training and professional development.”
A CASE for Times We’re not trying to toot our own horn, but — OK, who are we kidding? That’s exactly what we’re doing. The Council for the Advancement and Support of Education (CASE) has awarded USC Times a 2017 Circle of Excellence Silver Award in the Internal Audience Publications (Print) Category, and we’re pretty pumped about it. Out of more than 3,300 entries internationally, only 125 were recognized with silver awards, which means it must be fit to print.
WE ARE FAMILY The Family Fund, the annual faculty and staff campaign, will kick off the 2017-18 fundraising year on Sept. 12. Since its inception nearly 40 years ago, the Family Fund has generated more than $50 million for Carolina. Gifts through the Family Fund support groundbreaking research, strengthen programs and initiatives, recruit and develop world-class faculty and fund scholarships. The easiest way to give is to sign up for a payroll deduction, but you also can donate by check or credit card. All levels of giving are welcome. To learn more, visit giving.sc.edu, click on the “how to give tab” and the annual giving link.
MOVING, MOVING, MOVE-IN
The eclipse changes almost everything — even Move-In. This year, in deference to impending darkness and a surge in astronomical tourism, the university will welcome students to campus on Aug. 16 and 22. One thing unaffected by the blackout? Our renowned hospitality. Columbia campus faculty and staff can still sign up to help with move in. Help will be needed between 8 a.m. and 4 p.m. on both days. Visit sc.edu/success/ movincrew.html to register. For more information, email samovein@mailbox.sc.edu.
DARK DAY AFTERNOON
At 2:41 p.m. on Aug. 21, USC will be one of the best places to watch two minutes and 36 seconds of sunless daytime courtesy of a total eclipse of the sun. The Department of Physics and Astronomy is operating solar telescopes and facilitating conversation at 10 viewing stations across campus. To view the eclipse safely you’ll need a pair of safety glasses, which will be available at each station. The event begins at 1:13 p.m. with a partial eclipse that will turn into a total eclipse at 2:41. The darkness will last about two and a half minutes. Full daylight will return around 4 p.m. Visit sc.edu/eclipse for a complete list of events.
4 USCTIMES / AUGUST 2017
HONK
IF YOU’RE NOT DRIVING As an internationally recognized expert on the law of self-driving vehicles, Bryant Walker Smith is frequently asked to weigh in on legal issues related to automated driving. But the USC law professor’s expertise isn’t limited to cars and the people not driving them. His insights into tort law and product liability, and his broader interest in what he terms “the law of the newly possible,” are helping prepare USC law students for an evolving legal landscape. USC Times sat down with Smith to discuss the nexus of law, society and emerging technologies — and how human factors fit into a complex equation. INTERVIEW BY CRAIG BRANDHORST
BROADLY SPEAKING, WHAT AREAS OF LAW AND TECHNOLOGY ARE ON YOUR RADAR TODAY?
Everyone is thinking about data and automation, and how the two combine. Specifically, I’m thinking about questions of trust and trustworthiness — earning trust and evaluating trustworthiness. I used to think that simply providing information was sufficient. That is, if a government agency released data, or a court released a judgement, or a company released information about the performance of a product, that was the extent of the
obligation, and that in itself was sufficient for whatever public policy goals exist. I’ve realized that is not enough. Everybody needs to think about the way that information is used and received — and we need to understand that information as part of a narrative. WHAT SPECIFIC CHALLENGES DOES YOUR INTERDISCIPLINARY APPROACH PRESENT?
There's a field of engineering called human factors that is concerned with how humans actually use the things that engineers design.
So you’ve made toaster, but are people going to electrocute themselves with it? You’ve made a road, but are people going to feel so comfortable on it that they drive too fast? For years, human factors experts have warned us, “You need to see the human in the system, you need to think about how what you do is going to work in the real world…” So much of the dialogue between engineering and law, between technology and society, is incremental. We don’t have a chance to step back and say, “Well, what should be?” rather
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than just, “What is?” It’s useful to set out benchmarks, to say, “This is what we want the world to look like,” and then to evaluate those benchmarks in a year, five years, ten years, and say either, “Our vision of the world has changed, and that’s OK,” or, “We’ve gone astray.” THE HUMAN FACTOR IS A BIG VARIABLE, THOUGH.
It is, and it’s one that tort law deals with all the time — think about consumer misuse and abuse, warnings and instructions — but human factors have not been fully appreciated in either the engineering or the judicial realms. I think we’re coming to a greater appreciation for the point these specialists have been making for a half century — that the same expertise needs to be applied in the domain of data and information. BUT HUMANS ARE NOT ALL THE SAME. HOW DO YOU ADJUST FOR SUCH A SQUISHY VARIABLE?
Everyone from designers to regulators is puzzling over how to treat non-deterministic systems, when you have machines where you’re not sure what the outputs will be, even when you know the input. With most machines, if you know the inputs, you know the outputs. Press on the gas, and you know how fast you’re going to go. Increasingly complex systems are effectively non-deterministic: there are so many inputs that you can’t understand them, or the interaction between inputs within the system can’t be fully understood. So you say, “How do we possibly regulate these non-deterministic systems?” Well, the law has been doing that for millennia. The human is the ultimate non-deterministic system — and that may actually offer a useful analogy for how we regulate these new, complex non-human systems. This is where law and engineering so desperately need the insights of
psychology and neurology and social science. This is one reason why the humanities are so important. We should really be pulling from those domains that don’t have perfect answers but probably have better answers. YOU’RE WELL KNOWN FOR YOUR WORK RELATING TO LAW AND SELF-DRIVING CARS. WE’VE ALREADY STARTED DOWN THAT ROAD — WE HAVE CARS THAT HELP US PARK, FOR EXAMPLE. AT WHAT POINT DO WE EVEN CALL THEM SELF-DRIVING?
