South Dakota Law Review

Articles from Vol. 58, No. 2, Summer

Defining the Brunner Test's Three Parts: Time to Set a National Standard for All Three Parts to Determine When to Allow the Discharge of Federal Student Loans
I. INTRODUCTION Since the origin of the modern Bankruptcy Code, (1) when federal student loans were dischargeable in bankruptcy, it has become increasingly more difficult to discharge those loans in any bankruptcy proceeding. Federal student loans...
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Doors to Remain Open during Business Hours: Maintaining the Media's (and Public's) First Amendment Right of Access in the Face of Changing Technology
In Rapid City Journal v. Delaney, the South Dakota Supreme Court held that, under the First Amendment of the United States Constitution and common law principles, the media has a qualified right of access to civil litigation similar to that of criminal...
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Ex Parte Contacts Revisited
When a plaintiff brings a legal claim, the physician-patient privilege is waived for the purpose of defending the action. In a medical malpractice action, for example, that means that attorneys retained to defend the action may therefore freely discuss...
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Fox-Hunting the Conscience of the King into a Shallow Grave: Sovereign Immunity and Discovery as Applied to Indian Tribes in Alltel Communications, L.L.C. V. DeJordy and Its Implications for Discovery Practice
In Alltel Communications, L.L.C., v. DeJordy, the Eighth Circuit Court of Appeals quashed third-party subpoenas issued to tribal officials of the Oglala Nation of the Pine Ridge Indian Reservation. The Eighth Circuit found tribal immunity from suit...
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Metaphors and Persuasion
I. INTRODUCTION Persuasion is not a completely rational process. Some would say that, in many instances, it is mostly non-rational. (1) This is why stories are so important in the process of persuasion. (2) Stories connect with the subconscious...
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Mixed Motives Speak in Different Tongues: Doctrine, Discourse, and Judicial Function in Class-of-One Equal Protection Theory
The class-of-one equal protection claim is a red-headed stepchild of constitutional law. It expresses the principle of impartiality at the heart of the Equal Protection Clause, but is divorced from the group-centered tiered scrutiny of traditional...
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Mixed Motives Speak in Different Tongues: Doctrine, Discourse, and Judicial Function in Class-of-One Equal Protection Theory
IV. CHARTING A NEW COURSE BY FOUNDING A DIFFERENT DISCOURSE Engquist holds that the class-of-one claim makes a "poor fit" in the employment context and therefore will not be recognized therein. (155) Read strictly, it stands for the proposition...
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Presumed Dead: Laying to Rest the Whereabouts Unknown
The Office of the Special Trustee for American Indians maintains a list of tribal members whose whereabouts are unknown, known as the Whereabouts Unknown list. These missing tribal members have Individual Indian Money ("IIM") accounts accruing value...
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South Dakota's Solutions to Soppy Soil: Changes to Water Management
Drainage law in South Dakota is complex, and the laws are different in every county. After codifying case law in 1985, the South Dakota Legislature delegated authority to county governments to regulate their own drainage projects, subject to common...
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