Supreme Court Issues Opinion In Texas Affirmative Action Case

On Monday June 27, in Fisher v. University of Texas at Austin, the United States Supreme Court ruled the Court vacates the Court of Appeals’ judgment and remands for the Court of Appeals to "assess whether the University has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity." 

For more information about this case, click on these links:
http://www.oyez.org/cases/2010-2019/2012/2012_11_345
https://login.lawproxy.usd.edu/login?url=http://news.bna.com/lwln/  - link to United States Law Week coverage (USD Law School subscription database)

(This entry was originally written and posted by Darla Jackson)

Vote for Your Favorite United States Supreme Court Justice

What a rollercoaster week for the Supreme Court!  David Lat and Elie Mystal at Above the Law blog, one of the ABA's 2012 Blawg 100, assess the legacies of the nine United States Supreme Court justices in the wake of this term's high-profile, controversial decisions.  After David and Elie's sometimes acerbic analysis, they ask that you vote for your favorite Supreme Court Justice.

The official Supreme Court website contains links to PDF's of this term's decisions, as well as earlier decisions from 2008-2011. 

Bloomberg Law subscribers (including USD law students) will find summaries of the week's important decisions by logging into Bloomberg Law, going to BNA Law Reports, and scrolling down by title down to United States Law Week.

(This entry was originally written and posted by Marsha Stacey)

Adoptive Couple v. Baby Girl - US Supreme Court Focuses on Indian Child Welfare Act

Adoptive Couple v. Baby Girl is a case that has caught the attention of the American public.  The case arose when a woman from Oklahoma agreed to allow a South Carolina couple to attempt to adopt her newborn daughter.  The remaining facts surrounding the case have continued to be an area of contention.  One characterization of the facts is as follows:

"... the baby's biological father disclaimed any interest in raising the child.  The biological father was estranged from the biological mother and provided no support during the mother's pregnancy, so the couple would normally not have needed his consent to adopt the child.  However, when he learned of the planned adoption, he objected.  And because he is a registered member of an Indian tribe, the lower courts ruled that a federal law, the Indian Child Welfare Act (ICWA), barred the adoption." 

However, the Native American community provides a very different characterization of the facts, highlighting the fact that the biological father is a member of the Cherokee Nation and an Iraq war veteran who was deployed during much of the period of the dispute.  Further, the Native American community focuses on the conduct of the attorneys of the adoptive parents. While the attorneys did provide notice of the adoption to the tribe, there were admittedly errors in the notice.  It is contended that had there not been errors in the notice, the adoptive parents would never have received permission to remove the child from Oklahoma to South Carolina. 

The differing characterizations of the facts are certainly evident in the filings in the case, whcih are linked from the SCOTUS Blog post here. 

One commentator summarized the case, "The Court had before it two competing interpretations of the ICWA:  the more expansive version, advocated by the biological father, argued essentially tht ICWA applies whenever a court is considering whether to terminate parental rights of an Indian parent; the competing interpretation, advanced by the adoptive parents, argues that ICWA's coverage is limited to the kinds of cases that Congress most likely had in mind when it passed ICWA - namely, those in which social workers and other government officials are seeking to remove Indian children from an existing Indian family.  In deciding the case the majority, in this 5-4 decision, accepted the latter interpretation.

Notwithstanding the decision, there remains some uncertainty regarding what will now happen in regards to custody over the child.

For additional information on ICWA, use the Law Library catalog to locate resources.

(This entry was originally written and posted by Darla Jackson)

Supreme Court DNA Ruling: Court Says Human Genes Cannot Be Patented

The Supreme Court's latest decision regarding human genes is that naturally occurring DNA is not patent eligible. At the same time, synthetically created DNA, known as a cDNA, is patent eligible.  Click to read Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. ___, 2013 WL 2631062 (2013).