Thank you for that question. People talk about the self-driving car as a technology, singular, but, really, it’s a diverse set of technologies, applications of those technologies and business cases for those applications When I dove deep into automated driving in 2011, I joined the Society of Automotive and Aerospace Engineers and became very involved in their efforts to define levels of automation — six years later, those efforts still continue. But as a technical matter, not a legal matter, once you can take your eyes off the road, we say the system is highly automated. People imagine our cars driving us anywhere, everywhere, while we're asleep in the back. That’s fully automated driving, and that’s a ways off, but there is a lot of lower-hanging fruit. There are three paths toward this ideal of fully automated driving, The first is increasing driver assistance. Those systems will do more and more of the real-time driving tasks. The human can take their hands of the wheel, and their feet off the pedal, and then both hands off the wheel — and then maybe they can take their eyes off for a little bit. That takes us to the mushy middle of automation that engineers and lawyers have to deal with — imperfect people misusing these systems in all kinds of ways. Another path is increasing safety systems, introducing intervention systems that won’t act until a crash is imminent. These are going to get more sophisticated and
start intervening earlier, so people might still think they’re driving, but actually they won’t be because these systems will be introduced so often. The third path is truly driverless sytems that operate under limited conditions in certain communities and then over time expand the operating domain. WHAT FASCINATES YOU ABOUT THE LAW AS IT RELATES TO EMERGING TECHNOLOGIES?
It’s an exciting way to examine all the ways that life has changed and is changing, and to be a part of that excitement. Think about all of the innovation, for good and bad, and all of the people who have had the opportunity to shepherd those or navigate those. That’s a privilege. I’m both intellectually fascinated by how that happens, and also, practically, as a lawyer and an engineer, very interested in being part of that process. Also, I’ve always been interested in complex relationships and understanding systems, recognizing that everything is ultimately part of one system, even though we draw artificial boundaries. New technologies give me a chance to see those relationships, the way that new ones emerge, or are strengthened, or are challenged. T
FRONTSEAT DRIVER Bryant Walker Smith is an assistant professor in the School of Law at the University of South Carolina. He is also an affiliate scholar at the Center for Internet and Society at Stanford Law School and a member of the U.S. Department of Transportation's Advisory Committee on Automation in Transportation. Links to his publications are available at newlypossible.org.
6 USCTIMES / AUGUST 2017
Name That Room USC’S NEW LAW SCHOOL HIGHLIGHTS HISTORY AT EVERY TURN
Walk through USC’s new law school and two things are readily apparent in the design — a sense of history and eye toward the future. The courtyard incorporates granite blocks reclaimed from the Central Correctional Institute, the state's former maximum-security penitentiary; the classrooms are equipped with state-of-the art media capabilities. An old-school reading room designed for quiet study complements a 24-hour student commons area named for South Carolina’s largest law firm, Nelson Mullins Riley & Scarborough. And then, of course, there are the two courtrooms, named for two towering figures from South Carolina’s rich legal history. “I tell people all the time, ‘We don’t want this to be a building that could just as easily be at the University of Iowa or someplace else’,” says Robert Wilcox, ’81 law, dean of the School of Law. “This is the University of South Carolina. We’re proud of the historical ties to the profession in the state, and I’ve noticed a lot of people walking through the building are very taken by that — this is a place that is uniquely ours.”
Stephen G. Morrison Student Services Suite The new building’s student services suite provides a convenient onestop shop for student support and includes the offices of student affairs, admissions, student services, career services and the registrar. The suite honors the late Stephen G. Morrison, ’75, a partner at Nelson Mullins Riley & Scarborough until his death in 2013. As lead counsel for clients in more than 20 states, Morrison tried more
equity in education funding for some of South Carolina’s poorest children. Morrison also taught as an adjunct law professor at the university for more than 30 years, beginning in 1982. “I have dealt with wonderfully talented lawyers all over this country for 47 years, but, in my opinion, Steve was by far the best lawyer I ever met,” says Carl Epps, ’66, ’70 law, an attorney at Nelson Mullins who invited
than 240 cases to jury verdict and argued more than 60 appeals in the
Morrison to join him on the Abbeville case. “He had remarkable rhetorical
highest courts, including the U.S. Supreme Court. He mostly represented
skills and wonderful people skills. He had extremely high intellectual skills.
corporations, but also did pro bono work and was co-lead counsel in the
He was just a uniquely talented advocate.”
famous “Abbeville et al v. State of South Carolina,” working to achieve
But it was another set of qualities that drove Morrison to get involved in the Abbeville case, according to Epps. “Steve had a tremendous heart. He had a great sense of the lawyer’s duty to represent people from all walks of life, and most particularly, people who by themselves have no voice,” he says. “He was devoted to trying to represent the poor and the downtrodden.” According to Wilcox, Morrison’s ability to balance the business end of law and public service is also something for law students to emulate. “Steve showed that these were not exclusive,” he says. “That’s an important message for the profession. Certainly, lawyers are in it to make a living, but they should also be in it to do good. If you view it as all one or the other, you’ll either go out of business or you’ll lose sight of why you went to law school in the first place.”
