Hon. Robert Bryan Harwell

Chief U.S. District Judge, District of South Carolina

by Derek A. Shoemake and Brendan Barth

Derek A. Shoemake is an assistant U.S. attorney in the District of South Carolina and clerked for Hon. G. Ross Anderson Jr. and Hon. R. Bryan Harwell, both with the U.S. District Court for the District of South Carolina. Prior to his time as a prosecutor, he had wide-ranging experience in private practice. Brendan Barth is a partner at Barth, Ballenger and Lewis in Florence, S.C., and clerked for Hon. R. Bryan Harwell. He has practiced extensively in the trial courts of South Carolina, with a focus on family law, personal injury, and criminal defense, including both state and federal offenses. hief U.S. District Judge R. Bryan Harwell, of

Cthe District of South Carolina, looks at home on the bench. Perhaps this is because serving as a judge seems to be part of the family business. One of his uncles, James R. Harwell, was a magistrate judge for Florence County, S.C.; another uncle, Baxter “Hicks” Harwell Jr., was a legendary judge on the South Carolina Circuit Court; and Chief Judge Harwell’s father, David Walker Harwell, served as chief justice of the South Carolina Supreme Court. However, those who know Chief Judge Harwell best will tell you that his comfort on the bench also stems from his 20 years spent practicing law.

Before the Bench

Even before his legal career began, Chief Judge Harwell demonstrated the intellectual aptitude and dedication that would pave the way for his future successes. Born and raised in Florence, S.C., Chief Judge Harwell graduated from Clemson University in 1980 in only three years. He accomplished a similar feat when he earned his Juris Doctor degree from the University of South Carolina School of Law in only two and a half years. He rounded out his legal training by serving as a law clerk for both South Carolina Circuit Court Judge Rodney A. Peeples and U.S. District Court Judge G. Ross Anderson Jr.

Chief Judge Harwell returned home to Florence in 1984 and became a partner with the law firm of Harwell, Ballenger, Barth & Hoefer. During his decades-long career as a lawyer, he handled a dynamic general practice that involved a broad range of civil and criminal matters. As he was admitted to the bars of the U.S. Supreme Court, the U.S. Court of Appeals for the Fourth Circuit, the U.S. District Court for the District of South Carolina, and the state of South Carolina, Chief Judge Harwell’s litigation career involved countless trials and appearances in courtrooms across South Carolina.

Based on lessons learned from watching the other lawyers in his family and in his law practice, Chief Judge Harwell was known to digest every detail of a case and approach its resolution with pragmatism. His prowess in the courtroom was recognized with an invitation to the American Board of Trial Advocates, and he served on many other legal-related professional organizations. Chief Judge Harwell also worked as a certified mediator and arbitrator. His experience as a mediator—where he shepherded litigants through all manner of legal proceedings—would be particularly useful when Chief Judge Harwell made his way to the bench.

Adjusting to the Robe

Chief Judge Harwell’s move to the bench came in 2004, when President George W. Bush nominated him to fill a district court vacancy in Chief Judge Harwell’s home town of Florence. At the time, U.S. Senator Lindsey Graham heralded the nomination and highlighted Chief Judge Harwell’s “deep knowledge of the law” and ability to treat those who would appear before him with respect. “I’ve had the pleasure of knowing Bryan for almost twenty years,” said Senator Graham. “I have complete confidence in his ability to be an outstanding federal judge. His legal experience and unwavering character make him an ideal choice. He will make his state and nation proud serving on the federal bench.”1

Those who practiced with Chief Judge Harwell echoed similar sentiments. Kevin Barth, his longtime

friend and former law partner, noted that Chief Judge Harwell had been a “lawyer’s lawyer” during his time in practice. “It was a true pleasure practicing law for twenty years with a good partner and good lawyer like Bryan,” said Barth. Chief Judge Harwell was ultimately confirmed by the U.S. Senate on June 24, 2004, and received his commission on June 30, 2004.

Now in his 15th year as a judge for the U.S. District Court for the District of South Carolina, and in his first year as chief judge for that court, Chief Judge Harwell has presided over numerous significant cases. These cases range from a precedent-setting trademark dispute to a death penalty trial to substantial civil rights cases. However, Chief Judge Harwell eschews the spotlight and treats every case before him as if it is the most meaningful case on his docket. Thus, his friends, colleagues, and former law clerks explain that what sets Chief Judge Harwell apart is not the cases over which he’s presided, but the aptitude, thoroughness, and work ethic he carried from private practice to the bench.

Keys to Success

As Barth correctly predicted when Chief Judge Harwell was nominated, the last 15 years have shown that the federal bench “added a great trial judge.” William Tinkler, a former law clerk for Chief Judge Harwell who has also tried cases before him, said Chief Judge Harwell would often view a case through the lens of his time as a practicing attorney and the education he received at the hands of his judicial family members, particularly his father. “When I was working for him, he would often remind us not to forget how hard it is to be a lawyer,” explained Tinkler.

Lawyers who appear before Chief Judge Harwell know that he’ll be able to quickly digest the legal issues at play, and that he’ll move cases with skill and without delay. Tinkler attributes his aptitude to a practical understanding of legal substance and procedure. “He intimately understands how the law affects the parties and how the procedural rules affect the lawyers,” said Tinkler. Chief Judge Harwell would catalogue this information, creating an ever-burgeoning research file where he has saved decades of key cases, articles, and other legal writings in a meticulously organized cabinet. “I’d often hear, ‘Check the research file, there’s got to be a case on this,’” said Nick Lewis, who served as one of Chief Judge Harwell’s first law clerks and who is now a partner at his former firm.

Chief Judge Harwell is also as thorough as he is skilled. Lawyers who have appeared before him often say that it is not uncommon for Chief Judge Harwell to be the most prepared person in the room. “The biggest takeaway that I had from years of clerking with Judge Harwell,” said Lewis, who has also appeared before Chief Judge Harwell, “was that you can never be over-prepared for Court. As the presiding judge, he made sure to know each and every case that came before him for trial both frontwards and backwards.” Although he has been chief for less than a year, his preparedness is already assisting the other judges in the district. “Chief Judge Harwell has always been there to answer my questions,” said U.S. District Judge Donald C. Coggins, who was confirmed as a district judge for the District of South Carolina in November 2017. “Quite often he offers helpful materials as well.”

In chambers, Lewis said Chief Judge Harwell would spend hours considering all possible scenarios and arguments, and ensuring that he was well-prepared in the event that any of those potential arguments were raised. Before any hearing, Chief Judge Harwell will have read every relevant filed document, every key case cited in those documents, and various legal writings on related topics. “I have attempted, with varying degrees of success, to carry this mindset into my practice of the law,” said Lewis.

The thoroughness that Chief Judge Harwell brings to his docket is only made possible by a boundless work ethic. For more than six years after his appointment to the bench, Chief Judge Harwell served as the junior judge in the district, handling a large caseload that routinely required travel to courthouses nearly three hours away from his chambers. Even after more than a decade and a half on the bench and reaching the height of seniority, it is still not uncommon for Chief Judge Harwell to be among the last people to leave the courthouse after having sent his law clerks home hours before.

This dedication was not limited to the courtroom. He served as a JAG officer in the South Carolina Army National Guard. Interested in education, he taught business law at Francis Marion University and chaired the governing board of Florence-Darlington Technical College. His work in both the legal profession and the community earned him the Order of the Palmetto, South Carolina’s highest civilian award. Most importantly, Chief Judge Harwell managed to do all this while spending time with his wife and his two children, who were both school-age during the vast majority of Chief Judge Harwell’s time on the bench.

Chief Judge Harwell’s storied career shows no signs of slowing down. A lifetime spent with judges and lawyers has crafted a pragmatic and skilled jurist who still maintains, as Senator Graham said upon his confirmation, a “great understanding of people.” In that way, the lawyer’s lawyer from Florence became one of the great lawyer’s judges on the South Carolina federal bench. 

Endnotes

1Sen. Lindsey Graham, Press Release: Florence Attorney Bryan Harwell Nominated to Federal Bench (Jan. 21, 2004), https://www.lgraham.senate.gov/public/index. cfm/press-releases?ID=1EB33D92-B94B-4391-B118DEE1FDE303EB

Welcome to Charleston!

hen I first sat down to write this welcome message two years ago in preparation for the FBA’s 2020 Annual Meeting & Convention, which was to be in held in Charleston, the world was just beginning to understand the implications of the COVID-19 pandemic. Eventually, the South Carolina Chapter planning committee’s expectations succumbed to the new reality that an in-person conference in 2020 was not going to be feasible. Taking inspiration from our state’s motto, Dum Spiro Spero (While I Breathe, I Hope), the chapter remained optimistic. We are most grateful that rather than cancel the Charleston event, the FBA agreed to postpone it to 2022.

In the past decade, the city of Charleston, which celebrated its 350th anniversary in 2020, has topped almost every travel list as an ideal location to visit. When you come to Charleston and experience the historical landmarks and architecture, world-class restaurants, top-rated golf courses, peaceful beaches, and luxury hotels and spas, you will see why.

The conference will be headquartered at the historic Francis Marion Hotel, which dates back to 1924. The hotel’s 1996 restoration merited a National Trust for Historic Preservation award. Named for South Carolinian and Revolutionary War general Francis Marion, who earned the nickname the “Swamp Fox” for his ability to elude capture by the British by disappearing into the Lowcountry swamps, the hotel is centrally located amid the shops, restaurants, and dynamic nightlife of Upper King Street.

On Thursday evening, attendees will hop on a trolley bus for a brief trip past some of the city’s iconic buildings and end with a cocktail reception at South Carolina Society Hall and an optional guided tour of Charleston’s renowned “Four Corners of Law.” Be sure to plan well ahead to make dinner reservations at one of the city’s award-winning restaurants, many of which are within easy walking distance. We’ve included a restaurant guide in this issue to give you some ideas.

Friday evening’s networking reception is located just blocks away from the hotel, at the William Aiken House. Our theme for the evening will be the “Charleston Renaissance,” the period between 1915 and 1940, when the city experienced a “multifaceted cultural renewal” fueled by mainly local “artists, musicians, writers, historians, and preservationists.”1 We anticipate a fun-filled evening reminiscent of Charleston’s most creative epoch.

In addition to the receptions, the chapter is planning a full menu of CLE and speakers, including a keynote address by U.S. District Judge Richard Gergel, discussing his book Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring.

While we have made do with virtual meetings over the past two years, we were missing the handshakes, eye contact, and personal interaction and networking that make attending the FBA conventions in person such a valuable experience. We hope you will join us in Charleston in person in September to enjoy South Carolina’s hospitality at its finest! 

1The South Carolina Encyclopedia 156 (Walter Edgar ed. 2006).

Christie Companion Varnado

Chair of the South Carolina Chapter’s 2022 Annual Meeting & Convention Committee

Cocktail Party

Kick off your time in historic Charleston with an opening cocktail party. Guests have the option to arrive early and join a brief walking tour of the “Four Corners of Law,” a crossroad of four historic buildings representing federal, state, municipal, and ecclesiastical law, led by local attorneys, historians, and guides. Date: Thursday, September 15 Time: 5:30 p.m.–7:30 p.m. (tour buses start loading at 5:00 p.m.) Location: South Carolina Society Hall (72 Meeting St., Charleston, SC 29401) Featuring remarks and official proclamation by Charleston’s Mayor John Tecklenburg

Convention Reception

Convention attendees are invited to an evening reception evoking the spirit of the Charleston Renaissance of the 1920s hosted by the South Carolina Chapter. Located three blocks from the hotel on iconic King Street, the William Aiken House is a local treasure with 19th century architectural charm, scenic grounds, and museum-caliber artwork and antiques. Date: Friday, September 16 Time: 6:00 p.m.–9:30 p.m. Location: William Aiken House (456 King St., Charleston, SC 29403)

Preview of General Sessions

Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of America

Judge Gergel will discuss the 1946 acquittal by an all-white jury of a South Carolina police chief for the brutal beating and arrest of a decorated African American veteran and its impact on President Harry Truman’s order to end segregation in the U.S. armed forces and on presiding federal court judge J. Waites Waring’s pivotal dissent in the 1951 case of Briggs v. Elliott, which became the model for the Supreme Court’s unanimous decision in Brown v. Board of Education.

Unified: How Our Unlikely Friendship Gives Us Hope for a Divided Country

South Carolina natives and friends Sen. Tim Scott and Rep. Trey Gowdy, despite having very different backgrounds, discuss how our alienation from each other is destroying the fabric of society and offer hope that through embracing differences, we can heal our divided country.

Grace Will Lead Us Home: The Charleston Church Massacre and the Hard, Inspiring Journey to Forgiveness

Pulitzer Prize winning journalist and author Jennifer Berry Hawes will discuss her book Grace Will Lead Us Home, which examines the horrific 2015 mass shooting at the Mother Emanuel AME church in Charleston and its aftermath, including the forgiveness offered to the perpetrator by the victims’ family members at his arraignment hearing.

Preview of CLE Sessions

Access to Legal Representation and the Importance of Pro Bono Representation in Immigration Proceedings

This panel will discuss the importance and value of pro bono representation and how the Executive Office for Immigration Review encourages and fosters pro bono representation.