For more information about this case, click on these links:
SCOTUS Blog
Oyez Project
Huffington Post

Recent law review and journal articles on biotechnology and patent law can be found in the following resources:
Duke Law and Technology Review (free online legal publication)
Harvard Journal of Law and Technology (JOLT) and its companion publication, JOLT Digest (free online legal publications)
Marquette Intellectual Property Law Review (free online legal publication)
IDEA: The Intellectual Property Law Review (available in Hein Online subscription database)
Nanotechnology Law and Business (available in Hein Online subscription database)

(This entry was originally written and posted by Gordana Filipovic)

Lesbian, Gay, Bisexual and Transgender Pride Month 2013

June is Lesbian, Gay, Bisexual and Transgender Pride Month, as proclaimed by President Obama.  In his proclamation, the President discussed recent progress toward LGBT equality, including the repeal of "Don't Ask, Don't Tell," and the reauthorization of the Violence Against Women Act, that includes the prohibition of discrimination on the basis of sexual orientation or gender identity in the implementation of any VAWA-funded programs. Looking to the future, President Obama declared his support for a "fully-inclusive" Employment Non-Discrimination Act and a Respect for Marriage Act.

To acknowledge and celebrate LGBT Pride month, the McKusick Law Library has displayed several LGBT legal guides, including Out Law: What LGBT Youth Should Know About Their Legal Rights, by Lisa Keen, and A Legal Guide for Lesbian and Gay Couples by Dennis Clifford, Frederick Hertz and Emily Doskow.  The display also contains Gay Rights and American Law by Daniel Pinello concerning appellate court decisions dealing with lesbian and gay civil rights, and Same-Sex Marriage: The Cultural Politics of Love, focusing specifically on the right to marry. 

For more information about LGBT advocacy and history, visit these online resources:
-It Gets Better Project (to inspire LGBT youth around the world that it does get better, and to create and inspire changes that will make it better)
-American Civil Liberties Union (ACLU) Lesbian, Gay Bisexual and Transgender Project
-Library of Congress - Lesbian, Gay, Bisexual and Transgender Pride Month 2013 (resources and profiles)

(This entry was originally written and posted by Marsha Stacey)

Bankruptcy Avoidance Actions

One of the basic tenets of bankruptcy law is to allow similarly-situated creditors to share equally in the debtor's property.  Prior to and even after the filing of the debtor's bankruptcy petition, a creditor may receive payments or property from the debtor that allows the creditor to receive more than if the creditor had participated in the bankruptcy.  Bankruptcy law allows the bankruptcy trustee to set aside, or "avoid," these transfers and recover the payments, property or value of the property for the benefit of the other creditors.

A recent story in the Sioux Falls Argus Leader reported the filing of an adversary proceeding to avoid transfers of property and money made by Chapter 7 Debtor Kent Vucurevich.  In Trustee Lee Ann Pierce's complaint, several counts included allegations of "preference" payments of money and property to creditors.  In this type of avoidance action, money and property may be recovered for the bankruptcy estate regardless of the debtor's or creditor's motives, as long as the transfers occurred within a certain time before bankruptcy.  In another count of the complaint, Pierce alleged fraudulent transfers of the debtor's property, which requires her to prove that the debtor intended to "hinder, delay or defraud" creditors.  Bankruptcy courts recognize certain "badges of fraud," or factual indicators, as demonstrating the debtor's actual fradulent intent.

You may access the Adversary Complaint styled Pierce v. Vucurevich in In re Vucurevich, Bankr. No. 11-40501 in the United States Bankruptcy Court for the District of South Dakota through Pacer or Bloomberg Law.  For more information about docket research with Bloomberg Law and Pacer, see the McKusick Law Library Research Guide "Guide for Summer Interns and Associates."

For more information on the avoidance powers of a bankruptcy trustee, or about bankruptcy law in general, the McKusick Law Library contains many print bankruptcy resources, including Collier on Bankruptcy, 16th edition, Norton Bankruptcy Law and Practice, 3rd edition, and Bankruptcy Litigation and Practice: A Practitioner's Guide, 4th edition, by Thomas Solerno.  Collier is available on Lexis.com and Lexis Advance, and Norton's is available on WestlawNext.    