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Photo Credit: Rick Smoak
“This room conveys an important message to students, which is, ‘You’re entering a different kind of profession,’” says Wilcox. “‘All the dignity represented by this room — that’s what you need to have as you enter this profession.’” And the fact that the courtroom is named after Karen J. Williams, the first woman chief judge of the U.S. Fourth Circuit Court of Appeals, only reaffirms that message, according to Wilcox. “In addition to being smart and a trailblazer, when I think of Karen, and when I think of the courtroom that’s now named in her honor, I think of dignity,” says Wilcox. “You would never meet a more dignified person. She just represented what a lawyer ought to be.” Photo Credit: Rick Smoak
It’s a sentiment echoed by many in the S.C. legal community, among them former Chief Justice of the Supreme Court of South Carolina Jean Toal, ’68 law, who mentored Williams during and after law school.
Karen J. Williams Courtroom One of the more dramatic features of the new law school building, the
In fact, Toal was one of several people who would eventually encourage her to consider the judiciary. “She certainly had people who wondered if she was up to the chal-
Karen J. Williams Courtroom can seat 300 and is suitable for hosting actual
lenge,” says Toal. “These were people who didn’t know her very well.
jury trials and appellate arguments, moot court and mock trial competi-
She was more than up to the challenge.”
tions. The space, which features a heart pine judge’s bench originally used
Ultimately, Williams was appointed to the Fourth Circuit in 1992 and
in a Statehouse courtroom in the 1870s alongside modern media technolo-
served as chief judge from 2007 until her retirement in 2009. Williams’
gy, will also be used as a classroom and auditorium.
name was also floated as a potential nominee for the U.S. Supreme Court
“In the old law school, we could bring a court in for certain purposes, but they were on a stage in an auditorium. It felt like a makeshift court, like
during the administration of George W. Bush. “Karen was just such a beacon of encouragement to so many women.
pretend. This is going to be the real thing,” says Wilcox. “And while these
At the same time, her legacy is so much broader than that,” says Toal.
days, quite frankly, a lot of lawyers won’t actually see that much time inside
“She was a brilliant jurist who went to the very top of the legal profession
a courtroom, there is still something wonderfully important about that.”
in this country, but her head was not turned by her great success.”
Among other things, says Wilcox, the room helps set the tone and establish certain expectations for students hoping to pursue a career in law.
Williams died from early-onset Alzheimer’s in 2013. Her portrait now hangs on the wall to the right of the bench in the courtroom that bears her name.
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Coleman Karesh Reading Room The new law library doesn’t have a namesake yet, but the reading room certainly does. The Coleman Karesh Reading Room honors one of the most esteemed professors in the law school’s 150-year history. Karesh, who earned undergraduate and law degrees from Carolina in 1923 and 1925, respectively, practiced law in Columbia for 12 years before joining the law faculty in 1937. Over the next 35 years he established himself as a nationally regarded expert on wills, trusts and estates. Upon his retirement in 1972, the library in the then-new School of Law building on South Main Street was named for him. “No other law professor had anything named for him at the time,” says Wilcox. “We felt it was important to keep that name. The reading room in the library is perhaps, along with the courtrooms, the most significant public room in the building.” The airy two-story space is appointed with long wooden tables and intended for quiet study. Twelve portraits of prominent figures from South Carolina’s legal history, including Karesh, hang on the south wall (see End Notes). “If you talk to lawyers who went to law school here in the ’50s and ’60s, and they say, ‘I went to school in Petigru (the law school’s home before it moved to South Main),’ what they really mean is, ‘I studied under people like Coleman Karesh.’ He was one of several faculty at the time who were so well respected in their fields that the courts would cite to them for authority.” Wilcox isn’t exaggerating. “Even when I got to law school, after he retired, law students made sure they had a copy of his ‘skinny’ because there was nothing more valuable,” he says. “I still have them on the shelf in my office, ‘The Karesh Notes.’” Indeed, just mentioning “The Karesh Notes” gets an enthusiastic response from many School of Law alumni, including former Chief Justice of the Supreme Court of South Carolina Jean Toal. “Oh yes, that was the Bible — still is!” says Toal, who studied under Karesh. “I can tell you, in the 27 years I was on the S.C. Supreme Court I had many matters come before the court that involved his area of specialty. Coleman Karesh’s notes were the first stop Photo Credit: Rick Smoak
I made in research, always.”