Artificial Intelligence and Civil Rights: Impacts on Employment, Housing, and Criminal Justice

Although artificial intelligence and machine learning technologies are changing the world, they also create concerns about how technologies developed under the Silicon Valley ethos fit within the framework of existing civil rights laws. A panel of leading experts will examine the legal issues and current and impending regulatory trends from the use of these cutting-edge technologies.

Coming Soon to a Courthouse Near You? ESG Disclosure Requirements, Risks, and Strategies Throughout the Supply Chain

Corporate Environmental, Social and Governance (ESG) reporting and disclosure obligations are becoming increasingly important considerations for risk managers and litigators. Panelists will discuss issues relating to the litigation implications of the rule and prospects for legal challenge of the final rule.

The Defense and Relator's Counsel Discuss Getting a Case Resolved

This panel will review the resolution process of False Claims Act cases from the perspectives of the defense and relators, and consider the possibility of impending government intervention.

Scamming Governments: Oversight and Accountability Institutions

As headlines begin to tell the story of corporate scams, this panel will dig further into the establishments and processes that seek to protect government funds both at home and abroad.

The Privacy Mindset of the U.S. v. EU: Implications for U.S. Businesses in a Post-COVID Era

This panel will examine what U.S. businesses with global reach must do to comply with privacy requirements in the United States and in Europe. With a focus on the tech sector, panelists will discuss the due diligence requirements and the latest litigation and review a recent case analysis from the perspective of a local South Carolina-based tech company.

Twelve Angry Youtes Kill a Mockingbird, Tweet Tweet

Judge Joseph F. Anderson Jr. draws on his 36 years of experience as a trial court judge to present a refresher course on trial advocacy techniques, featuring valuable lessons from some of the most memorable courtroom movies.

Under Surveillance: How ICE's Radically Expanded Use of Enhanced Technology Has Upended Privacy Throughout the United States

With issues found in the May 2022 report from the Georgetown University Center on Data and Privacy, this panel will review the type of information that is obtained from immigrants detained or monitored by the Department of Homeland Security. Panelists will recommend strategies for attorneys to use in their ethical obligation in advisement of their clients.

Unwanted Government Attention: Bankruptcy Issues That Will Draw Objections From U.S. Trustees and State Attorneys General

As Chapter 11 filings rise, there’s an anticipation for a busy year within the bankruptcy practice in 2023. This panel will review “first priority” matters for governmental entities and provide strategies for practitioners to avoid government objection.

Registration packages and information available online!

www.fedbar.org/event/fbacon22

Early-bird registration ends Friday, August 19!

PREMIER SPONSOR

PRESIDENTIAL INSTALLATION SPONSOR

THOUGHT LEADERSHIP

FEATURED RECEPTION SPONSORS

DESTINATION PARTNER

WELCOME

EVENT PARTNER

Clement Rivers, LLP – Polales Horton & Leonardi LLP – Richardson Thomas – Taft – Turner Padget – Wyche Professional Association

WI-FI SPONSOR

Morgan and Morgan

SESSION SPONSOR

Barnwell Whaley Patterson & Helms LLC – Charleston County Bar Association – Goings Law Firm, LLC – Rachel V. Rose - Attorney at Law PLLC – Veritext Legal Solutions

BREAKFAST + BREAK

BakerHostetler – Bartol Law Firm, P.C. – Bloodgood & Sanders, LLC – Grove Ozment – Hodge & Langley Law Firm – Howell Linkous & Nettles, LLC – Jackson Lewis P.C. – Vanderbloemen Law Firm, P.A. – Walker Gressette & Linton, LLC – Wills Massalon & Allen LLC

HOTEL INFORMATION

Francis Marion Hotel

387 King Street Charleston, SC 29403

RESERVATIONS

Booking: Call (843) 722-0600 or 1 (877) 756-2121 and reference the FBA Annual Meeting & Convention group to book discounted reservation. All reservations must be guaranteed and accompanied by a first night room deposit or guaranteed with a major credit card.

Group Rate: $269/night (plus state and local taxes)

Cut-off Date: Reservations must be made no later than 5:00 p.m. ET on Friday, August 12. Any reservations received after the cut-off date or until the block is full, whichever is sooner, will be accepted directly by the hotel based on room-type and rate-available basis.

SPONSORSHIP OPPORTUNITIES AVAILABLE!

Join our distinguished list of sponsors who help make both long-standing and new FBA conferences and seminars possible. Contact Barbara Bienkowski (sponsor@fedbar.org) to secure your sponsorship today!

All AboutCharleston!

Information courtesy of Explore Charleston.

Cuisine

Charleston cuisine is all about celebrating our seafaring and agrarian cultures; reveling in the abundance gathered from our waters, gardens, and fields; and being embraced by some of the world’s most gracious hospitality.

History

In the Lowcountry, history is a connection to the past that lives in the hearts of locals, is apparent in regional traditions, graces the facades of homes, punctuates the vernacular, and seasons the food. In fact, Charleston celebrated its 350th birthday in 2020.

Explore Charleston

First-Timer’s Guide

Outdoors

The Charleston area—with its 90 miles of coastline—has considerable eco appeal. Paddle through a salt marsh at sunrise, hit the golf course midmorning, build a sandcastle after lunch, sail at sunset— Charleston’s soul-stirring landscapes lure everyone outdoors.

Shopping

With an eclectic mix of local boutiques, luxury retailers, art galleries, and independent artisans and clothiers, Charleston offers something special for everyone.

Family

From hands-on history lessons and miles of sandcastle-ready beaches to museums and sweet treats, there are so many things to do in Charleston with kids.

Arts & Culture

Charleston has been a hub for visual and performing arts dating back as far as 1736 with the completion of the nation’s first permanent playhouse, Dock Street Theatre, to the modern-day internationally acclaimed Spoleto Festival.

Halls Chophouse • 434 King Street

High-end family-owned steakhouse with amazing white-glove service. A favorite for holidays and special occasions. Live music on weekends and a packed downstairs bar.

Charleston Grill • 224 King Street

Fine dining with exquisite Lowcountry cuisine and renowned wine offerings, the menu boasts the world’s best fare—from the local catch to artisan meats. Offers a luxurious setting with dark woodpaneled walls and live jazz.

FIG • 232 Meeting Street

Enjoy fine dining at this James Beard award-winning restaurant. Upscale takes on classic southern food with influences from all over. FIG offers a chic and cozy atmosphere and is a local favorite. The Ordinary • 544 King Street

Modern twist on a classic southern oyster hall with upscale atmosphere and bustling dining room and bar. Wines are specially curated for every taste. (Book reservations four weeks out; limited seating.)

Chez Nous • 6 Payne Court

Fine dining in a quaint, romantic spot tucked away on a side street; offers amazing French-inspired cuisine with a small menu that changes daily.

Husk • 76 Queen Street

Celebrated southern food sourced daily from family-owned, artisanal farms and purveyors. Emphasis is on heirloom products and methods.

The Grocery • 4 Cannon Street

Neighborhood corner bistro in casual setting; hand-crafted dishes in an open kitchen, great for larger parties.

167 Raw • 193 King Street & 289 East Bay Street

Seafood, seafood, and more seafood in an upscale setting; two locations.

Lenoir • 68 Wentworth Street

Award-winning chef and TV personality Vivian Howard serves up traditional southern dishes with a modern take in a bustling bistro with outdoor seating.

Melfi’s • 721 King Street

Italian eatery showcasing fresh pasta, classic dishes, large salads, and plates to share. Malagon • 33 Spring Street

European café serving Spanish tapas and cured ham selections. Menu includes dozens of options, including the not-to-be-missed “bomba de la Barceloneta”—a pork-stuffed mash potato bomb with tomato and aioli.

Bertha’s Kitchen • 2332 Meeting Street Road

Soul food at its best—fried chicken, stuffed porkchop, fried fish, lima beans, collards, and on and on. Counter service. Rodney Scott’s BBQ • 1011 King Street

Whole hog smoked South Carolina barbeque, smoked chicken, and catfish, along with sides of mac ‘n cheese, collards, beans, coleslaw, and Ella’s banana puddin’. The real deal. Take-out, eat-in, or drive-thru.

Callie’s Hot Little Biscuit • 476½ King

Street

Southern biscuit takeout shop; biscuits filled with country ham, jam, and pimento cheese, plus a range of changing treats; open 8:00 a.m.-2:00 p.m.

Graft Wine Shop & Bar • 700b King

Street

Posh wine bar with tasting options, snacks, and retail shop.

Bennett Hotel • 404 King Street

Camellias—a champagne lounge inspired by the look of a pink “Faberge jewel box.” Decadent by-the-glass offerings, small bites, and desserts.

La Patisserie—popular morning baker à la Paris; take n’ go (or dine in ) fine French pastries and coffee selections. Ink Rooftop & Lounge • 565 King Street

Night clubs in Charleston are hard to find. If that’s your scene, this is the place to go. South-Beach-inspired vibes with sushi, wings, tacos, and exotic cocktails.

Charleston Farmers Market

Saturdays 8:00 a.m.-2:00 p.m. at Marion Square, the park between King & Meeting and across from the Francis Marion Hotel. Veggies, fruit, gifts, food trucks, and more.

About the Cover Artist

BY BETH RICHARDSON

Walking through the historic city of Charleston, S.C., one is immediately transported to another time and place. This lovely city, surrounded by centuries old buildings, streets of cobblestone and ballast, palm trees, and ocean breezes is covered by a brilliant blue sky—a sky that turns into the magical, vibrant colors of a sunrise or sunset or the deep raging color of an impending storm. The intensity of those colors has drawn appreciative tourists, locals, and “natives,” into the Anglin Smith Fine Art gallery for the past 21 years. The large gallery windows, set along the corner of Queen and State streets, filled with paintings of the marshes and the beaches, the street, and the buildings beyond, and of course, that big colorful sky, beckon passersby to enter this magical place.

It is here that Jennifer Smith Rogers, a co-owner of the gallery with her mother and twin sister, can frequently be seen with her easel propped up in the back corner. Painting scenes of Charleston rooftops and buildings, or from her travels along the East Coast, the Tennessee countryside, San Francisco, or New York, or further afield in Italy or Mexico, Jennifer liberally splashes the canvas with colorful, confident brushstrokes, creating the dramatic pictures for which she has become known.

Born in Columbia, S.C., to parents Betty Anglin, already an established artist, and Cody, an attorney, Jennifer and her two twin siblings (yes, triplets!) entered a home surrounded by art. Additionally, Cody, who served as president of the South Carolina Trial Lawyers Association and governor of the American Trial Lawyers Association, presented many opportunities to travel to national conferences with his young family. Betty jumped on those trips to introduce her children to galleries and museums wherever they found themselves. It is not surprising that all three children were influenced

by the excursions. Now well established in the art world, both Jennifer and her sister Shannon are highly regarded painters like their mother, Betty Anglin Smith, and brother Tripp is an accomplished photographer; works by each of them are exhibited in the gallery and are collected both nationally and internationally.

Whether painting landscape or architecture, I aim to capture a dramatic sense of light and mood. My paintings are a visual reaction of my emotional response to my surroundings. Night scenes, panoramic vistas of the city’s rooftops, and big, dramatic skies are recurrent themes in my work. Painting with a sense of immediacy and exaggerating color and using painterly brushstrokes categorize my style as impressionistic realism." — JENNIFER SMITH ROGERS

Jennifer is a proud Clemson Tiger, where she began her college career studying architecture. After one year, she discarded that pursuit in favor of studio art and graduated three years later with a BFA degree. Although she may have abandoned it academically, architecture is never far from Jennifer’s inspiration, as she is especially drawn to the buildings and surrounding landscapes in which she finds herself. It is the reflection of the light on those structures that moves her, especially at the end of the day when the contrast of light and dark is most dramatic. She refers to her style as “impressionistic realism,” utilizing painterly brushstrokes and local color to capture the immediacy of the moment.

Jennifer’s paintings are widely collected by individuals; business establishments, such as the former McCrady’s Tavern in Charleston, S.C.; the James F. Martin Inn at Clemson University; and corporations, including The Walt Disney Company, Charleston Gaillard Center, The Medical University of South Carolina, and Ethyl Corporation.

Jennifer is a member of the Plein Air Painters of the SouthEast, Oil Painters of America, and the American Impressionist Society. She also serves on the board of the Clemson Architectural Foundation, and she is represented by Anglin Smith Fine Art.

Only a Free Man Can Walk With a Judge: 10 Years of Federal Drug Court in the District of South Carolina

D. JOSEV BREWER

.S. Attorney Bill Nettles asked her to pass

Uthe syrup. Reaching across the country inn table, Judge Brucie Hendricks obliged. Nettles probably made some obvious quip about escaping “sticky situations” in the exchange. Nettles is like one part Robert Kennedy and one part Tiger King. Many miles from the District of South Carolina, the team members—including the district’s chief probation officer, Dickie Brunson; one of his officers, Lori Johnson; Ann Walsh, an assistant federal public defender; and Nathan Williams, an assistant U.S. attorney—contentedly ate their New England breakfast. Although all the players were present, there was no adversarial system, at least that morning, in their family-style meal. After breakfast, they took a quick team photograph under the changing leaves and then headed to meet their counterparts at the federal court in the District of New Hampshire.