(This entry was originally written and posted by Marsha Stacey)

McKusick Law Library - A "Cool" Place to Research, Read and Study

While the repairs to the Law School's climate control system are not completed, the system has been modified so that the McKusick Law Library is once again a "cool" place to research, read and study.  If you need a quiet and comfortable place to do your work, please visit the Law Library. The law librarians also are available all summer for reference and research assistance.

(This entry was originally written and posted by Marsha Stacey)

South Dakota's Implied Consent Statute in the Crosshairs

The U.S. Supreme Court, in its April 17th, 2013 opinion, Missouri v. McNeely, ___ U.S ___, 133 S. Ct. 1552, 185 L.Ed.2d 696 (2013), clarified that in a DUI case, an immediate warrantless blood draw is a search subject to the Fourth Amendment's constraints and the validity of the search must be determined on the basis of the totality of the circumstances of each case.

The Court stated, “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

State courts are now grappling with the status of “implied consent” laws which outline how law enforcement can obtain “consent” to warrantless blood and breath tests from persons arrested for driving under the influence and which provide consequences for arrestees who refuse to submit to the tests (often more severe than the penalties for a first time DUI conviction). The issue of whether such “consent” is constitutionally voluntary is particularly in question.

The Supreme Court of Arizona recently became the first state high court to address this question after the issuance of the McNeely opinion.  Prosecutors in the Arizona case argued that the existence of the Arizona implied-consent statute satisfies the consent exception to the warrant requirement as a matter of law.

Relying on McNeely, the Arizona Supreme Court ruled, “Contrary to the State's argument, a compelled blood draw, even when administered pursuant to § 28-1321, is a search subject to the Fourth Amendment's constraints.” The existence of circumstances justifying an immediate warrantless blood draw, the court held, must be determined on the basis of the totality of the circumstances in each case.

South Dakota's own implied consent statute, SDCL § 32-23-10 , does not limit warrantless blood and bodily fluid testing to "impaired" drivers.  Rather it includes, "Any person who operates any vehicle in this state" as being considered to have given consent when placed under arrest for a suspected DUI.  Further developments regarding South Dakota's implied consent law may be forthcoming. 

(This entry was originally written and posted by Stephanie Trask, University of South Dakota School of Law student)

When Jurors Fail to Agree

When jurors in a South Dakota civil case cannot agree on a verdict during their deliberations, what happens to the case?  This question came up recently based upon a case from Rapid City.  After deliberating for almost seven hours one day and two hours the next morning, the jurors told the judge that they could not agree on a verdict. According to the news report, the judge declared a mistrial, dismissed the jury and indicated that it would be next fall before he could schedule a new trial.

In the event the jury cannot agree, who "wins" the case?  South Dakota Codified Laws Section 15-14-33 states that in all cases where the jury are discharged or prevented from giving a verdict, the case may be tried again.  The plaintiff returns to the place he or she was before trial, the status quo is restored, and the plaintiff is entitled to a new trial, according to University of South Dakota law professor Roger Baron.

When the jurors report to the judge that they are unable to agree on a verdict, the judge may give them South Dakota Pattern Jury Instruction 60-10-30, a supplemental instruction to the jury. This instruction reminds the jurors of their original instructions that when the same ten jury members have agreed on the right of a party to recover damages, and the amount of the damages, or that a party should not be allowed any damages, that is the verdict.  The instruction also reminds the jurors that they should make every reasonable effort to reach a verdict. 

(This entry was originally written and posted by Marsha Stacey)

Update on the McKusick Library climate control situation

The McKusick Law Library continues to be quite warm.  The Library is open and the staff will be at the Circulation/Reference desk during normal business hours today.  We hope the replacement part will be in soon and the Library again will be a cool place to study and research!

(This entry was originally written and posted by Marsha Stacey)

The Great Outdoors!