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G. Ross Anderson, Jr. Historic Courtroom Compared to the spacious grandeur of the Karen J. Williams Courtroom,
in Anderson County. In 1980, President Jimmy Carter appointed him to the
the G. Ross Anderson, Jr. Historic Courtroom feels intimate. Constructed
U.S. District Court for the District of South Carolina, where he presided over
from the original woodwork and marble from a former Richland County
federal cases until his retirement in 2016.
courthouse built in 1935, but with modern technology incorporated, it is designed to introduce law students to the physical atmosphere of law. “When you walk in you feel like you have been transported into a courthouse. It does not feel like a classroom. You can forget that you are in a law school,” says Wilcox. The space is also a nod to S.C.’s rich legal history, though incorporating
“Judge Anderson tried just a ton of cases as a trial lawyer, and when he got on the bench he was just as good of a trial judge,” says Reid Sherard, ’00, ’04 law, a Greenville attorney with Nelson Mullins who clerked for Anderson after law school. Sherard describes Anderson as a man of strong political opinions who nonetheless inspired respect among adversaries. “He is unabashedly a
a reconstructed South Carolina courthouse into a state-of-the-art building
Democrat, but even his critics would say he's smart as hell. You can always
was more than an exercise in nostalgia.
respect the ability of the person you’re up against, no matter what you
“When you’re doing a moot court argument, or a mock trial argument, it works best when you fully get into the role as if it were a real case,” says Wilcox. “You want to argue it just as if your client were sitting in the
think about their politics,” Sherard says. “He would make it fair, but he would make it very difficult for you to claim he was wrong.” Naming the new courtroom in Anderson’s honor is a fitting tribute, ac-
row behind you. It will be almost impossible to miss that experience in
cording to Sherard, who also conducted an in-depth oral history interview
this courtroom.”
with Anderson for the S.C. Bar Foundation.
Of course, the biggest presence in the room may not be the imaginary
“He really believes that the trial work is where justice is meted out,”
client but the courtroom’s namesake — Anderson, S.C., native George Ross
Sherard says. “Judge Anderson did not decide any substantive motion
Anderson Jr., ’54 law.
without a hearing. He wanted the lawyer to have to come in and make the
Anderson, who worked for U.S. Senator Olin D. Johnston while in college and then served in the S.C. House of Representatives from 1955 to 1956, achieved prominence in the legal community, first, as a plaintiff’s attorney
Photo Credit: Rick Smoak
argument. He wanted to hear it. He didn’t want to just read it. He felt like that was necessary in terms of making a decision.”
T
10 USCTIMES / AUGUST 2017
CHAOS &
Clarity
As uncertainty continues to swirl around the the Affordable Health Care Act, the clarity and expertise provided by law faculty is more crucial than ever. BY MELINDA WALDROP
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F
or University of South Carolina law professors who specialize in health-related areas, there’s no time like the present. And teaching opportunities have rarely been more self-evident, say two faculty members whose scholarship intersects with evolving health care legislation. “Students look for firm answers in the law, and sometimes they’re there, but a lot of times they’re not,” says Emily Suski, an assistant professor in the USC School of Law Clinical Legal Education department. “They have to learn to work within uncertainty, and that can be very uncomfortable, but it’s unavoidable. There’s uncertainty about what the law is going to be when it’s changed, and we’re waiting to see.” While it’s true that no one knows exactly what any new health care legislation would look like, Jacqueline Fox knew the picture would change after the 2016 election. “The different political parties are pretty clear in their platforms,” says Fox, an associate professor of law who teaches health care law and policy, public health law, bioethics and torts. “The day after the presidential election, I went into my health law class and scrapped the lecture and scrapped the rest of the curriculum for the semester and said, ‘OK, we’ve got to do different things now because this is what’s about to happen.’ ” Fox has written extensively on the intricacies of the Medicare and Medicaid law and believes that Medicaid, in particular, could see vast changes. With cuts looming, Fox worries about an elderly population that could be forced into homelessness as state or federal governments can no longer fund nursing homes. “It worries me,” Fox says. “I don’t think the government should yank the rug out from under people unless they have a plan in place to help people deal with the changes. Right now, it feels like there’s this really big gorilla that is running through everything.” Suski, who has spent most of her career working with low-income clients and on so-
cial justice issues, also worries about the effect of Medicaid cuts on a vulnerable population. Still, like Fox, she sees teaching opportunities in the question marks. “On a policy level, I think it’s important for students to understand that when you start to cut services, sometimes those services are cut from the people who need them the most – probably because they have the least voice,” Suski says. “To see that happen in real life and in real time is an important learning experience for the students. To the extent that they find that troublesome, how can they, in big and small ways, use their law degrees to effect change?” Training students to stay on top of and guide clients through an ever-changing health landscape – one that is in great flux right now – highlights the law school’s value and mission, both professors say. “When there is chaos, there is work,” Fox says. “When things seem scary or weird, you have to remember that to be the person who just came out of school and is most up-todate on the changes, who understands ethics and policy so that you can predict what’s going to happen – it makes you powerful and wanted. “Sometimes it’s hard, because you’re dealing with things that have serious consequences for real people. But if you want to do meaningful work and you’ve got the toughness to handle bad things happening, it’s a great job.” Suski takes an added satisfaction in equipping students to work with clients who are often marginalized by the agencies tasked with helping them. “My clients have always been people who go through various systems – government systems, social service system – and aren’t treated with a whole lot of dignity a lot of times,” she says. “To have them walk into a big, new, beautiful law school and be treated with dignity – that’s rewarding to me.” T
“I don’t think the government should yank the rug out from under people unless they have a plan in place to help people deal with the changes." - Jacqueline Fox
“On a policy level, I think it’s important for students to understand that when you start to cut services, sometimes those services are cut from the people who need them the most." - Emily Suski
12 USCTIMES / AUGUST 2017
Advice & counsel
INTERVIEW BY CHRIS HORN
As head of USC’s Office of General Counsel, Terry Parham wants you to stay out of hot water — legally speaking. In his 29 years at the university, Parham has seen individuals make missteps that, in many cases, could easily have been avoided. Here is Parham’s “legal brief” on how faculty and staff members can steer clear of four potential pitfalls.