Only months earlier, in the spring of 2010, David C. Norton, chief judge for the District of South Carolina, had asked Judge Hendricks to assemble an exploratory team of stakeholders to design the district’s first ever drug court.1 Hendricks, at the time a federal magistrate but now a district judge herself, admits, “I didn’t even really know what a drug court was, honestly. There was hardly any precedent for them in the federal system. But, I was so tremendously honored to be given this blank slate.”2 Some diversionary opportunity had long been an aspiration of the judges in the Charleston Division, most notably Judges Michael Duffy and Sol Blatt. But, the traditional view among many federal practitioners had commonly been that federal defendants, for a variety of reasons, were not suitable candidates for diversionary opportunities. Upon his appointment, however, Nettles had gone to Norton to discuss starting a drug court, and they agreed that the climate was increasingly right.3 When Norton approached Hendricks about facilitating the program, she recalls him saying, “If we can save one life, it will be worth our efforts.”4 His words would be prescient.

Hendricks, not known for passivity or procrastination, launched a full-frontal assault on her new mandate, calling upon everyone she knew, however remotely connected to drug court programming. Providently, two of the nation’s highest-profile state drug court judges—Judge Charles Condon and Judge Chuck Simmons—happened to sit in South Carolina. They both had overseen drug courts for many years and had substantial standing with the National Association of Drug Court Professionals (NADCP), the country’s leading resource on national drug court standards and best practices; indeed, Judge Simmons was on its board. Hendricks also reached out for guidance from U.S. District Judge Keith Starrett, who ran a reentry court in the Southern District of Mississippi, especially with respect to the “10 Key Components” of the drug court model, an essential quality of effective programs.5 Judge Hendricks required her team to participate in formal training with the National Drug Court Institute, and that early team spent countless hours performing the necessary literature review in preparation.

So, in its final stages of due diligence, the South Carolina contingent had flown to New Hampshire to meet with U.S. District Judge

Former U.S. Attorney Bill Nettles is flanked by U.S. District Judge David C. Norton and former U.S. Attorney General Holder at a BRIDGE graduation. Nettles and Judge Norton were the program’s early visionaries.

Joseph Laplante and the members of his drug court program, the LASER Docket, to observe firsthand a federal drug court in action. At that time, LASER was one of only seven federal front-end or diversionary drug court programs in the entire country. In their meeting, the South Carolina team saw the complicated interplay between the U.S. Attorney’s Office, the Federal Public Defender’s Office, and the judiciary as they attempted to maintain their unique roles and obligations in the system while submitting to a more cooperative one. As the team sat informally discussing the weekly progress of the LASER participants, the members were not afraid to disagree about how to handle defendants not performing well or the process they were due in potential sanction. The New Hampshire team confessed that the interagency conversation had taken nearly two years to resolve differing views as to procedure and that it remained a constant work in progress. Judge Laplante made it clear that at some point you just had to “jump,” which, for a lifelong Lowcountry surfer like Hendricks, was a comfortable invitation. She has been fond of aggressively citing the Voltaire aphorism, “The best is the enemy of the good.”

So, within months, on Nov. 10, 2010, the BRIDGE program, named for the iconic bridge leading into downtown Charleston, was established by Order of Judge Norton.6 Cribbing heavily from the design of the LASER program and the best practice standards of the NADCP, the District of South Carolina adopted a three-phase program that would focus on the participant’s sobriety first, stability second, and, finally, their independence. Its curriculum mandated ongoing substance abuse programming, concomitant counseling, work or vocational rehabilitation, financial literacy, and physical fitness and well-being.7 Successful completion of the program would likely qualify the participant for a noncustodial outcome, although it was not guaranteed.

This article was originally slated for publication in 2020, which would have commemoratively corresponded with the program’s 10year anniversary. COVID-19, of course, had other plans.

What Is Drug Court?

“Drug court” is an unfortunate misnomer. Indeed, and respectfully, it was likely some strategic misstep in the 1980s to have adopted the name in the first instance, and it probably counts as the single largest impediment to its own success, especially in the federal system. The phrase “drug court” implies two incorrect things. First, that it involves drug offenses exclusively. And, second, that it is any kind of court at all. The former is wrong because it is too limiting, and the latter is wrong because it implies something potentially ultra vires. The two words taken together have created a lot of confusion and a sense of philosophical toxicity for many jurists and prosecutors alike.

Truthfully, “drug court” is simply intensive pretrial supervision and, therefore, is procedurally and legally consistent with the obligation to order bond conditions and supervision already incumbent upon judges in every court in this country, both state and federal. In this important sense, therefore, it is not something new. It is an intensification of the very thing most judges and prosecutors prefer—oversight.

Indeed, drug court in the federal system is precisely an effectuation of the district court’s bond authority already explicit in Section

3142 of Title 18 of the United States Code.8 That section anticipates that supervision might include substance abuse treatment, psychiatric treatment, educational programing, employment, and other special conditions—the precise requirements imposed on participants of drug court.

And, drug court is not ever exclusively for drug offenders. It involves supervision for drug or controlled substance addicted defendants, whose underlying offense might literally be of any kind, so long as there exists a nexus between the substance addiction or abuse and the criminal misconduct. So, drug court participants may have committed property or financial crimes, like mail theft or counterfeiting, typically in subsidization of their habit, in addition to traditional drug-related or firearm offenses.

Critically, the drug court approach recognizes two important social-science truths. First, substance-addicted defendants will routinely not be able to control their addiction and will repeatedly violate supervision or otherwise recidivate without a kind of programming that makes some allowance for inevitable failures in the recovery process.9 And second, a system of swiftly applied sanctions and rewards, administered by a judicial officer, creates a potent incentive structure that, when combined with traditional clinical rehabilitation, produces enduring sobriety.10 But, it is not easy.

Melia Carney, one of the programs earliest graduates, recalls, “I felt really overwhelmed. I thought the Judge and the team were being over the top and mean. I had the mind of a child.”11 But Carney also fondly remembers that as a result of the program, “I grew up.” Essential to that maturation was the close involvement of U.S. Probation Officer (USPO) Lori Johnson, also present at that foreshadowing fall breakfast in New Hampshire. Although the distinguished first, Johnson is only one of numerous probation officers in the District of South Carolina who have worked tirelessly to supervise drug court defendants through the years; while the judge is the program’s teeth, the USPO is undoubtedly its muscular jaws. Probation officers closely supervise the participants, ensuring their daily adherence to program requirements and fielding an almost endless stream of indecipherable text communications around the clock from ever-needy participants. Squarely not in the job description, however, was “Saturday morning meditation and yoga.”12 But, according to Carney, Johnson would take her to yoga classes every weekend throughout much of her time in the program, a practice Carney maintains even to this day. Subsequent to her graduation, Carney, a one-time heroin conspirator, has been entrusted by a major retail store with the role of asset protection manager, a particularly poignant validation of the woman she has become. She reflects, “I’m just always in a good mood now.”

William, a graduate of the BRIDGE Court, shares with U.S. Attorney General Holder and U.S. District Judge Brucie Howe Hendricks before a packed gallery about what it means to “walk with a judge.”

Westward Expansion

In 2014, the judges of the District of South Carolina voted to make the BRIDGE program available districtwide, with one program in each of the four major divisions. That decision was made after some expected disagreement as to the propriety of drug court and the obligation of any particular judge to participate. Typical concerns included the seriousness of federal indictments, the basic legal authority of judges to oversee the program, the availability of pretrial diversion, and the demand on precious judicial resources. Those concerns have been shared by federal stakeholders for many decades, but years of data, borne out of the experiment in state court programs, has offered increasing belief that those successes might be replicated in the federal system.

In a thorough and widely disseminated memorandum, Chris Schoen, an assistant U.S. attorney, previously with the federal court, had chronicled many of the salient arguments in favor of federal programs.13 Most notably, there was significant evidence that drug courts might actually offer the most potential benefit in the federal system. First, notwithstanding the average seriousness of federal indictments, the U.S. Sentencing Commission’s own data indicates that 40.6 percent of all federal defendants were a criminal history category I in 2021 and that, therefore, there were potentially numerous nonviolent offenders with suitable backgrounds for a diversionary opportunity.14 Second, and most importantly, the avoided costs of successful federal drug court defendants were not conceptual; they offered real and actualized savings. Whereas many of the state drug court participants would be otherwise facing probationary or timeserved outcomes even in the absence of any drug court opportunity, nearly all the potential federal defendants would be facing actual and costly incarceration.15 Of the 65,848 defendants convicted in U.S. district court in 2020, more than two-thirds (68 percent) were sentenced to prison.16 The median term of incarceration imposed on those convicted of drug offenses in federal court was 33 months,17 whereas the median time served by those convicted of felony drug offenders in state court in 2010 was 13-14 months.18 Any successes in the federal system, therefore, would produce additional and real savings relative to outcomes in the state system.

U.S. District Judge Mary Lewis, who, in conjunction with now U.S. Circuit Court of Appeals Judge Michelle Childs, oversees the BRIDGE program in the Columbia Division of the District of South Carolina, had her own early reservations. While enthusiastic about the invitation extended by Judge Hendricks and the program’s eventual success, she admits that drug courts have a “limited place in the federal system and that it shouldn’t be easy to qualify.”19 She empathizes with the reservations of some of her fellow jurists. But, Judge Lewis has witnessed firsthand the tremendous stories of recovery and has seen fulfilled lives, reunited with families, and gainfully employed in culinary arts and other industries. She and Judge Childs, who was recently elevated to the U.S. Court of Appeals for the D.C. Circuit, represented a particularly exceptional example of how a standardized program like BRIDGE can still be tailored

Former U.S. Attorney General Eric Holder looks on at a BRIDGE Court graduation from the ceremonial courtroom of the historic federal courthouse in Charleston, S.C.

for the particular needs of a division, locale, or jurist. It is rare for two Article III judges to preside over a drug court together, and the participants benefited from the unique contribution of both. Judge Lewis confesses that staff meetings, where the drug court team must resolve any problems that might have arisen since the last drug court hearing, are often difficult and that “Judge Childs is far more patient!”20 “But we always showed a unified front; there was no territorialism,”21 Lewis states. The net effect was a boon for the participants. Judges Childs and Lewis epitomized the delicate balance between the grace and consequence the program requires.

The Data Is In

The data corroborates that the program has made a difference. In 2017, Clemson University performed a Retrospective Cost-Benefit Analysis of the South Carolina BRIDGE Program. 22 That study concluded that, based on the fixed cost of $31,977.65 to incarcerate a federal inmate, the BRIDGE program, districtwide, had created a net savings of $3.3 million after accounting for professional and operational costs to conduct the program.23 Those savings equated to over $47,000 in savings per participant, including both graduates and nongraduates.24 With respect to recidivism, based on internal data collection, over the past 10 years, less than 5 percent of BRIDGE graduates have reoffended. Nationally, 79 percent of formerly incarcerated individuals reoffend after six years.25

The effectiveness of the BRIDGE program is consistent with decades of research in the state system. “The effectiveness of Drug Courts is not a matter of conjecture. It is the product of more than two decades of exhaustive scientific research.”26 Indeed, “[m]ore research has been published on the effects of adult Drug Courts than virtually all other criminal justice programs combined.”27 There is evidence that drug courts produce between $2.21 and $3.36 in savings for every $1.00 invested.28 And, the best programs have “reduced crime by as much as 45 percent over other dispositions.”29

Walking With a Judge

Judge Hendricks got the news that same day. Although regularly appointment viewing, the ceremonial courtroom overlooking Meeting and Broad Streets in Charleston, S.C., was starting to fill particularly early. The BRIDGE was set for a double graduation that afternoon, but probation informed Hendricks that one of the graduates had tested positive. Always a pall cast whenever a participant relapses, it was more complicated this particular day. Robbie Shumate, the clerk of court in Charleston, had been rushing around for weeks coordinating the logistics for a visit by Attorney General Eric Holder. Judge Hendricks reflects,

It was the ultimate lesson in accountability and the reality of drug court. Nothing is brushed under the rug. You have to meet your maker no matter who was in town, including, or maybe especially, the Attorney General of the United States. It is one of those days you don’t want someone to relapse. But, that is what happens in drug court. The range was pretty

powerful. He got to see one success and one disappointment and how our team handled both. It was the entire spectrum of drug court experience all at once.

But, Hendricks emphasizes, “The one who did graduate delivered a healthy drug court baby. It was like a double reward.”30

In the crowd was William White, an alumnus of the program. As federal drug court participants go, White’s background was more complicated. But, he had been a superstar participant during his time in the program and a superstar advocate after his successful completion. White routinely came back to support the progress of new participants and was always available to share his experience to interested audiences, including visits by both federal judges and U.S. attorneys from across the country.

As was her custom, Judge Hendricks would call on any graduates in attendance to offer a few words of encouragement to the new graduate, and she invited White that day to come forward from the gallery and into the well where she stood near the attorney general having come down from the bench. White, in his affable Gullah, talked easily about his experience, what had mattered to him, and the hopes he had for the newly minted graduate. He shook the attorney general’s hand.

