Many law professors and law students know little of what life is like on a high-stakes civil trial team. This short essay provides some observations on life in the war room. Hardly the stuff of the quiet law library, life on trial is often a mix of sex, drugs (well, mostly alcohol), and rock 'n' roll. I set out some ideas for why this is so, and the consequences for practice as a high-end litigator. While it can sometimes seem like being on trial is more like being on spring break, there are consequences to the permissive environment trial allows. Understanding them better and preparing law students better may improve the troubling state of mental health and substance abuse in law practice.
{"title":"Sex, Drugs, and Rock 'N' Roll: Some Observations of Life on a Trial Team","authors":"J. B. Heaton","doi":"10.2139/SSRN.3229054","DOIUrl":"https://doi.org/10.2139/SSRN.3229054","url":null,"abstract":"Many law professors and law students know little of what life is like on a high-stakes civil trial team. This short essay provides some observations on life in the war room. Hardly the stuff of the quiet law library, life on trial is often a mix of sex, drugs (well, mostly alcohol), and rock 'n' roll. I set out some ideas for why this is so, and the consequences for practice as a high-end litigator. While it can sometimes seem like being on trial is more like being on spring break, there are consequences to the permissive environment trial allows. Understanding them better and preparing law students better may improve the troubling state of mental health and substance abuse in law practice.","PeriodicalId":82749,"journal":{"name":"South Dakota law review","volume":"64 1","pages":"175"},"PeriodicalIF":0.0,"publicationDate":"2019-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48956322","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A finely-tuned balancing of commercial enterprise against a family's interests in shelter is at the heart of homestead exemption laws. In South Dakota, this balancing act has been displayed over a 145-year history in the form of legislative enactments, judicial decisions, and referendums. This history illuminates the expression of values against the dynamics of rule-making. A previously published article by this author, "Prequel to Homestead", outlined South Dakota's homestead laws under the contemporary statutory framework and also considered the constitutional history of homestead laws leading up to South Dakota's becoming a state in 1889. This article picks up where the prior article left off and presents judicial decisions dealing with the constitutional ambits of the homestead exemption beginning in 1889 and continuing through today. It concludes with an assessment of an unresolved homestead issue in the context of asset protection: whether a trust-owned or entity-owned home qualifies for homestead protection rights.
{"title":"Homestead: A (New) Hope","authors":"T. Simmons","doi":"10.2139/SSRN.3284494","DOIUrl":"https://doi.org/10.2139/SSRN.3284494","url":null,"abstract":"A finely-tuned balancing of commercial enterprise against a family's interests in shelter is at the heart of homestead exemption laws. In South Dakota, this balancing act has been displayed over a 145-year history in the form of legislative enactments, judicial decisions, and referendums. This history illuminates the expression of values against the dynamics of rule-making. A previously published article by this author, \"Prequel to Homestead\", outlined South Dakota's homestead laws under the contemporary statutory framework and also considered the constitutional history of homestead laws leading up to South Dakota's becoming a state in 1889. This article picks up where the prior article left off and presents judicial decisions dealing with the constitutional ambits of the homestead exemption beginning in 1889 and continuing through today. It concludes with an assessment of an unresolved homestead issue in the context of asset protection: whether a trust-owned or entity-owned home qualifies for homestead protection rights.","PeriodicalId":82749,"journal":{"name":"South Dakota law review","volume":"63 1","pages":"75"},"PeriodicalIF":0.0,"publicationDate":"2018-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41793960","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I. INTRODUCTION: HISTORY OF THE "PECULIAR MECHANISM" (1) The charging order is an oddity of American law, occasionally appearing in old opinions pre-dating World War I to address odd situations in garnishment law, but is now almost exclusively found in the law of partnerships, and more recently limited liability companies ("LLCs"). Yet, in the area of LLCs, the charging order has taken on a life and aura of its own, with some states racing each other to have the "best" charging order provisions, so as to foster entity formation and registered agents business within those states. Creditors at the same time, while of course describing the "race" in less than flattering terms, have been developing their own strategies for defeating or circumventing the much-ballyhooed "exclusivity" of the charging order remedy. To understand why this unique remedy even exists, and why it has graced or cursed the area of partnership and LLC law, we must retrace the history of Anglo-American law to where a fork in the road developed in how each country would handle security interests that were created by creditor claims. The lien was not a part of the English Common Law. Instead, it was first suggested in 1791 in the fonn of a "Mechanic's Lien" by Thomas Jefferson as a means to further the construction of the District of Columbia. After adoption by the Maryland legislature that same year, the concept quickly spread to other states. (2) The concept was not a particularly new one; the Romans had, centuries before, developed the concept of the obligare rem, by which a creditor took an interest in a pignus (the object of a security interest) to secure a debt. The Roman security interest had survived into the civil law of the continental European states, of which the Francophile attorney Jefferson was likely aware. Now we have materialman's liens, tax liens, mortgage liens, attorney's liens, mineral liens, maritime liens, warehouser's liens, HOA liens, municipal liens, UCC liens, judgment liens (of which the charging order lien is but one), and the list goes on and on. Thanks to our third president, America has become the land of the free and the brave, and the lien. While America went the way of the lien, the United Kingdom, instead, adopted the notion of the charging order to the same effect. That a debtor's interest in shares of stock could be "charged" was formalized in the first two Acts of Queen Victoria. 