You’ve got mail When the academic year is in full swing, the university process-
with responses can be a bad idea. And for my purposes, I wish
es about 1.2 million emails daily. Emails on the university’s email
there was no “reply all” option on email. It causes so many more
system are considered public documents. It’s not unusual for this
problems than benefits. Avoid it unless it’s absolutely necessary.
office to receive a Freedom of Information Act request a couple of
Never use the university’s email system for personal emails. We
times a month seeking emails for one reason or another because
all have friends who want to send us jokes and little stories, and
they are a rich source of information about individuals.
that’s fine. But remember that it’s probably not funny to everybody.
An email is permanent. Just because you hit delete doesn’t mean
If your email becomes public, and there’s always that possibility, it
it disappears; it can be retrieved. When people are seeking emails
can be embarrassing that you’re receiving and maybe responding
about a topic or individual, they ask the university to go back and
to something that was intended to be humorous but perhaps is
forensically retrieve as many emails as possible, and that can be
not. Use the newspaper test. If your email appeared on the front
done — we have to produce them. So you have to assume that an
page of the newspaper, would you be OK about that? So, tell your
email is a permanent document just like a piece of paper.
friends to send personal emails to your home email account.
The general advice I give is, don’t ever send an email if you’re upset or angry. I also tell people to slow down. Being too quick
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Employment landmines From my experience, employment decisions can be the most difficult any manager or supervisor faces because most people don’t or can’t engage in direct confrontation. That generally is what a personnel matter is: confronting someone with a deficiency in their performance. I’ve known of judges who could sentence a person to death because the law required them to, but they couldn’t discipline a secretary because it required them, one on one, to discipline someone they see on a daily basis. Don’t make a major personnel decision without consultation.
sity vendor. A vendor may have a fabulous new software product that would make your university job much easier, but you shouldn’t allow the vendor to buy you lunch while you discuss the product. You can go to lunch with the vendor and listen to their pitch, but you should pay your own way. Otherwise, you’re creating the appearance that the vendor is gaining an advantage when you make your decision, and a competitor may contest your decision.
Speaking up Title IX is the hottest topic on any campus in the country, but it is
Talk to human resources, talk to your supervisor or the legal office.
still misunderstood. When Title IX was adopted in 1972, it made
But don’t put off addressing a personnel matter. Delay or failure to
the front page of Sports Illustrated, and as a result a lot of people
address a personnel matter is fraught with problems.
think it pertains only to equity in women’s sports. But Title IX is not
Treat everybody in a fair and consistent manner. You can’t write
just about athletics. The law states: No person on the basis of sex
up an employee for coming to work late if you’re allowing anoth-
can be excluded from being allowed to participate in or receive the
er employee to do the exact same thing. Inconsistent treatment
benefits of, or be subjected to, discrimination under any education-
affects office morale and undermines your ability to manage — and
al program or activity that receives federal funds. In 2011, the fed-
discipline — effectively.
eral Office for Civil Rights issued a letter to universities — known
We’re required as state employees to be evaluated annually. Avoid grade inflation in evaluations. It’s amazing the number of times I review an evaluation when there’s a problem, and the
as the Dear Colleague letter — that reinforced that Title IX provides protection from sexual violence on college campuses. The Office for Civil Rights took this action because studies done
employee received glowing evaluations every year — “exceeds ex-
in the early 2000s reflected one in five female students experience
pectations,” “no problems identified.” Then suddenly the supervisor
some form of sexual violence during their college careers — later
wants to terminate or suspend them, and there’s no record of the
studies say it could be as many as two in five.
employee being anything other than fabulous. That’s a problem.
So Title IX still governs athletics but also appropriately addresses
For new faculty members, make sure you have a clear under-
how universities are to deal with sexual violence. The law can be
standing of tenure and promotion rules and guidelines in your de-
summarized in one sentence: A university has a duty to promptly
partment. If I was a new faculty member, I would sit down with my
respond to complaints of sexual harassment and sexual violence in
department chair and go through those guidelines to make sure
a way that limits its effect and prevents its recurrence.
that there’s a fair understanding of expectations. If the guidelines
What the law requires first and foremost is that the university’s
call for being a productive scholar and researcher, is that one paper
Title IX coordinator be notified of any incident of sexual violence.
a year? Two papers a year? I’d want to know as much as possible
Anyone — including faculty and staff members — who receives
what’s the standard on which I’m being evaluated. For faculty and
notice of a sexual assault or harassment should immediately notify
staff, take the evaluation process seriously. Engage in meaningful conversation with your evaluator to understand how you’re doing.