“Do you have any last thoughts?” Judge Hendricks asked. “Well Judge Hendricks, I just appreciated all those times we walked the bridge together.” A fitness fanatic herself, Judge Hendricks had brought to bear the entire weight of modern literature on the correlation between healthy exercise habits and sobriety, often encouraging the participants, under the care of a physician, of course, to participate in regular physical activity. And, about once a quarter, all the participants and the drug court team, including Judge Hendricks, would walk together, unsupervised by marshals or any escort, across the Ravenel Bridge.

Judge Hendricks asked him why he appreciated walking the bridge together. He had probably said it some other time, but it was like extemporaneous poetry to everyone in attendance that day. He paused for a second and said, “Because only a free man can walk with a judge.” It has become a sort of mantra.

But, it has not all been so quixotic. One participant absconded literally the same day she was admitted into the program in a premeditated escape. Another participant was serendipitously observed by a drug court team member at an outdoor concert, where the participant was holding aloft an adult beverage drunkenly yelling, “Warnky’s back!” And, simply put, over half of participants do not complete the program and are returned to normal prosecution.

Moreover, the court has struggled at times to fulfill one of the most basic best practice recommendations of the NADCP—that drug courts strive for racial and demographic diversity.31 Drug courts are, of course, in part, a response to some of the disproportionalities in the system with respect to certain racial minorities and, therefore, should be a source of redress in this regard.32

State of the Union

Of course, the BRIDGE is only illustrative. According to the Federal Judicial Center (FJC), there are approximately 30 federal pretrial diversionary programs, which include the full menu of Alternatives to Incarceration (ATI), from drug to veterans to youth offender courts. That number has remained relatively constant over recent years after a sort of Cambrian explosion from 2008 through 2015. Christina Ruffino, an education specialist with the FJC, has said that there has “been a slowdown in recent years and that we may be reaching some saturation.”33 “Judges and probation officers are still not receiving formal docket and caseload credit for their work with these programs and that may have chilled some additional adoption,” she theorizes. But, Ruffino emphasizes that those involved are “very passionate,” and she believes the number of existing drug courts represents a healthy status quo while more is done to confirm their usefulness in the federal system.

The drug court program in the District of South Carolina has been a gateway, in a manner of speaking. The district also launched a reentry program for supervised release supervisees called REAL Court, modeled on the same basic tenets. More recently, Judge Hendricks has piloted a new opioid initiative called ACT Force, which is an interagency program that coordinates the resources of law enforcement, medical providers, and other not-for-profit agencies in response to overdose emergencies in the Charleston area. In addition to numerous other dignitaries and experts, it counts Michael Botticelli, President Obama’s drug czar, among its advisors. ACT Force is replicating a New York City program, which relies on sophisticated software to monitor crisis incidents and agency responsiveness.

A Dream Realized

Judge Hendricks handed him his graduation coin and a signed picture of various bridges across South Carolina, as had become custom. His graduation was more than a recognition of recovery. It was an authentic miracle. The gallery was again filled with friends and family and court personnel and community mentors and so many that had supported Nicholas Patazio along the way. Fourteen months earlier, on the very same day he entered drug court, he had been rushed to the emergency room, having nearly fatally overdosed on heroin. And now, here he stood, sober for all that time since, and with a young child on the way as well—Judge Norton’s simple aspiration fulfilled.

But it was not just one life saved. There have been over 60 graduates in the first 10 years in the District of South Carolina, and even more in the most recent two. Countless other participants have been affected, even if not fully graduated, and hundreds more across some 30 other federal districts. A recent study of seven front-end federal programs involving in excess of 500 participants total found that completion of such programs was “associated with improved outcomes, such as increases in employment and fewer positive drug tests, and a lower probability of arrest.”34 That study focused largely on the performance of participants while on pretrial supervision relative to pretrial supervisees not in such programs.35 It found that participants and graduates violated at a lower rate and were “significantly less likely to receive a prison term that matched their counterparts” who were not participants in front-end programming.

We Are All Witnesses (and Ambassadors)

The best case for drug court is the thing itself. To observe one is to be persuaded, almost uniformly. That, of course, cannot be accomplished in print, and so a transcript must suffice. In 2014, then Attorney General Loretta Lynch visited the Pretrial Opportunity Program (POP) in the Eastern District of New York. She heard numerous testimonials from program graduates and was addressed by U.S. District Judge John Gleason, a vocal and active champion for various ATI. Emily L. shared the following:

I was a child born into addiction. My mom was an alcoholic, my father is still a current and active crack addict. I was brought up in the streets of Brooklyn … In 2002, this is how it started for me becoming addicted to cocaine … I had my five-week old baby and I went into my house and I found my mom in the house deceased, decomposed. And I thought my life was over. That’s why I turned my life over to drugs … and it got worse. And then the best thing that could have happened to me was July 27th, when I was arrested for these drug charges that I had in federal court. That was the best thing that happened to me.

. . . My lawyer came to see me and he said, I think it’s possible to get your bail back, but it’s only under one circumstance; you have to agree to go into [the Pretrial Opportunity Program (POP)].

. . . I came out, I got my GED … And I got my CDL … My eyes is going on the prize right now, I’m looking for a job that I can get a pension. When I get old, I can reap the benefits.

. . . This POP program has done so much for me. And I did what

I had to do so you guys won’t take it from nobody else that do

deserve it that comes behind me. It works, and it’s people that do want to change their life, but they just don’t know how. Sometimes that silver bracelet will make you change your life, just one time, that’s all you need.36

U.S. Attorney Nettles would often emphasize that exact point to the early BRIDGE graduates in Charleston, saying, “Others are counting on you. You are ambassadors of this program. Don’t screw it up.”

Drug court is a little like a family-style breakfast under changing leaves. Cantankerous and messy. Sticky even. Something old and something new. A celebration. You might be asked to reach across the table. And, someone will definitely have to be excused to provide a “sample” at some point. And even though the season transitions, the sentiment does not: to identify outcomes that are “sufficient but not greater than necessary, to comply with the purposes” of sentencing.37 For many federal defendants, drug court is that sufficiently sufficient result. And, in this sense, drug courts expand the discretion of jurists to fashion a precisely tailored remedy. It is an aggrandizement of their options and not a limitation as some would fear. The District of South Carolina and sister districts are testimony to that experience over these many years. And others are counting on us as ambassadors not to screw it up. 

D. Josev (Joe) Brewer is a former assistant U.S. attorney for the U.S. Attorney’s Office in the District of South Carolina. He left the Department of Justice to start his own practice, The Law Office of D. Josev Brewer, focusing on federal and state criminal defense and complex civil litigation. Brewer was previously a business litigation associate at the international law firm of Hunton & Williams LLP. Additionally, he was a two-time federal law clerk to Hon. P. Michael Duffy and Hon. Brucie Howe Hendricks. In those capacities, he helped prepare the historic Charleston County Voting Rights Act case and develop the first federal pretrial drug court in the District of South Carolina. ©2022 D. Josev Brewer. All rights reserved. 1Telephone interview with Judge Bruce H. Hendricks, U.S. District Judge (Nov. 13, 2019). 2Id. 3Id. 4Id. 5Douglas B. Marlowe, Research Update on Adult Drug Courts 3, U.S. Dep’t of Just., Off. of Just. Programs (Dec. 2010). 6viIn re Pilot Bridge Program 2:10-mc-5008-DCN (D.S.C. Nov. 10, 2010). 7United States Probation and Pretrial Servs., Dist. of South Carolina, Greenville Division Bridge Program, https://www.scp.uscourts.gov/greenville-division (last visited July 19, 2022). 818 U.S.C. § 3142. 9See John A. Bozza, Benevolent Behavior Modification: Understanding the Nature and Limitations of Problem-Solving Courts, 17 Widener L. J. 97, 111 (2007). 10See id. 11Telephone interview with Melia Carney, BRIDGE Graduate (Nov. 25, 2019). 12Id. 13Chris Schoen, Interim Report on the Bridge Drug Court Program (on file with author and J. Hendricks). 14United States Sent’g Comm’n, Fiscal Year 2021 Overview of Federal Criminal Cases 7 (Apr. 2022), https://www.ussc. gov/sites/default/files/pdf/research-and-publications/researchpublications/2022/FY21_Overview_Federal_Criminal_Cases.pdf. 15Laura Baber, Kevin Wolf, Christine Dozier, & Roberto Cordeiro, A Viable Alternative? Alternatives to Incarceration across Seven Federal Districts, Fed. Prob. 83 No. 1 (2018) (analyzing sentencing outcomes relative to federal defendants not participating in drug court programs). 16Mark Motivans, Federal Justice Statistics, 2020 at 11, Bureau of Justice Statistics (May 2022), https://bjs.ojp.gov/content/pub/ pdf/fjs20.pdf. 17Id. 18E. Ann Carson, Prisoners in 2013 at 2, Bureau of Justice Statistics (Sept. 30, 2014), https://bjs.ojp.gov/content/pub/pdf/ p13.pdf. This annual report has not included an updated median sentence table since the 2014 addition. 19Telephone interview with Judge Mary G. Lewis, U.S. District Judge (Nov. 26, 2019). 20Id. 21Id. 22Lori Dickes, Retrospective Cost-Benefit Analysis of the South Carolina Bridge Program (2017) (on file with author). 23Id. 24Id. 25Mariel Alper, Matthew R. Durose, & Joshua Markman, 2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014) at 1, U.S. Dep’t of Just., Off. of Just. Programs (May 2018), https:// bjs.ojp.gov/content/pub/pdf/18upr9yfup0514.pdf. 26Marlowe, supra note 5, at 3. 27Id. 28Avinash Singh Bhati, John K. Roman, & Aaron Chalfin, To Treat or Not To Treat: Evidence on the Prospects of Expanding Treatment to Drug Involved Offenders, Urban Inst., Just. Pol’y Ctr. (May

2008), https://www.ojp.gov/pdffiles1/nij/grants/222908.pdf. 29West Huddleston & Douglas B. Marlowe, Painting the Current Picture: A National Report on Drug Courts and Other Problem-Solving Court Programs in the United States 9, Nat’l Drug Ct. Inst. (July 2011), https://www.ndci.org/sites/default/files/nadcp/PCP%20 Report%20FINAL.PDF. 30J. Hendricks, supra note 1. 31Nat’l Ass’n of Drug Ct. Pros., Adult Drug Court Best Practice Standards Vol. I at 11 (2018), https://www.nadcp.org/ wp-content/uploads/2018/12/Adult-Drug-Court-Best-PracticeStandards-Volume-I-Text-Revision-December-2018-1.pdf. 32See id. 33Telephone interview with Christina Ruffino, Fed. Jud. Ctr., (Dec. 9, 2019). 34Laura Baber, Kevin Wolf, Christine Dozier, & Roberto Cordeiro, A Viable Alternative? Alternatives to Incarceration across Seven Federal Districts, Fed. Prob. 83 No. 1 (2019). 35Id. 36Transcript of Record at 29-31, Presentation of Alternatives to Incarceration in the Eastern District of New York (E.D.N.Y. Oct. 30, 2014) (emphasis added). 3718 U.S.C. § 3582 (2018).

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Early History of South Carolina and Its Federal Court (1526-1886)

IRA COHEN

o doubt, 1861 was a year of great trials

Nand tribulations for Charleston, S.C. On December 11 of that year, a wind-driven fire cooked 600 dwellings, including all of the city’s public buildings, into smoldering rubble and ash. A few months before that, on September 20, the city of Charleston’s census report for 1861 reflected that the city had 48,409 residents.1

Eight months earlier, on April 12, 1861, Confederate shore batteries opened fire on Fort Sumter in Charleston Bay, S.C. The next day, amid the smoky, sulfurous haze left behind by the collective discharge of 50 guns and mortars, propelling more than 4,000 rounds at the Union garrison for 34 consecutive hours of merciless bombardment, the Union commander was constrained to surrender the fort. That was 161 years ago. Yet, the fort still stands—a silent testament ] to man’s strength and perseverance. And we, the fortunate inheritors of the people, culture, history, and laws of reunited people of the United States of America—remember and reflect.

The Four Corners of Law

Early in the evenin’, just about supper time Over by the courthouse, they’re startin’ to unwind … Down on the corner, out in the street…2

There are innumerable, time-worn street corners dotting the downtowns near stately old stone courthouses scattered across the southland. In Charleston, S.C., however, there is one crossing in particular, located a short distance from the famed Francis Marion Hotel,3 which is quite unique.

The so-called Four Corners of Law is encountered only in Charleston.4 Each edifice represents one of four separate and distinct legal jurisdictions. On the southeast corner stands St. Michael’s Episcopal Church,5 which represents God’s (or ecclesiastical) law; on the northeast corner is Charleston City Hall, representing city law;6 turning to the northwest corner, one would see the Charleston County Courthouse7 (originally the provincial capital), representing state law; and, lastly, on the southwest corner, the U.S. Post Office and Courthouse,8 signifying federal law, rises over the street. Reportedly, the local folk in the “Holy City” like to jest, “You can go to the Four Corners to get married, get taxed, and go to jail.”