1. Judgments Act of 1838 XIV. Stock and shares in public funds and public companies belonging to the debtor, and standing in his own name, to be charged by order of a judge. And be it enacted, that if any person against whom any judgment shall have been entered up in any of her Majesty's Superior Courts at Westminster shall have any government stock, funds, or annuities, or any stock or shares of or in any public Company in England (whether incorporated or not), standing in his name in his own right, or in the name of any person in trust for him, it shall be lawful
{"title":"Charging Orders: The Peculiar Mechanism","authors":"Jay D. Adkisson","doi":"10.2139/SSRN.2928487","DOIUrl":"https://doi.org/10.2139/SSRN.2928487","url":null,"abstract":"I. INTRODUCTION: HISTORY OF THE \"PECULIAR MECHANISM\" (1) The charging order is an oddity of American law, occasionally appearing in old opinions pre-dating World War I to address odd situations in garnishment law, but is now almost exclusively found in the law of partnerships, and more recently limited liability companies (\"LLCs\"). Yet, in the area of LLCs, the charging order has taken on a life and aura of its own, with some states racing each other to have the \"best\" charging order provisions, so as to foster entity formation and registered agents business within those states. Creditors at the same time, while of course describing the \"race\" in less than flattering terms, have been developing their own strategies for defeating or circumventing the much-ballyhooed \"exclusivity\" of the charging order remedy. To understand why this unique remedy even exists, and why it has graced or cursed the area of partnership and LLC law, we must retrace the history of Anglo-American law to where a fork in the road developed in how each country would handle security interests that were created by creditor claims. The lien was not a part of the English Common Law. Instead, it was first suggested in 1791 in the fonn of a \"Mechanic's Lien\" by Thomas Jefferson as a means to further the construction of the District of Columbia. After adoption by the Maryland legislature that same year, the concept quickly spread to other states. (2) The concept was not a particularly new one; the Romans had, centuries before, developed the concept of the obligare rem, by which a creditor took an interest in a pignus (the object of a security interest) to secure a debt. The Roman security interest had survived into the civil law of the continental European states, of which the Francophile attorney Jefferson was likely aware. Now we have materialman's liens, tax liens, mortgage liens, attorney's liens, mineral liens, maritime liens, warehouser's liens, HOA liens, municipal liens, UCC liens, judgment liens (of which the charging order lien is but one), and the list goes on and on. Thanks to our third president, America has become the land of the free and the brave, and the lien. While America went the way of the lien, the United Kingdom, instead, adopted the notion of the charging order to the same effect. That a debtor's interest in shares of stock could be \"charged\" was formalized in the first two Acts of Queen Victoria. 1. Judgments Act of 1838 XIV. Stock and shares in public funds and public companies belonging to the debtor, and standing in his own name, to be charged by order of a judge. And be it enacted, that if any person against whom any judgment shall have been entered up in any of her Majesty's Superior Courts at Westminster shall have any government stock, funds, or annuities, or any stock or shares of or in any public Company in England (whether incorporated or not), standing in his name in his own right, or in the name of any person in trust for him, it shall be lawful ","PeriodicalId":82749,"journal":{"name":"South Dakota law review","volume":"61 1","pages":"440"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68435396","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What happens to companion animals when pet owners divorce? The role of pets in the lives of humans has evolved so drastically that most companion animals are now considered a member of the family. Courts have failed to evolve with these societal changes, many continuing to apply a strict property law analysis. To combat these inequitable outcomes, some courts have tried but failed in applying a de facto “best interest of the pet” analysis. This Article explains in detail why the application of a traditional property law analysis as well as the attempted application of a de facto “best interest of the pet” analysis in pet custody disputes leads to inequitable results. This Article is the first to propose the application of a “best interest of the family” standard in pet custody disputes. On a case-by-case basis, courts must keep the focus on family members in order to achieve the most equitable outcomes in pet custody disputes. In making pet custody determinations using a “best interest of the family” analysis, courts should consider factors such as child custody orders, lifestyle considerations and the ability to care for the companion animal, and the psychological and emotional needs of companion animal owners. In accordance with the evolving view of companion animals, courts should consider and apply a “best interest of the family” standard when determining the custody of companion animals in order to achieve the most equitable results in pet custody disputes.