No free lunch Every university employee is subject to state ethics laws, no exceptions. The good news is, most of the ethics laws are common sense. A main provision in the ethics law states that you can’t use your university position to gain an economic benefit for yourself or a member of your family or a business with which you are associated. For example, you shouldn’t send university business to a travel agency your spouse works for, and you shouldn’t provide a university benefit or service to someone in exchange for a discount on repairs for your home. Also, with limited exception, you can’t receive anything of value for speaking in your official capacity. If you are asked to speak at Rotary because of the job you hold here, you can’t accept a gift card or honorarium. You can accept a meal incidental to the speaking engagement if the meal is provided to all other persons participating in the event. Another important area in the ethics law is the prohibition on accepting something of value from a current or prospective univer-
“For faculty and staff, take the evaluation process seriously. Engage in meaningful conversation with your evaluator ...”
our Title IX coordinator, Cliff Scott, who also serves as the university’s director of the Equal Opportunity Programs office. He is trained to receive the information and conduct the investigation. The worst thing anyone can do is to do nothing — that’s where schools have gotten into trouble. As of January 2017, OCR was investigating 223 colleges and schools for possible Title IX violations. The bottom line is, when in doubt, don’t make a decision in a vacuum. It’s always better to talk to someone else, and it’s perfectly fine to call the legal office, the Equal Opportunity Programs office or human resources on these issues.
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Key Contacts Office of General Counsel 777-7854 Equal Opportunity Programs 777-3854
14 USCTIMES / AUGUST 2017
LAW OF THE LAND South Carolina may not be the first state you think of when it comes to public policy conversations on climate change, coastal development and renewable energy, but those discussions are happening more and more in University of South Carolina School of Law classrooms. BY MEGAN SEXTON Three Carolina law professors who focus on environmental law say many of their students — regardless of their politics — have a strong interest in understanding ways to protect natural resources.
(Rob) Wilcox has said one of his goals is to create specialty areas, and one of those is the environment. It’s nice to be in a place where there are colleagues working in your field, where you can build a cohesive program.”
“It doesn’t have a political attachment to it,” says assistant professor Shelley Welton. “We have South Carolina students who are sixth generation farmers, or who love to hunt, or who love the coast. This state is a beautiful outdoor environment that people of all stripes want to get out in. It ties students to the land more.”
A FINE BALANCE
And law professors agree that the timing is right for a focus on energy and environmental law. “South Carolina is a state with a lot of opportunity to do better on the environment. It’s worth fighting for, and there’s a good fight to be fought,” Welton says. “Dean
For professor Josh Eagle, a coastal law expert, the importance of environmental law is obvious. It focuses on regulating human impacts on ecosystems so that the environment can continue to benefit people. But in South Carolina, where tourism fuels the state economy, competing interests can quickly muddy the waters. “Part of the challenge in coastal land-use law is getting the balance right. We have to make sure we don’t destroy the ecological engine of our economy — nobody wants to vacation in a parking lot,” Eagle says. “At the same time, people want to develop property. It means smart development, thoughtful development, with the long-term in mind.”
One of the gems in Carolina’s law school environmental curriculum is the monthlong summer coastal field lab in Charleston. “In my mind, it’s the most effective and exciting teaching vehicle I’ve ever been involved in,” Eagle says. “It mixes classroom instruction in law and interdisciplinary areas (such as coastal geology, wetlands ecology, land finance and resource management). Those are things they need basic knowledge of when they practice. And here, students can see how it plays out on the ground.” In eight days of field labs, students visit development sites and meet with environmental lawyers, developers, wetland consultants, city regulators and other experts who are trying to shape how the area grows. This summer, nine students participated, including five from Carolina’s law school. Eagle said he hopes the program grows to 25-30 students.
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“Coastal law is always going to be a big issue across the country,” he says. “Sea level rise is causing severe heartburn. Coastal land is a limited resource. There is always going to be tension over how it is developed and used.”
GOOD GOVERNANCE Shelley Welton believes that climate change will be one of the next century’s great challenges. As an assistant law professor at Carolina, she focuses on what good governance should look like around the issue. “It’s a hard challenge to tackle legally, because the way we think, the way politics work and the way institutions work are ill-designed for tackling it,” Welton says. “It’s a long-term problem, so it can be hard to wrap our heads and our institutions around it.” Welton was trained as an environmental lawyer and was the deputy director of Columbia Law School’s Sabin Center for Climate Change Law before arriving at Carolina. As she continued to work on issues of climate change, her focus shifted to energy law, looking at ways the country can adapt and run on clean energy instead of fossil fuels.
energy law around climate change?’” she says. “How do we design a system that listens to democratic principles and makes the field more participatory?’ “ Her work looks at the diversity of state approaches to addressing the issue of climate change, “everything from abject denial in some places to California proclaiming itself the equivalent of a country.”
A PERSONAL STAKE Assistant professor Nathan Richardson says many students come into law school with an interest in practicing environmental law. “It’s a young field. It didn’t exist at all until the ’70s, and really came into its own in the ’80s and ’90s. For a field of law, that’s young. It reflects the changes in the world and the interest in how humans interact with the world,” he says. “Do we talk about the Clean Air Act and climate change in the classroom? We do. But we also talk about things that affect how lawyers practice law,” Richardson says. “For example, if you want a new commercial building, you’re going to need environmental approvals.