The Four Corners evolved into the way it looks today over the course of two centuries. However, our concerns, and the subjects in this article, date back even longer. As the curtain closed on the antebellum era, strange times descended upon beautiful and affluent Charleston and the South in general. In a fantastical story that could have come from The Twilight Zone, brother found himself pitted against brother in the throes of a brutal civil war. Largely obscured by history, seldom written about, and hidden by the fog of war are the stories of rebel government organs that rose up as the mirror-image versions of various federal government organs, such as the Confederate Patent Office (1862-1865, in Richmond, Va.) and the Confederate courts.9

For Charleston’s humble beginnings and a recounting of its rich history and judicial evolution, we must mentally journey back in time to April 1670, over 350 years ago, to a landing point about 12 miles outside the city of Charleston. Some measure of factual and historical background is necessary, so it would be appropriate and instructive to recount the early history of the colony, later, the province, and, finally, the state of South Carolina. We then will take up judicial origins and development in turn.

Early Explorers and Settlers of the Carolinas

“During the settling of the American colonies, it was said that the Spaniards would first build a church, the Dutch would first build a fort, and the English a tavern. Welcome to Charleston, an English colony.”10

The earliest European attempts to settle the lands of South Carolina were not by the British. First came the Spanish, then the French, and, still later, the Spanish again, all of whom were miserably unsuccessful in colonizing the area in question.

The first recorded Spanish expedition reached the Carolina coast, near Winyah Bay, headed by explorer Francisco Gordillo. But unfortunately, the settlement in 1526, called San Miguel de Gualdape (near present-day Georgetown), was an abject failure in less than a year when, out of 500 people, only 150 survived to board the ship for the return voyage home.

In 1562, the French sailed to the coast and claimed the land for France. Meanwhile, the soldiers under the command of naval officer Jean Ribault built a settlement named “Charlesfort” (now known as Parris Island); it was likewise doomed in less than a year’s time, however.

In 1565, the Spaniards founded St. Augustine (in what today is Florida). A few years later, in 1566, the Spanish established the settlement of Santa Elena on the previous Spanish-held site and made it the first capital of Spanish “Florida.” The Spanish built and rebuilt two forts there (San Salvador and San Felipe), but by 1576, the area was largely abandoned due to attacks by local Native Americans. The Spaniards’ unfulfilled search for gold in the New World was also a contributing factor.

In the Years Before the British

In 1577, the Spanish returned once more to Carolina and built Fort San Marcos. It was used until 1582 or 1583, when a second Fort San Marcos was constructed. This fortification had a moat dug around it in 1586 in anticipation of an attack by Sir Francis Drake. However, before that could occur, Drake and his troops attacked the Spanish further south, in St. Augustine, and burned that town.

Leaving to support the troops further south, Santa Elena and the fortifications were abandoned by the Spaniards for the last time in 1587. At its height, the town had about 60 dwellings, with an estimated population of 400 to 450 people. After that time, the Spanish devoted more financial and military resources to settlements in Florida, thereby forfeiting Carolina to British settlers.

The British Are Coming—Pre-Colonial History of South Carolina

For chronological and historical context, colonists from Great Britain had settled Jamestown (in Virginia) in 1604 and the Mayflower Puritans’ Plymouth Colony (in Massachusetts) in 1620. Three years later, in 1623, the First Charter for Carolina was issued by King Charles I of England (1600-1649) to Sir Robert Heath (1575-1649).

It is here that Carolina’s nexus to the judiciary starts, for Sir Robert was an English judge and politician.11 As it turns out, that initial charter was never used, and King Charles’ political fortunes, and personal fate, took a precipitous dive. In 1649, Charles I was tried and beheaded by Oliver Cromwell, the Lord Protector of the Commonwealth of England, Scotland, and Ireland.

Following Cromwell’s death, his son Richard renounced power, thus ending the Protectorate and resulting in the restoration of the monarchy. The king’s son and heir, Charles II (1630-1685), took the throne in 1660. As remuneration for their stalwart loyalty, aid, and assistance against Cromwell (the elder), Charles II resolved to reward eight of his former generals.

In 1663, England’s King Charles II awarded the Carolina territory (a land area comprising the modern-day Carolinas and Georgia) to eight of His Majesty’s friends who had helped him regain the throne after several years in exile. In 1666, English Captain Robert Sanford set out to explore the area and named the Ashley River12; at the same time, he took possession of Carolina13 for the Crown and the nobles, who were dubbed the “Lords Proprietors.”

In 1669, settlers hoisted sail from London, crossing the Atlantic in three ships, the Albemarle, the Port Royal, and the Carolina. Despite the trials and tribulations of the voyage, including weathering a hurricane in Barbados, on March 15, 1670, the Carolina arrived in Seewee Bay14 and established Albemarle Point in April of that year.15 The population of that settlement in 1670 was 140 free people and 15 enslaved people.

A decade later, in 1680, the colony was relocated to “Charles Town” (known, after the American Revolution, as “Charleston”). By that time, the population had grown to 1,000 free people and 200 enslaved people.

Originally planned as a Protestant colony by Lord Proprietor Anthony Ashley Cooper and philosopher John Locke (yes, that John Locke)16 in 1670, the freshly minted Fundamental Constitution of Carolina granted broad religious freedom,17 which was carried out not only in word but in deed; this, in turn, affected the social and religious composition of the fledgling province. Sephardic Jews and French Huguenots came to Charles Town in droves. Indeed, up until the early 19th century, Charleston had the largest Jewish population of any city in North America.

Here’s a little aside from our history lesson. Generally speaking, the Lords Proprietors were needy nobles. Notwithstanding that fact, what the Lords Proprietors evidently did not want was any interference by some pesky lawyers.18 And so the first Constitution of South Carolina actually banned the practice of law as a profession. Desirous of simplicity—and, no doubt, the retention of power—the undereducated nobles would be free to run things as they saw fit under the auspices of a Grand Council. Thus, they conducted all colonial affairs, a virtual monopoly on executive, legislative, and judicial functions. To keep things in some semblance of order, administrative courts were established under the council’s direct control.19

The early 1700s were a time of growth for the young settlement. The population in 1700 had burgeoned to 3,100 free people and 2,400 enslaved people. Then, in September of that year, a hurricane struck.20 Just a few months later, the first free public library in America was founded on Nov. 16, 1700.

The city was assaulted anew in 1706 by the Spanish and French during Queen Anne’s War. It was, however, a disaster for the attackers; the Charles Town colonists captured a French ship and crew.

In that same general period, from 1710 to 1713, the so-called “Powder Magazine”21 was built. Completed in 1713, the Powder Magazine is South Carolina’s oldest government building. The building was used as an arsenal from 1713 to 1748 and during the American Revolution to defend the city. After 1780, it was retired, and by the early 19th century, it was privately owned. Today a National Historic Landmark serves as a museum.22

The Province of South Carolina (1712-1776)

The South Carolina and North Carolina colonies originally were part of one colony called the Carolina Colony. The division of the Carolina Province into North Carolina and South Carolina was completed by 1712. The Province of South Carolina lasted from 1712 to 1776.

In addition to the city’s land connections, the city also had a long and endearing maritime connection. Returning sea captains tended to affix pineapple fruits to their fence posts to let their friends and neighbors know that they were home safely and invite visits so that the old salts could regale their guests with tall tales of the seven seas.23

That nautical nexus included incursions by and encounters with pirates. The infamous Captain Edward Teach (“Blackbeard”) (1680-1718) sailed to the area in 1718 and took hostages for ransom. Charles Town had been a favorite target of pirate attacks. Blackbeard settled for a medicine chest in exchange for his prisoners. He lived to tell that tale, but Blackbeard’s luck ran out later that same year, at Ocracoke Island, in the sister colony of North Carolina.24

The “Gentleman’s Pirate,” Stede Bonnet (1688-1718), did not fare well in Carolina either. A wealthy Barbadian landowner-turned-criminal, Bonnet, was captured after a battle in the Cape Fear River (by North Carolina) and brought back to Charles Town for trial. He was tried for piracy and convicted by a jury before Sir Nicholas Trott, presiding as a vice-admiralty judge. Bonnet appeared without counsel and conducted his own defense—as terrible an idea then as it is today. After a plea to the governor for clemency, which resulted in no less than seven delays of execution, Bonnet finally was hanged at White Point Garden25 in Charles Town on Dec. 10, 1718.

A rebellion broke out against the Lords Proprietors in 1719. Acting on a petition of the colony’s residents, the British government appointed a royal governor for South Carolina in 1720. In 1720, the population had risen to 6,500 free people and 12,000 enslaved people. After nearly a decade in which the British government sought to locate and buy the Lord’s Proprietors, in 1729, both North Carolina and South Carolina became British royal colonies of the Kingdom of Great Britain.

Over the fullness of time, South Carolina became one of the wealthiest early colonies, largely due to exports of cotton, rice, tobacco, and indigo dye. Much of the colony’s economy depended on slave labor that supported large land operations similar to plantations. In particular, Eli Whitney’s invention of the cotton gin26 in 1793 led to an explosion in cotton growth and production. Indeed, Charles Town was the fourth largest city in colonial America and by far the wealthiest.

With its immense wealth and resources, Charles Town was a leader in many things. (The city’s spelling had varied over time, but its name was officially changed, upon incorporation, in 1783, to “Charleston”). It boasted a number of “firsts,” including the first public college, museum,27 and playhouse28 in the United States. The first golf club in North America, the South Carolina Golf Club, opened in 1786 on a peninsula field known as Charleston Green.

In 1773, the Charleston Museum, the oldest in the United States, was founded.29 In that same year, Lord Charles Montagu (17411784), His Excellency, the Royal Governor of the Province of South Carolina (having served in that office since 1766), fled, along with a group of fellow Loyalists, to Nova Scotia, Canada. There was an insurrection in the air and endless talk of rebellion in some quarters.

Colonial Judicial History of South Carolina

During colonial times in Carolina, the English Common Law was followed. As for the judiciary, the Court of King’s Bench and Common Pleas was founded around 1725 and was based in Charles Town. A few families, it appears, dominated the legal and judicial scene in the colony.

One family in the area that prominently served the public, wearing one legal hat or another, was the Pringles. It is worth looking into their story, which began with Judge Robert Pringle Jr.,30 who was born in 1702 in Scotland, in Edinburgh County. Pringle was a merchant, planter, legislator, and jurist in Charles Town.

Not trained in the law, Pringle was made the assistant judge of the Court of Common Pleas & General Sessions in 1760 or 1761. In that capacity, he served as the solitary assistant jurist to the ever-unpopular Chief Justice Charles Shinner.

During the Stamp Act crisis (1765-1766), the judge tried to open court sessions without the requisite stamped paper. As a result, he was removed from the bench in 1769 or 1770. He then retired from public life. On January 13, 1776 (before the Revolution), he died in Charles Town at age 73 or 74 and was buried in St. Michael’s Church Cemetery.31

Judge Pringle’s second marriage to Judith Mayrant Pringle (1723-1802) in 1751 resulted in three offspring. One of the children was John Julius Pringle; he arrived in this world on July 22, 1753, in Charles Town.

John Pringle32 graduated from the College of Philadelphia in 1771. He became a lawyer by studying jurisprudence in England and by “reading law”33 with John Rutledge (who became, among other things, a U.S. Supreme Court justice). Admitted to the bar in 1781, John Julius garnered a reputation for writing articles defending colonial rights.

Though not a judge, John Julius had a very distinguished legal career, serving first as a state assembly speaker and later as the U.S. attorney for South Carolina at the request of George Washington. From 1792 to 1808, he functioned as the attorney general of South Carolina. In 1805, President Thomas Jefferson offered him the post of U.S. attorney general, which Pringle declined for personal family reasons.

The other family that dominated the area’s legal arena was the Drayton family. These pillars of the Charleston community truly were great public servants and contributors to the judicial evolution of the colony.

Several chief justices served on South Carolina’s highest court from 1698 to 1795. One jurist worth discussing is William Henry Drayton (1742-1779), who was in this office from April 13, 1776. He was educated in England (Oxford), read law, and was admitted to the South Carolina Bar. Drayton also was a plantation owner in Charleston.

After publishing a series of pamphlets opposed to the actions of Americans against England, he was made a member of the Colonial Council. Later, Governor William Bull made him a judge in the Colony’s Court in 1774. He certainly had the right familial connections. His mother, Charlotta Bull Drayton, quite fortuitously was the daughter of Governor Bull. But Judge Drayton pushed his luck and career fortunes when he wrote a pamphlet titled “The American Claim of Rights” (supporting the rebel cause). He was promptly removed by the Crown from all colonial offices.

In that fateful year of 1776, under the state’s interim constitution, Drayton returned to his council seat and was seated as the state’s chief justice of the Supreme Court. Subsequently, he served in Philadelphia as a delegate for South Carolina to the Continental Congress in 1778 and 1779. But, unfortunately, it was there, that Judge Drayton succumbed to typhus.

The Drayton family was, without a doubt, the crème de la crème of the Carolina community. One of William Henry’s cousins, William

Drayton, served as a U.S. congressman. Representative Drayton was the son of Judge William Drayton Sr.