President Obama has proclaimed June 2013 as "Great Outdoors Month." In his proclamation, the President reminded Americans of the obligations they have to preserve and protect the nation's natural "treasures," including the National Parks, National Monuments and other public lands. He noted that earlier this year, he designated five new National Monuments. Obama also promoted the 21st Century Conservation Service Corps, a group of federal programs that offer young people employment in improving and preserving public lands and national parks, providing disaster preparation and recovery, restoring natural habitats and creating urban parks and gardens, and in other public services areas.

To celebrate the Great Outdoors, the McKusick Law Library has created a display of resources from our collection about the nation's public lands. Included are These American Lands from the Wilderness Society, about the history, problems and future of America's public lands, including its national parks, national forests, wildlife refuges and designated wilderness areas, and Federal Land Management Agencies edited by Pamela D. Baldwin, which provides a very interesting overview of how federal lands and resources are managed, the authorities under which these lands are managed, and some of the issues associated with federal land management.

Before heading out to any of the federal public lands and recreational areas this summer, outdoor enthusiasts are advised to check the individual websites for each park, monument, forest or wilderness area. Many services have been impacted by federal sequestration (a series of automatic, across-the-board permanent spending cuts) and there may be decreases in entrance station hours, educational programming and ranger-led activities, as well as less road, trail and campsite maintenance. To read how sequestration has affected services at two parks, see the Glacier National Park and the Wind Cave National Park websites.

(This entry was originally written and posted by Marsha Stacey)

Special Legislative Session Canceled

On May 30th, we reported that South Dakota Governor Daugaard had called for a special legislative session to amend a bill passed during the regular session which approved building a 41.3 million dollar veterans home in Hot Springs. The bids had come in at $10 million dollars over that amount. The legislature had to approve the change in the amount this month or the State stood to lose a significant federal grant that would cover part of the cost of the home.

It was announced today that the Special Session has been canceled. In a letter to members of the South Dakota legislature, Governor Daugaard stated that the federal Veterans Administration had extended the grant to build the home until February 2014. This extension will give South Dakota officials time to revise the plans for the veterans home and possibly rebid the project.

(This entry was originally written and posted by Marsha Stacey)

McKusick Library cooling issues

Due to mechanical issues, the McKusick Law Library is very warm today, Wednesday, June 12th. We will remain open and the library staff will be at the Circulation/Reference desk during normal business hours, but we would like everyone to be aware of the situation. We will keep you informed on the status of the repairs.

(This entry was originally written and posted by Marsha Stacey)

Law Ratchet

Law Ratchet, a new aggregator of legal news and blogs, premiered in late May. Law Ratchet allows you to scan legal news from various sources, i.e. CNN, the ABA Journal, The Wall Street Journal Law Blog, and Thomson Reuters News and Insight, and law blogs ("blawgs") by various subject areas, including "Top 25 Blogs," "Law and Technology," and "Litigation." From Law Ratchet, you link directly to the original post. However, as this post by Robert Ambrogi, a lawyer and media consultant, pointed out, Law Ratchet is not an RSS reader because it does not allow you to add other blogs that you would like to follow.

In another post, Ambrogi brought up the interesting question of whether Law Ratchet's aggregation violates copyright law by republishing the news and blog posts. Ambrogi summarizes the controversy and highlights two possible defenses to Ratchet's copyright infringement: fair use and an implied license to use content when the original site includes an RSS feed. Further, Derek Chau, CEO of Ratchet Technology, in an apology to Simple Justice's Scott Greenfield (see Update #3), stated that Law Ratchet has a new "opt-out" feature for bloggers who do not want their content included in Law Ratchet.

Resources in the McKusick Law Library on the fundamentals of copyright and Internet law may be located through the library catalog on the Law Library's webpage, including Frank Andorka's What is a Copyright? (published by the American Bar Association's Section of Intellectual Property Law), Internet and the Law: Technology, Society, and Compromises by Aaron Schwabach, and Michael L. Rustad's Internet Law in a Nutshell.