“One of the big questions I’ve been asking is, ‘What role does democracy play in changing
SHELLEY WELTON
Assistant Professor of Law
JOSH EAGLE
Professor of Law
“Any business you run today has some environmental concerns it must deal with, and if it doesn’t, then it’s not being run well.” Richardson’s areas of expertise include climate policy, state and local regulation of oil and gas development, the evolution of the electric utility sector and the management of forests. He teaches environmental law and policies, energy law and a climate change seminar to students who often bring a personal connection to the subject. “You wouldn’t expect people here, students and citizens, to care so much about environmental issues, but my experience is that a large number do. Many are conservationists. That’s an important part of who they are,” he says. “Even if their politics don’t match up with what you would think of as environmentalists, many call themselves environmentalists.” And that particular mix makes for exciting classroom discussion. “It brings a diversity of perspective to the classroom. That’s interesting to me,” Richardson says. “It’s not just everybody thinking we need the strictest environmental policies and not doing a lot of deep thinking about what that means.” T
NATHAN RICHARDSON
Assistant Professor of Law
16 USCTIMES / AUGUST 2017
BREAKTHROUGH BREAKOUT
CLINICAL APPROACH By Chris Horn
The School of Law is launching two new clinics this coming academic year as part of an expanded emphasis on hands-on learning. A medicolegal clinic will team law students with medical students, medical residents and physicians to improve health outcomes for pediatric patients, while a domestic violence clinic will focus on protection, advocacy and community education.
Dream team
To illustrate, Suski points to a case from a medicolegal clinic she
A young girl goes to the pediatrician with asthma symptoms. She gets
taught in Atlanta. “We had a child who had a rare neurological disorder
the treatment she needs, but she is back in the doctor’s office two weeks
who ended up paralyzed; the parents split up because of the emotional
later. The visits continue for months because toxic mold growing in her
strain; the mom lost her job because of missed time, then lost her car and
parents’ rental home won’t allow her to get better — until the pediatrician
apartment. And all of that impacted the child’s health,” she says.
consults a lawyer who convinces the landlord to remove the mold. The
“We were able to help her find a job, which helped them regain housing
girl’s asthma symptoms improve and the frequent trips to the doctor
and a car. We also got the child eligible for Supplemental Security
come to a stop.
Income. That was satisfying.”
It might sound like fantasy, but that’s the kind of outcome
Along with improving health outcomes and promoting interdisciplinary
administrators and faculty at USC’s law school are hoping for when
cooperation, the CHAMPS Clinic holds potential for health and
they launch the new Carolina Health Advocacy Medicolegal PartnerShip
educational research, and opportunities abound for collaboration with
(CHAMPS) Clinic this fall.
other campus partners. “I’m open to the idea of bringing in psychology
“We need to get at the social determinants of health — things like
and public health students. There’s rich potential here,” Suski says.
living conditions, transportation and income stability — because those
Taylor affirms that notion, pointing to the future. “We’re bringing
have a big effect on a person’s health and wellbeing,” says Emily Suski,
together professions that haven’t always collaborated,” he says. “Just
a newly appointed assistant professor of law and director of the
think what those individuals can do when, say, a doctor in a rural
CHAMPS Clinic.
community teams up with a lawyer in the same community who agrees to
“The main idea of this clinic is to train a new generation of doctors and lawyers to work together to improve health outcomes.” Ten law students, four to six medical students, a master’s of social work student and several pediatric residents and physicians will work in teams on cases referred through pediatric clinics staffed by the Palmetto Health-USC Medical Group. Under Suski’s supervision, the student teams will discuss the pertinent medical issues of each case and determine what legal remedies might be available to address them. In addition to the university’s law and medical schools, CHAMPS Clinic partners include Palmetto Health, the Palmetto Health-USC Medical Group and S.C. Legal Services. The clinic begins this fall and will be open regularly every spring semester thereafter. “The students are going to be blown away,” says Caughman Taylor, professor and chair of the Department of Pediatrics in the School of Medicine, which provides medical care at two pediatric clinics at Palmetto Health Richland. “They’re going to see how this delivery model can improve health and what a huge benefit it will be to have healthier children who grow up to become healthier adults.” Suski has taught similar clinics at other institutions. She says the students will first have to learn to meld their innate differences of perspective and professional lexicons, but once they begin to see results from their joint efforts, their enthusiasm will blossom.
take on a few pro bono cases every year. That could be huge. I can’t wait to kick this off.”
Stopping the violence When Lisa Martin arrives at USC’s School of Law later this summer, she’ll bring more than 10 years of experience in the law school clinical world and several years as an attorney advocating for teen victims of domestic volence. The new director of the Domestic Violence Clinic has a two-part vision for the new clinic, which will be offered one semester per year. “I see us involved in seeking emergency relief through domestic violence protection orders and addressing other issues that keep people in abusive relationships they otherwise would want to leave, such as financial security and immigration status,” Martin says. “I also see us engaged in broader initiatives, such as community education projects, so that people know what their legal rights are.” But finding a legal remedy for domestic violence cases hinges, first, on determining that a crime has been committed. “People experience different forms of abuse in different relationships — the menu of tactics can vary quite widely,” Martin says. “The law can step in and offer injunctive relief only if there’s been physical or sexual violence. It gets complicated when there is a lot of emotional abuse
VOL. 28, NO.6 17
From left, Emily Suski and Lisa Martin
but no physical abuse. Clients might be terrified of that even more than physical violence.” Martin’s interest in domestic violence issues began in law school when she worked in an international human rights clinic. After graduation, she worked for a large law firm and took on as much pro bono work as
Eboni Nelson, a USC law school professor, serves as board president of SisterCare in Columbia, an organization that partners with women in abusive relationships. She hopes a collaboration will form with the new clinic when it launches in the spring semester. “There is a dearth of advocates for this kind of work,” Nelson says. “The
possible in areas of domestic and family violence. She later joined the
clinic will train future generations of those who will go into this fulltime
staff of a nonprofit teen violence prevention organization before joining
and those who will do this as pro bono work.”
the law faculty at Catholic University in Washington, D.C. “It’s satisfying to be able to teach about domestic violence, but even more so that I’m able to to make a difference by training law students who will later take on pro bono cases in this arena,” Martin says.