As for other hereditary affiliations, it is noteworthy that Judge Drayton’s son, John Drayton (1766-1822), later became the governor of South Carolina (1800-1802 and 1808-1810) and, still later, a U.S. district judge (1812-1822).34 Judge Drayton’s home and plantation, Drayton Hall, still can be toured today; it is located on the northwestern outskirts of Charleston and now is an impressive museum site.35

A new chief justice of the State Supreme Court of South Carolina was appointed in 1791. He was none other than John Rutledge (17391800), who took office on February 16, 1791, and served until 1795. Rutledge is better known, of course, for having also served as a U.S. Supreme Court justice (and chief justice). In any event, he certainly exerted a marked influence on other Charleston lawyers (and judges) of the time.

Charles Town During the Revolutionary Period (1774-1782)

Revolutionary times cast their pall over Carolina. On June 18, 1775, Lord William Campbell, the last royal governor, arrived at the colony. He would have a very rough and eventful tenure.

During the American Revolution, there were more battles in South Carolina than in any other state (e.g., battles at King’s Mountain and Cowpens).

Presaging the fight to come, in the spring of 1776, General Sir Henry Clinton and Admiral Sir Peter Parker sailed into Charles Town’s waters with a veritable armada carrying 3,000 regular British troops. The unenviable responsibility for the city’s defense devolved upon Major General Charles Lee.

One of the mottos of South Carolina is “Dum spiro spero” (“While I breathe, I hope”). The phrase lived up to its billing, as the unthinkable happened on June 28, 1776, when a contingent of rag-tag colonists, holed up in a makeshift fort on Sullivan’s Island, traded fire with nine British warships hell-bent on the conquest of Charles Town. The fort’s unyielding protector, Colonel William Moultrie, called it “one continual blaze and roar.”

The battle lasted around nine hours, but Fort Sullivan’s palmetto logs held up against the barrage, and, eventually, the attacking fleet withdrew. That gallant effort staved off the British occupation of Charles Town for four years and became a symbol of American resilience. In gratitude, the fort was renamed Fort Moultrie36 in honor of its resolute commander, and South Carolina later adopted the Moultrie banner as its state flag.37

The siege of Charles Town began in earnest on March 29, 1780, and, like a biblical event, endured for 40 days. The city’s defenders finally surrendered to the British on May 12, 1780. Adding insult to injury, in August of that year, many prominent citizens were rounded up and imprisoned in the dungeon of the Old Exchange.38 A year later, on Aug. 4, 1781, Colonel Isaac Hayne was hanged by the British. Unluckily for the colonel, a few months later, the city would be liberated by General Washington’s troops under General Nathaniel Greene.

A year later, on Nov. 14, 1782, the brave men of Colonel Tadeusz Kościuszko of General Washington’s Continental Army heartily fought off the Redcoats on tiny James Island. James Island turned out to be the area’s final action of the Revolutionary War.39 Eight decades later, during the Civil War, the Battle of Secessionville was fought on James Island.40

The defeated Brits marched out of the city in 1782. On Aug. 13, 1783, the city formally was incorporated, and, perhaps more crucially, the name was officially changed to “Charleston.”

In 1787, the state selected its delegates to sign the U.S. Constitution—namely, Charles Cotesworth Pinckney, Pierce Butler, and John Rutledge. These names would be prominent in the Pantheon of early South Carolinian leading citizens. In 1790, as the new decade dawned, there were now 141,000 free people and 107,000 enslaved people in Charleston. After the Revolution’s end, in May 1791, President Washington visited Charleston for a week during his “victory tour” of the South.41

The U.S. District Court of the District of South Carolina

Today, sessions of the U.S. District Court for the District of South Carolina are held in the cities of Aiken, Beaufort, Charleston, Columbia, Florence, Greenville, and Spartanburg. The district was one of the original 13 courts established by the Judiciary Act of 1789, 1 Stat. 73, on Sept. 24, 1789.

Over the centuries (in 1823 and again in 1912), Congress saw fit to divide the court into an Eastern District and Western District. However, in 1898, in the case of Barrett v. United States, 42 the U.S. Supreme Court decided that South Carolina legally constituted a single judicial district. That ruling did not deter Congress from dividing it in 1912, but in 1965, in the legislative branch’s latest move in this game of “the old switcheroo,” it converted the court back to a single judicial district, and it has remained that way ever since.43

Between 1789 and 1886, a total of seven jurists sat on the bench of this court. Of those judges, five “died with their boots on” in office, one resigned just before the breakout of the Civil War, and the first post-war jurist retired.

The longest-serving jurist was Judge Bee, who sat for a robust period of 22 years, followed by Judge Bryan at 20 years, Judges Lee and Gilchrist at 16 years each, Judge Magrath at four years, and Judge Drayton at one year.

The courtroom and the judge’s chambers which made up the District Court (with Judge Drayton presiding), had its humble beginnings in the Exchange Building.44 Since then, the court may be likened to a Royal Monarch butterfly, flitting every so often from one place to another.

In 1792, Judge Bee relocated to the Charleston County Courthouse located at Meeting and Broad Streets, which remained the court’s home until 1837. The U.S. Circuit Court met there as well.45 In that year and until 1846, the court met in the Planter’s Hotel. From 1846 until 1860, the court then held sessions on Chalmers Street. In 1866, when Judge Bryan took the bench, the court heard cases at the John Rutledge House. Later, in 1869, the court moved to the Charleston Club House.

By 1884, the court had moved again, this time to the U.S. Custom House. Commencing in 1896, the U.S. Post Office and U.S. District Court have shared a dedicated structure, adorned in wood and marble, located near the Four Corners of Law.

Hon. William Drayton Sr.46

The first federal district judge appointed to the single seat on the new court was William Drayton Sr. (1732-1790). However, he enjoyed active service for less than a year, from late 1789 to mid-1790.

Born on March 21, 1732, in Ashley River, S.C., Judge Drayton was a recess appointment made by President George Washington on Nov. 18, 1789. Drayton was subsequently nominated to the same seat by the president on Feb. 10, 1790. At the time, the judicial salary for

a federal district judge in South Carolina was $1,800.47 That would be the equivalent of $57,188.32 in 2022.48

Judge Drayton had been educated at the Middle Temple49 in London by 1754. Later on, he read law (1756), after which he promptly became a justice of the peace in Berkeley County, S.C. (1756-1763). From 1765 to 1778, he was chief justice for the Province of East Florida. Then, in 1789, he became a judge of the South Carolina Admiralty Court. Also, in 1789, he switched over to become an associate judge of the Supreme Court of South Carolina.

While he was not long on the federal bench, Judge Drayton is memorable for several reasons. The court’s opening ceremony was held on Dec. 14, 1789. At that time, the judge showcased his Presidential Commission and appointed Thomas Hall as the first clerk of court.50 In addition, lawyer Julius Pringle, Esq., was appointed U.S. attorney by the judge.

Alacrity was called for, as a trial needed to be held in the coming days. Consequently, a few days later, on Dec. 19, 1789, Judge Drayton reconvened the court to establish rules for admission to practice, set the terms of court, and create jury lists.51

The first action to be tried in this district before Judge Drayton was an admiralty action, namely, George Abbot Hall, Collector of the Port of Charleston v. Eight Barrels of Sugar, etc., on board the Sally Sloop and Letty. Proceedings commenced therein on Jan. 7, 1790, ending quickly on Jan. 22, 1790, by Judge Drayton’s entry of a default judgment in the case.52

The court’s second case was likewise an admiralty proceeding, Thomas Athenson v. Brigantine Mercury. The records of both the Hall case and the Athenson case are available for scholarly review.53

Judge Drayton died while in office on May 18, 1790, at the relatively young age of 58. However, like the Pringle clan, the Drayton family was an omnipresent force in the early South Carolina legal and political landscape. To illustrate, Judge Drayton’s only child, William Drayton, was commissioned a colonel during the War of 1812 and later became a U.S. congressman for South Carolina (1825-1833).54

Hon. Thomas Bee55

Following Judge Drayton’s relatively brief tenure on the federal bench, the next presidential appointment for the position was Thomas Bee (1739-1812), whose active service on the court ran from 1790 to 1812. Like Judge Drayton, Judge Bee was appointed by President Washington. That transpired on June 11, 1790, and the U.S. Senate confirmed Bee on June 14, 1790.

A hometown boy born in 1739 in Charleston, Judge Bee was educated at the University of Oxford56 in England. He read law (1761) and then entered private practice in Charleston (several times, in fact). A prolific public servant, Judge Bee held a myriad of civic positions, including Member, South Carolina Commons House of Assembly (1762-1765 and 1772-1776); Member, South Carolina Greater Assembly (1776-1778); State Representative, South Carolina (1778-1789 and 1781-1782); Lt. Governor, South Carolina (1780); Delegate Continental Congress (1780-1781); and South Carolina State Senator (1788-1790). Additionally, he was nominated to be the chief judge of the Fifth Circuit Court of Appeals on February 21, 1801 (confirmed Feb. 24, 1801), an appointment which he declined.

In 1800, Charleston’s population rose to 196,000 free people and 147,000 enslaved people. Following the Hurricane of 1804, and a few months shy of the opening of the War of 1812, on Feb. 18, 1812, Judge Bee died while in office at age 73.

During the War of 1812, South Carolina and our nation’s iconic warship, the U.S.S. Constitution, earned its famous nom de guerre during the War of 1812 in the heat of a naval battle with Britain’s H.M.S. Guerriere on Aug. 19, 1812. It seems that several shots from the British frigate bounced off the oaken sides of the U.S. ship. The press dubbed the venerable ship “Old Ironsides” as a result. Where did the government secure the seemingly impenetrable live oak used for the iconic vessel? It was hewn from 60 acres of oak trees from the swamps of South Carolina and Georgia.57

The Bee family boys were lawyers and fighters. In fact, two of Judge Bee’s grandsons held the rank of Confederate generals. First, Barnard Elliott Bee was a brigadier general who died at the First Battle of Bull Run (Manassas Junction, Va.) on June 17, 1861, at the fairly young age of 37. As a side note, it was Barnard Bee who supposedly first used the term “stonewall” in reference to then Brigadier General Thomas J. Jackson and his men, giving rise to the memorable moniker “Stonewall Jackson” and the “Stonewall Brigade.”

The other scion of the Bee family hive, Hamilton P. Bee, also served as a Confederate States of America brigadier general from 1862 until the war’s end. Despite having several horses shot out from under him and being wounded, Hamilton Bee survived the war. Long after the war, he opened a law practice in San Antonio for a year or so before he died in 1874 at the age of 75.

Hon. John Drayton58

After the death of Judge Bee, Washington and South Carolina turned once again to the ever-reliable Drayton family for the passing of the judicial baton. It was an easy choice. After all, John Drayton’s family had been true blue Carolinians since the 17th century.

Indeed, Magnolia Plantation and Gardens (464 acres) dates back to 1676 under the stewardship of the family patriarch and matriarch Thomas Drayton Jr. and Ann Fox Drayton. Since that time, there have been 15 generations of Draytons in Charleston. Thomas died in 1717.

John Drayton Sr., brother of Thomas, built Drayton Hall in 1738 on a plot of adjoining land. John was the well-to-do proprietor of hundreds of commercial plantations, totaling some 76,000 acres of land.

Upon Thomas’s death, John bought Magnolia from his nephew. Thomas’s second son, Charles, was a medical doctor who benefited from an education at Edinburgh University in Scotland. Charles was the father of Judge John Drayton.

The judge’s father, John Sr., died during the American Revolution in 1779 when forces ransacked both Magnolia and Drayton Hall under the leadership of British Major General Augustine Prévost (17231786).59 Fleeing for his life with his family, the elder John Drayton suffered a seizure and died after crossing the Cooper River.60

John Drayton (1766-1822) was Judge Bee’s successor to the South Carolina District Court bench. He was born in Drayton Hall. Appointed by President James Madison on May 4, 1812, and confirmed by the Senate, and commissioned on May 7, 1812, Drayton’s years of active federal judicial service ranged from 1812 to 1822.

Born on June 22, 1766, in Charleston, Judge Drayton was educated at Inner Temple61 in London. After reading law (1788), he entered into private practice in Charleston (1788, 1789-94, 1796-98, and 1811-12). As with other judges of the period, Judge Drayton, besides being a planter, held many public posts, including but not limited to State Representative of South Carolina (1792-1796); Lt. Governor of South Carolina (1798-1800); State Senator, South Carolina (180508); and Governor, South Carolina (1801-1803 and 1809-1810).

Hon. Thomas Lee62

The next jurist to grace the District of South Carolina bench was Thomas Lee (1769-1839). Judge Lee actively served the district for 16 years, from 1823 to 1839.

Born on Dec. 1, 1769, in Charleston (Province of South Carolina, British America), Judge Lee read law and was admitted to the bar in 1790. He was engaged in private practice in the city from 1790 to 1791. Embarking early on in a judicial career, as he was just 22 and admitted to the bar only one year, he became an associate judge on the Court of General Sessions and Common Pleas in Charleston (1791 to 1792). Later, he served as a solicitor for the Southern District of South Carolina from 1792 to 1794 and state solicitor general of South Carolina from 1794 to 1798.