More information about the law of copyright can be found at the U.S. Copyright Office website and the University of California's Copyright Ownership webpage.

(This entry was originally written and posted by Marsha Stacey)

South Dakota's Supreme Court Chief Justice, David Gilbertson, Makes History

On June 5th, the South Dakota Supreme Court announced that the Justices had unanimously elected David Gilbertson to the position of Chief Justice for an unprecedented 4th term.

As the Chief Justice, Gilbertson is responsible for the administration of South Dakota's state court system, also known as the unified judicial system (UJS). His responsibilities include the budget for the court system and the appointment of all circuit court judges.

The Chief Justice also delivers the State of the Judiciary message to the Legislature each year. These messages and other information on the South Dakota Unified Judicial System can be viewed on the judicial website.

An informative resource on the judiciary which is available in hard copy in the Law Library, as well as online, is the South Dakota Legislative Manual which is also commonly known as the Blue Book. The online version is found on the Secretary of State's website. The Blue Book contains biographical information on the Supreme Court Justices as well as all the Circuit Court Judges.

We join the congratulations to Justice Gilbertson on this great honor.

(This entry was originally written and posted by Candice Spurlin)

Professor Garry's "Novel" Ideas

Law students read "heavy" casebooks throughout the academic year, so when winter finally gives way to summer it's enjoyable to choose "lighter" reading. An earlier blog highlighted the poetry of Professor Frank Pommersheim, while this entry focuses on the novels of USD Law Professor Patrick Garry.

Like Professor Frank Pommersheim, Professor Garry's scholarly books can be viewed on the USD Law Library's SelectedWorks page.  

In addition to 11 non-fiction books, Professor Garry has written 8 novels that range in theme from a courtroom page-turner to a family building a community bomb shelter in a small town during the cold war era. A summary of each of his novels can be found on Garry's website.

Of Garry's book The Prisoner, literary critic, John Austin of The Book Club, Tampa, Florida writes "The Prisoner ... once again shows this author’s uncanny ability to take a simple story and turn it into a powerful and moving experience for the reader. In this book, the main characters eventually are faced with a decision that will change each of their lives forever. The choice is between what is morally and ethically right or the expedient alternative. The twists come like body blows as each one decides, and the novel’s conclusion will leave the reader feeling as though they have been struck by a sledge hammer to the chest. The Prisoner only reinforces my feeling that Patrick Garry is one of our best American writers, and his work deserves a far bigger audience. If you haven’t read one of his books, I would recommend that you start now."

Many of Professor Garry's novels have received multiple awards. His awards include the Jack Eadon Award for Best Contemporary Fiction, the Eric Hoffer Literary Award, and the National Best Novel Award.

(This post was originally written and posted by Candice Spurlin)

What do Criminal Law and Haiku Have in Common?

The answer to the riddle is Professor Frank Pommersheim who teaches Criminal Law and Criminal Procedure at USD Law School and writes poetry wherever he is.

Some faculty members at USD Law School author novels or poetry chapbooks in addition to their scholarly publications. Frank Pommersheim, whose scholarly publications may be seen on the law library's SelectedWorks page, is one such professor.

Professor Pommersheim enjoys writing poetry. Much of his work is written in haiku-like verse, a very short Japanese poetry form. His recent books are titled: Small Is Beautiful: The Buddha Correspondence (2011), East of the River: Poems Both Ancient and New (2008), and Haiku for the Birds (2002). Below is an example of one of Professor Pommersheim's most recent poems.

"Buddha Paints a Still Life" appears in Buddha's Spring Triptych (2013).

Apples
prayer beads

clear light
open window

Holding
the moment

In addition to these recent works, Professor Pommersheim has written two other poetry books: Mindfulness and Home: Poetry and Prose from a Prairie Landscape (1997) and Snaps: Poetry and Prose from a Family Album (1994).

Frank Pommersheim's poetry books can be purchased at the USD Bookstore or by e-mailing your request to teresa.carlisle@usd.edu.

(This entry was originally written and posted by Candice Spurlin)