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18 USCTIMES / AUGUST 2017
SYSTEM EQUATION
USC UPSTATE:
TAKING AN INTEREST
BY PAGE IVEY
VOL. 28, NO.6 19
From left: Jim Fair, Ray Merlock and student editor Lucy McElroy discuss story ideas for an upcoming issue of The Carolinian, USC Upstate’s student newspaper.
What do you like to do? It’s a simple question, but it’s one of the first things USC Upstate communications professor Ray Merlock asks students as he tries to help them find internships and, ultimately, jobs. “At USC Upstate, many of my students are first generation — a lot of times, it’s simply a matter of spending a little more time with them to find out what they want,” says Merlock. Case in point: Lucy McElroy, a senior communications major from Spartanburg. Merlock was McElroy’s adviser when she transferred to USC Upstate from USC Columbia. “He patiently helped me sort out the mess after transferring and asked me what my interests were,” McElroy says. “If he had not done that, I wouldn't be where I am today.” McElroy told Merlock that her love was news writing, and he recommended she take a news and feature writing class. “That class has afforded me a world of opportunities,” says McElroy, now editor-in-chief of The Carolinian, USC Upstate’s student newspaper. Merlock also works closely with the student newspaper. “He suggests stories that I otherwise would not know about,” McElroy says. “We've met for lunch several times this summer to discuss the publication, and he's paid special attention to my questions about editing and leading a staff. He makes his goals for The Carolinian clear and motivates me to create something that our university can be proud of.” But advising is rarely a solo act. Merlock credits student media adviser and adjunct facutly member Jim Fair with helping McElroy and other students get a foothold in the profession. “As much as I may have done to help Lucy, Jim is doing so much more,” says Merlock. “Because of Jim, Lucy and another student this summer are getting ready to attend the Carolina Panthers training camp.” Merlock’s own career started when he was drafted in 1970, and he worked with Army recruiters, helping with all aspects of marketing and communications — TV commercials, radio ads, news releases and even speechwriting. After graduate school, he returned to the Army before choosing a career in academia. “I feet very connected to the students,” Merlock says. “Mentoring involves more than just networking and connections to opportunities. It’s letting students know that it is OK to be interested in what they are interested in, but they need to be good at it.” And one thing that Merlock has been particularly good at for the past 30 years is getting USC Upstate students internships and jobs, says Carolyn Farr Shanesy, a former student and current director of the Office of University Marketing and Communications for the campus. “I had never planned to attend USC Upstate, but he changed my mind,” Shanesy says. “As a transfer student, I had intended to finish my bachelor’s degree at USC Columbia and had already been accepted into my program when I met Dr. Merlock and decided USC Spartanburg, at the time, was a better fit for me. He’s kept up with my career, applauded my successes, offered suggestions during layoffs and sent job opportunities to me. “Keep in mind, I graduated 22 years ago. He has made a positive difference; he has changed lives.” McElroy says it goes beyond just helping students. After all, many times these days when he is asking for folks in the business to give his students a chance, he’s talking to former students. “When you are in a business for years, you forget how exciting it is to do that every day,” Merlock says. “Being a mentor is not just what you can do for the student, but what you can do for the field.” T
ENDNOTES The Coleman Karesh Reading Room at the University of South Carolina School of Law is a great place to study the law. It’s also a great place for the quiet contemplation of legal history — starting with the portraits on the south wall, which honor a dozen attorneys, justices and law professors from South Carolina. We’ve included a few of those portraits here. To view the rest, visit guides.law.sc.edu/PortraitCollection.
Charles Pinckney attended the Federal Constitutional Convention in Philadelphia in May 1787, where he contributed the “Pinckney Draft” to the convention. He was elected governor of S.C. four times, beginning in 1789.
Jonathan Jasper Wright was the first African American to practice law in South Carolina and helped draft the judiciary section of the S.C. Constitution in 1868. He became an associate justice of the S.C. Supreme Court in 1870.
Matthew J. Perry Jr., a prominent civil rights attorney, was a central figure in the integration of S.C.’s public schools in the 1960s. He was appointed to the U.S. District Court for South Carolina in 1979.
Jean Toal, ’68 law, became the first woman named to the S.C. Supreme Court in 1988 and served as chief justice from 2000 to 2015. She previously served in the S.C. House of Representatives from 1975 to 1988.
Coleman Karesh, ’23, ’25 law, was a member of USC’s law faculty from 1937 to 1972. The former law library was named after him upon his retirement. In 2017, the reading room in the new law school was similarly named in his honor.