{"title":"A Bone to Pick: Applying a Best Interest of the Family Standard in Pet Custody Disputes","authors":"L. Eason","doi":"10.2139/SSRN.2726163","DOIUrl":"https://doi.org/10.2139/SSRN.2726163","url":null,"abstract":"What happens to companion animals when pet owners divorce? The role of pets in the lives of humans has evolved so drastically that most companion animals are now considered a member of the family. Courts have failed to evolve with these societal changes, many continuing to apply a strict property law analysis. To combat these inequitable outcomes, some courts have tried but failed in applying a de facto “best interest of the pet” analysis. This Article explains in detail why the application of a traditional property law analysis as well as the attempted application of a de facto “best interest of the pet” analysis in pet custody disputes leads to inequitable results. This Article is the first to propose the application of a “best interest of the family” standard in pet custody disputes. On a case-by-case basis, courts must keep the focus on family members in order to achieve the most equitable outcomes in pet custody disputes. In making pet custody determinations using a “best interest of the family” analysis, courts should consider factors such as child custody orders, lifestyle considerations and the ability to care for the companion animal, and the psychological and emotional needs of companion animal owners. In accordance with the evolving view of companion animals, courts should consider and apply a “best interest of the family” standard when determining the custody of companion animals in order to achieve the most equitable results in pet custody disputes.","PeriodicalId":82749,"journal":{"name":"South Dakota law review","volume":"62 1","pages":"79"},"PeriodicalIF":0.0,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2726163","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68275631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
INTRODUCTION There are great souls out there who have extraordinary powers of persuasion. If we have been fortunate, we have encountered several of them over the course of our lives. In ways unique to each, they combine authority and wisdom. They appear in different roles--parents, relatives, teachers, pastors, and even political leaders. Their wisdom has shaped us fundamentally, in ways that are discernible long after they are no longer part of our lives. I did not always understand what my favorite law school professor was saying, but his words had power that pulled me along as I was trying to understand. In the words of Jack Nicholson, he made "me want to be a better man." (1) I do not know how to teach this. It is a gift and we are very fortunate when we are exposed to it, and have the maturity to recognize it. For the great majority of us who do not have this gift, persuasion is a harder task. We encounter skepticism and resistance. If we are to be successful in persuading someone, we must first recognize that it is his or her decision, not ours. In contrast with the great teacher, the process cannot be from the top down. It must work from the ground up. if lawyers have a general problem in the art of persuasion, it is that they preach too much, but lack moral authority. They do not recognize that the movement toward a decision comes primarily from within the decision-maker. This does not mean we cannot be great persuaders; we simply have to do it by other means. One of the principal techniques of persuasion comes through understanding the art of storytelling. Storytelling is primal. (2) It can show the way to a common ground that ties in to the basic values of the listener. We all grew up with stories. There is a deep psychological need here. I sense, but cannot fully describe, the importance of stories in my childhood. I am able to see more clearly, however, the importance of stories in the development of my own children. My oldest, now a pathologist in Minneapolis, would absorb words and storylines as if they were the water of life itself. I remember her usual response before the age of two to a story reading was: "More ... more." Frog and Toad, (3) Harold and the Purple Crayon, Where the Wild Things Are, (5) The Velveteen Rabbit, (6) along with the Winnie-the-Pooh series, (7) were the main staples of bedtime reading for all of my daughters. I read these stories hundreds of times. The repetition might be viewed as indoctrination, but it is much more complex than that because, even at an early stage, my kids were not a blank slate. There was already some psychological need there that the stories were addressing. (8) It must be deeply embedded in the genetic code. The stories become part of the moral infrastructure that is being worked out as part of the child's development. As noted by Bruno Bettelheim: "The child intuitively comprehends that although these stories are unreal, they are not untrue." (9) The almost insatiable desire for stor