With a federal court vacancy created by Judge Drayton’s passing at the end of 1822, on Feb. 7, 1823, Judge Lee was nominated by President James Monroe63 to the seat on the U.S. District Court for the District of South Carolina vacated by Judge John Drayton. Judge Lee was confirmed by the U.S. Senate and commissioned on Feb. 17, 1823.

In 1830, Congress raised the compensation for this federal judicial position to $2,500 per annum.64 In 2022 dollars, that salary would be equivalent to $79,428.26.65 Judge Lee sat on the bench until his death on Oct. 24, 1839, in Charleston.

Hon. Robert Budd Gilchrist66

Following in the footsteps of Judge Lee on the bench was Robert Budd Gilchrist (1796-1856), another Charleston native, born on Sept. 28, 1796. Judge Gilchrist served in the District Court of South Carolina for 14 years, from 1839 to 1856.

Judge Gilchrist received his education at South Carolina College (now the University of South Carolina), receiving both an Artium Baccalaureus (i.e., a B.A.) degree (1814) and an Artium Magister (i.e., an M.A.) degree (1817).

As with most of his predecessors and successors, he read law; he was admitted to the bar in 1818. Commencing in 1831 until his appointment to the bench, Gilchrist was the U.S. attorney for the District of South Carolina. On Oct. 30, 1839, President Martin Van Buren67 gave Gilchrist a recess appointment; the president nominated him on Jan. 23, 1840, and the Senate confirmed and commissioned him on Feb. 17, 1840.

By 1840, the population of Charleston was 259,000 free people and 327,000 enslaved people. Judge Gilchrist’s federal service terminated on May 1, 1856, in Charleston due to his death at age 59.

Hon. Andrew Gordon Magrath68

After having previously served as a U.S. district judge, Andrew Gordon Magrath (1813-1893) was the last Confederate governor of South Carolina from 1864 to 1865. Like many of his predecessors and his successor, he was born in Charleston.

Judge Magrath graduated from South Carolina College with an A.B. (1831). He later attended Harvard Law School for legal training. However, it was in Charleston, in 1835, where he read law under James L. Petigru, Esq.,69 and gained his command of the law.

On May 9, 1856, Judge Magrath was nominated by President Franklin Pierce70 to the seat on the U.S. District Court for the District of South Carolina that had been left vacant by Robert Budd Gilchrist. Judge Magrath was confirmed and was commissioned by the U.S. Senate on May 12, 1856.

Judge Magrath’s appointment to the federal bench ultimately brought him national attention and fame, or infamy, depending upon whether you wore blue or grey. Although personally opposed to the slave trade, Judge Magrath handed down a significant legal victory for slave-trade proponents and states’ rights advocates in April 1860.

The vessel Wanderer had been seized for illegal transportation of enslaved Africans. Proceedings took place contemporaneously in Boston and Charleston. Judge Magrath held that the 1820 federal piracy statute was inapplicable to the slave trade. In eschewing that statute, which carried a penalty of capital punishment, Judge Magrath effectively declawed it, sending an unmistakable message to federal authorities that they could not hope to prosecute slave traders in South Carolina’s federal district court.71

A few months later, Judge Magrath made the newspapers again. It is said that he became the first federal official to resign his post in opposition to the election of Abraham Lincoln to the presidency in 1860.72 In defiance of Honest Abe’s election victory, on November 7, just one day after the election, Judge Magrath rose from his chair and resigned from the bench, famously declaring:

In the political history of the United States, an event has happened of ominous import to fifteen slaveholding States. The State of which we are citizens has always been understood to have deliberately fixed its purpose whenever that event should happen. Feeling an assurance of what will be the action of the State, I consider it my duty, without delay, to prepare to obey its wishes. That preparation is made by the resignation of the office I have held. For the last time, I have, as a Judge of the United States, administered the laws of the United States within the limits of the State of South Carolina. While thus acting in obedience to a sense of duty, I cannot be indifferent to the emotions it must produce. That department of Government which I believe has best maintained its integrity and preserved its purity, has been suspended. So far as I am concerned, the Temple of Justice, raised under the Constitution of the United States, is now closed. If it shall be never again opened, I thank God that its doors have been closed before its altar has been desecrated with sacrifices to tyranny.73

Magrath may have led the pack, but of course, he was not alone in the desertion of his federal duties. When the war broke out, all of the federal judges in the South resigned … all except for one lone holdout, Judge West Hughes Humphreys of the District of Tennessee. Judge Humphreys accepted a seat on the Confederate bench (18611865), yet he refused to resign his federal commission. Congress had a remedy for that; in 1862, it impeached, convicted, and removed Judge Humphreys from office.74

In 1860, when South Carolina issued the “Ordinance of Secession on December”75 and then, in short order, the “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union,”76 on Dec. 24, 1860, Charleston’s population had risen to 271,000 free people and 487,000 enslaved people.77 On December 20, the ordinance of Secession at Institute Hall in Charleston had proclaimed South Carolina to be an independent commonwealth.

It was not long before Judge Magrath was back on the bench, just sitting under a different colored flag. In 1861, Judge Magrath once

again donned his judicial robes in Charleston. Jefferson Davis had appointed him as a Confederate district judge.

As related above, on April 12, 1861, Confederate forces opened fire on Fort Sumter, thus hurling the first salvos of the Civil War. In retaliation, on Dec. 19 of that year, the Union sunk the “Stone Fleet”78 in the harbor to effectuate a blockade of Charleston.

A few years passed. The war raged on. Then, beginning on Aug. 22, 1863, different Union ships, no longer submerged, no longer stone silent, bombarded downtown Charleston … and they persisted not for a day, not for a week, not for a month, but for 587 days. It all started with a shell exploding on Pinckney Street.79

Despite the continual barrage, Judge Magrath remained on the Confederate District Court bench until 1864, where he was noted, among other things, for his opposition to the centralization of power by the Confederate government in Richmond, Va. As the national conflict dragged on and desperation set in for the South, the South Carolina General Assembly appointed Judge Magrath to be the Governor of South Carolina in December 1864. However, he served for less than a year in his stint as the state’s chief executive.

By April 14, 1865, the Stars and Stripes flag was once again flying over the ramparts of Fort Sumter. Within a month, the governor would be clapped in irons. In the aftermath of the collapse of the Confederacy, the Union Army arrested Governor McGrath on May 25, 1865, and remanded him to Fort Pulaski (in Georgia) for imprisonment until his pardon and release in December of that year. After prison and his release, McGrath, ever a survivor, returned to the lucrative private practice of law in his hometown of Charleston from 1865 to 1893. On Apr. 9, 1893, he died in Charleston at age 80.80

Hon. George Seabrook Bryan81

George Seabrook Bryan (1809-1905), another Charlestonian, was the first U.S. District Court judge to sit in the District of South Carolina after the American Civil War. He remained on the federal bench for 20 years, from 1866 until his retirement on Sept. 1, 1886.

Judge Bryan appears to have read law like so many of his contemporaries. He was nominated by President Andrew Johnson82 on Feb. 9, 1866, to the seat vacated by Judge McGrath prior to the outbreak of hostilities between the North and South. He was confirmed and commissioned by the Senate on March 12, 1866.

During his tenure on the bench in 1867, the federal government increased the compensation for his office to $3,500.83 That salary would have had equivalent purchasing power in 2022 dollars of $69,124.05.84 Around that era, by 1870, the population of Charleston had mushroomed to 290,000 free people and 466,000 African-Americans.85

To be sure, Judge Bryan came from an old and illustrious family. He was the grandson of George Bryan (1731-1791) of Dublin, a judge of the Supreme Court of Pennsylvania. After a long retirement, Judge Bryan died on Sept. 28, 1905, at age 96, in Flat Rock, Henderson County, S.C.

The Life and Times—and Tragedy—of Justice Rutledge

Smart. Scholarly. Solid family. Lion of a lawyer. Respected jurist. Yet, from the words of his own mouth, John Rutledge’s lack of political savvy and personal hubris caused a sudden free fall from the heights of judicial history, a nosedive that would make even the mythological Icarus wince.

Rutledge, a leading citizen and lawyer of Charleston was an associate justice of the U.S. Supreme Court from Feb. 15, 1790, until March 5, 1791. He also very briefly served in the capacity of the second chief justice of the Supreme Court, succeeding Chief Justice John Jay. However, the last post was a relatively short-lived appointment, commencing on Aug. 12, 1795, and ending with his resignation about four months later, on Dec. 28, 1795.

In September 1789, President Washington nominated Rutledge as a charter member of the first class of associate justices of the newly minted U.S. Supreme Court, along with John Blair Jr., William Cushing, Robert H. Harrison, and James Wilson. The chief justice was New Yorker John Jay. However, as fate would have it, Rutledge resigned from the Supreme Court in 1791, without ever hearing a case, to take the helm as chief justice of the South Carolina Court of Common Pleas and Sessions.86

John Rutledge became taken by and engaged with the law as a child and began reading law at age 17 under lawyer James Parsons, Esq. By age 19, he was on a ship bound for England to study at London’s Middle Temple. Upon completing his legal studies, Rutledge retraced his steps back to Charleston and founded what quickly and profitably became an enviable legal practice.

On May 1, 1763, Rutledge married Elizabeth Grimké (born 1742), with whom he had ten children. He was a devoted husband and family man. Unfortunately, Elizabeth’s death in 1792 would cause Rutledge much grief and illness in his later years. Elizabeth was the daughter of Charleston lawyer Frederick Grimké and a cousin of the famous abolitionist sisters, Sarah and Angelina Grimké, also the daughters of a lawyer/judge.87

After the resignation of Chief Justice John Jay in June 1795 (to accept the governorship of New York), Rutledge was called upon, once again, to serve on the U.S. Supreme Court, this time as chief justice. Due to a protracted Senate recess, President Washington named Rutledge by virtue of a recess appointment, commissioning Rutledge on June 30, 1795; Rutledge took the Judicial Oath on August 12. Unfortunately, the Senate did not reconvene until December of that year. When it did finally meet, it spelled big trouble for Rutledge.

In truth, Rutledge had no one to blame but himself. While Congress was out, on July 16, 1795, Rutledge orated a highly controversial speech denouncing the recent Jay Treaty88 with Great Britain. He reportedly went so far as to say in the speech that “he had rather the President should die than a sign that puerile instrument”—and that he “preferred war to an adoption of it.”89

Rutledge’s words likely echoed popular sentiments against the Jay Treaty. However, the governmental establishment and ruling political class favored it, and Jay personally was highly regarded, so Rutledge’s bold verbal assault did not play well in Washington, D.C. It should come, then, as no surprise, that the politically incorrect rant of Rutledge against his former colleague on the court, Justice Jay, and his signature treaty lost Rutledge vital support in the circles of power and, in particular, in the Senate. His reputation lay in ruins. The Senate soundly rejected Rutledge’s nomination in a humiliating 10-14 vote. Rutledge thereupon resigned and withdrew from public life.90

The docket of the U.S. Supreme Court was then exceedingly sparse, so only two cases were decided during the short time that Rutledge served as chief justice. First, in United States v. Peters,91 the Court ruled that federal district courts had no jurisdiction over crimes committed against Americans in international waters. Second, in Talbot v. Jansen, 92 the Court held that a citizen of the United States did not waive all claims to U.S. citizenship by either renounc-

ing citizenship of an individual state or becoming a citizen of another country. As a result, the Rutledge Court had laid down a precedent for multiple citizenships in the United States.

Rutledge’s mental state markedly declined after his wife’s death, so the Senatorial snub may have been too much to bear. Allegations of alcohol abuse and even mental illness made the rounds among rumormongers and gossipers. And so it was that on a cold day in December, the dejected jurist headed for the pier, just a day after Christmas in 1795, where he attempted suicide by drowning. However, when he launched himself off the wharf and into Charleston Harbor, he was spied by two slaves who rescued the old justice. A virtual recluse after that incident, he died on June 21, 1800, at the age of 60.

Final Thoughts

Over 161 years ago, in what must have been, notwithstanding the color of one’s uniform, a surreal moment, Confederate General P.G.T. Beauregard93 allegedly stood on the second-floor piazza of the Edmondston-Alston House94 to watch the fiery spectacle of the ferocious day-and-a-half-long bombardment of Fort Sumter in Charleston Harbor. Nowadays, the piazza welcomes visitors sipping bourbon on the rocks or mint juleps while taking panoramic photos of the majestic Charleston Harbor.

We have gone from the Four Corners of Law to the Four Flags of Foreigners exercising dominion over South Carolina. Still, later, two more flags (the banners of the United States of America and the Confederate States of America) would fly as a country divided, then reunited in 1865, and would profoundly affect the federal judicial landscape of the area. Through it all, however, ever-engaging and ever-enduring, the Southern hospitality of the “Big Sweet Grass Basket” lived, and still lives, on. As the second of South Carolina’s two-state mottos declares: “Animus Opibusque Parati”95 (“Prepared in Mind and Resources.”)96 

Ira Cohen, of Weston, Fla., has been practicing intellectual property law for over 39 years. He served as judicial law clerk to Hon. Harold J. Raby, U.S. magistrate judge for the Southern District of New York (1982-1985). Cohen is chair of the Intellectual Property Law Section of the FBA as well as a sustaining member of the FBA, a Life Fellow of the Foundation, columns editor for The Federal Lawyer, an FBA moot court judge, and an FBA mentor. He gratefully acknowledges the contributions of his editorial assistant, Geraldine Orlando, in connection with this article.