{"title":"Storytelling for Lawyers","authors":"J. Patten","doi":"10.5860/choice.185146","DOIUrl":"https://doi.org/10.5860/choice.185146","url":null,"abstract":"INTRODUCTION There are great souls out there who have extraordinary powers of persuasion. If we have been fortunate, we have encountered several of them over the course of our lives. In ways unique to each, they combine authority and wisdom. They appear in different roles--parents, relatives, teachers, pastors, and even political leaders. Their wisdom has shaped us fundamentally, in ways that are discernible long after they are no longer part of our lives. I did not always understand what my favorite law school professor was saying, but his words had power that pulled me along as I was trying to understand. In the words of Jack Nicholson, he made \"me want to be a better man.\" (1) I do not know how to teach this. It is a gift and we are very fortunate when we are exposed to it, and have the maturity to recognize it. For the great majority of us who do not have this gift, persuasion is a harder task. We encounter skepticism and resistance. If we are to be successful in persuading someone, we must first recognize that it is his or her decision, not ours. In contrast with the great teacher, the process cannot be from the top down. It must work from the ground up. if lawyers have a general problem in the art of persuasion, it is that they preach too much, but lack moral authority. They do not recognize that the movement toward a decision comes primarily from within the decision-maker. This does not mean we cannot be great persuaders; we simply have to do it by other means. One of the principal techniques of persuasion comes through understanding the art of storytelling. Storytelling is primal. (2) It can show the way to a common ground that ties in to the basic values of the listener. We all grew up with stories. There is a deep psychological need here. I sense, but cannot fully describe, the importance of stories in my childhood. I am able to see more clearly, however, the importance of stories in the development of my own children. My oldest, now a pathologist in Minneapolis, would absorb words and storylines as if they were the water of life itself. I remember her usual response before the age of two to a story reading was: \"More ... more.\" Frog and Toad, (3) Harold and the Purple Crayon, Where the Wild Things Are, (5) The Velveteen Rabbit, (6) along with the Winnie-the-Pooh series, (7) were the main staples of bedtime reading for all of my daughters. I read these stories hundreds of times. The repetition might be viewed as indoctrination, but it is much more complex than that because, even at an early stage, my kids were not a blank slate. There was already some psychological need there that the stories were addressing. (8) It must be deeply embedded in the genetic code. The stories become part of the moral infrastructure that is being worked out as part of the child's development. As noted by Bruno Bettelheim: \"The child intuitively comprehends that although these stories are unreal, they are not untrue.\" (9) The almost insatiable desire for stor","PeriodicalId":82749,"journal":{"name":"South Dakota law review","volume":"57 1","pages":"239"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71024592","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The use and disclosure of protected health information for research under the HIPAA privacy rule: unrealized patient autonomy and burdensome government regulation.","authors":"Stacey A Tovino","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82749,"journal":{"name":"South Dakota law review","volume":"49 3","pages":"447-502"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25868736","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Medical confidentiality and disclosure of paternity.","authors":"Janet Leach Richards, Sheryl Wolf","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82749,"journal":{"name":"South Dakota law review","volume":"48 3","pages":"409-42"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24579285","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Whose life is it anyway?: an analysis and commentary on the emerging law of physician-assisted suicide.","authors":"C P Gaumer, P R Griffith","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82749,"journal":{"name":"South Dakota law review","volume":"42 3","pages":"357-98"},"PeriodicalIF":0.0,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25235178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 1991, the South Dakota Legislature enacted a living will statute. Included is a pregnancy provision that prevents pregnant women from obtaining the full benefit of the statute. A South Dakota Attorney General's opinion was released discussing the conflict of laws problems posed by the statute. That opinion, however, did not address the more important question of the constitutionality of the pregnancy provision. This comment analyzes the pregnancy provision under the Due Process, Equal Protection, and the Establishment Clauses and concludes that South Dakota's pregnancy provision is unconstitutional under all three doctrines.
{"title":"Adding constitutional depravation to untimely death: South Dakota's living will pregnancy provision.","authors":"H E Matchan, K E Sheffield","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>In 1991, the South Dakota Legislature enacted a living will statute. Included is a pregnancy provision that prevents pregnant women from obtaining the full benefit of the statute. A South Dakota Attorney General's opinion was released discussing the conflict of laws problems posed by the statute. That opinion, however, did not address the more important question of the constitutionality of the pregnancy provision. This comment analyzes the pregnancy provision under the Due Process, Equal Protection, and the Establishment Clauses and concludes that South Dakota's pregnancy provision is unconstitutional under all three doctrines.</p>","PeriodicalId":82749,"journal":{"name":"South Dakota law review","volume":" ","pages":"388-412"},"PeriodicalIF":0.0,"publicationDate":"1992-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25235184","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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