Endnotes

1Frederick A. Ford, Census of the City of Charleston, South Carolina, For the Year 1861, Charleston City Council (1861), http://www. genealogytrails.com/scar/charleston/citycensus_1861.htm. 2 Creedence Clearwater Revival, Down on the Corner, on Willy and the Poor Boys (Fantasy Records 1969). 3Francis Marion Hotel, https://www.francismarionhotel.com (last visited May 31, 2022). 4“The intersection of Meeting and Broad St. was coined the ‘Four Corners of Law’ by Robert Ripley—of Ripley’s Believe It or Not!—in the 1930s.” Justine Palkowski, Charleston’s Four Corners of Law, CHS Today (Mar. 21, 2019), https://chstoday.6amcity.com/charlestonsc-four-corners-law/. 5St. Michael’s, the first Anglican Church south of Virginia, was built between 1752 and 1761 and is the oldest church in town. Be sure to check out cedar-box Pew Number 43 (a/k/a “the Governor’s Pew”), which was used for worship by George Washington on May 8, 1791. The church’s colonial clock and bells (eight), believed to be the oldest working clock and bell tower in the U.S., were imported from England in 1764. Dr. Jenny Gesley, Four Corners of Law, Charleston, SC—Pic of the Week, In Custodia Legis, Law Librarians of Congress (Oct. 6, 2017), https://blogs.loc.gov/law/2017/10/fourcorners-of-law-charleston-sc-pic-of-the-week. 6The City Hall, adorned in Italian marble, was constructed between 1800 and 1804. Originally, it housed the First Bank of the United States (1791-1811) (proposed by Alexander Hamilton), modeled after the bank of England. It became the City Hall in 1818. Id. 7The Charleston County Historic Courthouse was built in 1753 and originally used as the statehouse for the British Royal colonial government. In or around 2001, the building was vacated and restored to how it looked in 1792. The first reading of the Declaration of Independence to the public took place there. Id. 8When Britain ruled South Carolina, the land under the U.S. Post Office and Courthouse was the designated place for the gallows for public executions. The construction of the post office/court building, in the Second Renaissance Revival style, was completed by 1896. It houses both the federal district court and the circuit court. Id. 9Apart from the Confederate District Courts, there were also courtsmartial and other military courts. 10Mark R. Jones, Wicked Charleston: The Dark Side of the Holy City (2005). 11Sir Robert Heath was an attorney general, a chief justice of the Court of Common Pleas, and, later, the Lord chief justice. Paul E. Kopperman, Sir Robert Heath, 1575-1649: Window on an Age (1989) 12The Ashley and Cooper Rivers, which border Charleston’s historic central district, both are named for the same man. Lord Anthony Ashley Cooper (the First Earl of Shaftesbury) was one of King Charles’ friends and a Lord Proprietor. He is credited with picking Charleston’s location and with establishing the progressive “Grand Modell” for the town, along with John Locke. Jen Ashley, The History Behind Several Charleston, S.C. Street Names, CHS Today (Aug. 9, 2018), https://chstoday.6amcity.com/street-names-historycharleston-sc/. 13“The Carolinas were named for King Charles I and King Charles II. Derived from the Latin Carolus, the colony was originally named ‘Carolana,’ with the spelling eventually changed to ‘Carolina.’” Province of South Carolina, Acad. Dictionaries and Encyclopedias, https://en-academic.com/dic.nsf/enwiki/271975 (last visited June 2, 2022). 14The Isle of Palms was originally named Hunting Island and then Long Island; believed to be at least 25,000 years old, it was first inhabited by the Seewee Indians. The Best South Carolina Beaches for Avoiding Crowds, Livability (July 20, 2021), https://livability.com/ sc/experiences-adventures/the-best-south-carolina-beaches-foravoiding-crowds/. 15Charles Towne Landing State Historic Site. Today, this area is a state park that sits on a marshy point off the Ashley River. It marks the spot where the English settlers landed in 1670 and found a colony for England. David Baker, Charles Towne Landing State Historic Site, S.C. State Parks, https://southcarolinaparks.com/charles-townelanding (last visited June 2, 2022). 16John Locke (1632-1704) was a notable English physician and philosopher. Hailed by many as the “Father of Liberalism,” he

wrote, among many other works, “Letters Concerning Toleration” (1689-1692). 17The Charter expressed tolerance for most religions, except Catholicism. Lord Cooper and his English royal friends were, shall we say, not on the best terms with the Roman Catholic Church. 18Among the immortal Bard’s most celebrated lines, and taken from William Shakespeare’s Henry VI, Part 2, Act IV, Scene 2, is the sage advice of Dick the Butcher to improve the country: “The first thing we do, let’s kill all the lawyers.” Written in 1591, those theatrical lines would have been well known to both Ashley Cooper and Locke. 19Chief Justice Nicholas Trott made a record of such proceedings from 1682-1712. Later on, a collection of colonial and state law was compiled by Judge John Grimké covering the time before Justice Trott to the formation of the United States in 1790. See M. Eugene Sirmans, Colonial South Carolina: A Political History 1663-1763, 3-15 (1966). 20Other tropical hurricanes struck the city in 1728, 1752, and 1804, respectively. 21South Carolina’s oldest public building formerly saw service as a gunpowder storage place. Built in 1713, the building had 3-foot thick walls and a remarkable design that would cause any explosion to shooting upward, sparing the town’s buildings and town folk. 22This is the last standing piece of the city’s original military fortifications. 23In South Carolina today, the omnipresent pineapple symbol is viewed as a mark of hospitality. 24At the request of Carolina planters, the lieutenant governor of Virginia dispatched a British naval force that succeeded in killing Blackbeard. The infamous pirate’s body was decapitated and his head affixed to the end of the bowsprit of his ship, Queen Anne’s Revenge. 25You can find this today, a 5.7-acre, monument-strewn park, located at the tip of the peninsula. 26Invented in 1793, the cotton engine (or “gin”) was patented in 1794. 27Located at 360 Meeting St., the museum was started as a storehouse for natural and local history collections. 28The first theater in America, the Dock Street Theatre, was built in 1736 on the corner of Church and Dock Streets. It burned down in 1740. 29Routinely regarded as “America’s First Museum,” this special place was established around the time of the American Revolution. Its exhibits highlight Native Americans and slaves of the area. 30Judge Robert Pringle Jr., Find a Grave, http://www.findagrave.com/ memorial/163574686/robert-pringle (last visited May 31, 2022). 31Through Judge Pringle’s extensive writings, we are treated to a birds-eye view of life in colonial South Carolina. See Walter B. Edgar, The Letter Book of Robert Pringle (1972). 32John Julius Pringle Sr., Find A Grave, http://www.findagrave.com/ memorial/26344223/john-julius-pringle (last visited May 31, 2022). 33“To prepare for a legal career by working in a lawyer’s office as a clerk while studying legal texts on one’s own time. Most American lawyers in the 18th and 19th centuries obtained their legal educations solely by reading law. Today, few American states allow applicants to take the bar exam without attending law school.” Reading Law, Black’s Law Dictionary 1516 (11th ed. 2019). 34See discussion supra. 35Founded in 1738, Drayton Hall is the oldest plantation house in the country. 36Fort Moultrie stands on Sullivan’s Island. This historic military site (in use from 1776-1947), boasts a wealth of artifacts and great views of Charleston Harbor and Fort Sumter. 37The British bombardment had little effect on Fort Sullivan because its walls were fortified with Carolina palmetto logs that absorbed the force from the cannonballs. The sabal palmetto later was named the state tree, and the Moultrie battle flag’s palmetto design is depicted on the state flag. 38Completed in 1771, the Old Exchange Building has seen action, over the course of 250 years, as a commercial exchange, custom house, post office, city hall, military headquarters, courthouse, and museum. The cellar is referred to as the Provost Dungeon. 39The colonel was almost killed there. The Continental Congress would later promote Kosciuszko to brigadier general for his war-time service. 40In 1935, composer George Gershwin penned the famous folktaleturned-opera Porgy and Bess, which relates the tale of a crippled street-beggar from the slums of Charleston. 41Washington lodged at the Daniel Heyward House, built between 1770 and 1772 (the date is known because of a coin dated 1772 found inside a window frame, as was then the custom). 42Barrett v. United States, 169 U.S. 218 (1898). 43Current judges of the District of South Carolina (and their seats of court)—Chief Judge: Hon. R. Bryan Harwell (Florence); Judges: Hon. David C. Norton (Charleston), Hon. Richard M. Gergel (Charleston), Hon. J. Michelle Childs (Columbia), Hon. Timothy M. Cain (Anderson), Hon. Mary Geiger Lewis (Columbia), Hon. Bruce H. Hendricks (Charleston), Hon. Donald C. Coggins Jr. (Spartanburg), Hon. Sherri A. Lydon (Florence), Joseph F. Anderson Jr. (Columbia), Hon. Henry M. Herlong Jr. (Greenville), Hon. Cameron McGowan Currie (Columbia), Hon. Margaret B. Seymour (Columbia), and Hon. Terry L. Wooten (Columbia). District Judges, U.S. Dist. Ct., Dist. of S.C. http://www.scd. uscourts.gov/Judges/distjudge.asp (last visited June 2, 2022). 44The District Court’s travels, as recounted and summarized in this paragraph, are well-articulated by District of South Carolina Judge Richard Mark Gergel’s article. Hon. Richard Mark Gergel, The Establishment and Early History of the District Court of South Carolina, S.C. Law. 32-39 (July 2015). 45Inasmuch as there were no separate circuit judges at that time, U.S. Supreme Court Justices like John Rutledge would “ride circuit,” sometimes sitting on a panel with a district judge. 46Biographical Directory of Article III Judges, 1789-present: Drayton, William, Fed. Jud. Ctr., http://www.fjc.gov/history/judges/ drayton-william (last visited June 2, 2022). 47Judicial Salaries: U.S. District Court Judges by State, 1789-1891, Fed. Jud. Ctr., http://www.fjc.gov/history/judges/judicial-salariesu.s.-district-court-judges-state-1789-1891 (last visited June 2, 2022) (hereinafter “Judicial Salaries”). 48CPI Inflation Calculator: $1,800 in 1790 Worth Today, Officialdata.org, https://www.officialdata.org/us/ inflation/1790?amount=1800 (last visited June 21, 2022). 49The Honorable Society of the Middle Temple is one of the four Inns of Court, the others being Inner Temple, Gray’s Inn, and Lincoln’s Inn. To be admitted to the bar, and practice as a barrister (trial/court lawyer), in England and Wales, one must be a member of one of the Inns of Court. 50General Minutes of the U.S. District Court, District of South Carolina (Dec. 14, 1789) (on file with the National Archives at Atlanta) (a copy on file with the author courtesy of Christy F. Allen and Brian Duffy).

51Id. 52Id. 53Id. 54Colonel William had a number of children and grandchildren; in a not uncommon scenario, some ended up on different sides of the Civil War. 55Biographical Directory of Article III Judges, 1789-present: Bee, Thomas, Fed. Jud. Ctr., http://www.fjc.gov/history/judges/beethomas (last visited June 2, 2022). 56“As the oldest university in the English-speaking world, Oxford is a unique and historic institution. There is no clear date of foundation, but teaching existed at Oxford in some form in 1096 and developed rapidly from 1167, when Henry II banned English students from attending the University of Paris.” University of Oxford History, U. of Oxford, http://www.ox.ac.uk/about/organisation/history?wssl=1 (last visited May 31, 2022). 57Amazing Facts About the USS Constitution, Past Factory, http://www.pastfactory.com/history/amazing-facts-about-theuss-constitution/2/?session_token=1de64e78-32a3-444d-9457ba3237eccd23&bucket_id=211-000001&edge=1 (last visited May 31, 2022). 58Biographical Directory of Article III Judges, 1789-present: Drayton, John, Fed. Jud. Ctr., http://www.fjc.gov/history/judges/draytonjohn (last visited June 2, 2022). 59Aside from his largely unsuccessful attack on Charleston, and his rear guard’s victory at the Battle of Stono Creek, in 1779, Major General Prévost unflatteringly is remembered for his army’s indiscriminate looting and related acts which antagonized the local populace. 60In 1865, the house was licked by flames, yet survived the Civil War and the ire of Union soldiers. Apparently, a member of the family, Doctor John Drayton, placed yellow flags around the perimeter of the abode, thus signifying that the house was being used for the treatment of smallpox. 61The Honorable Society of the Inner Temple, commonly known as the Inner Temple. 62Biographical Directory of Article III Judges, 1789-present: Lee, Thomas, Fed. Jud. Ctr., http://www.fjc.gov/history/judges/leethomas (last visited June 2, 2022). 63James Monroe (1758-1831) served as the fifth president of the United States. 64See Judicial Salaries, supra note 47. 65CPI Inflation Calculator: $2,500 in 1830 Worth Today, Officialdata.org, http://www.officialdata.org/us/ inflation/1830?amount=2500 (last visited June 21, 2022). 66Biographical Directory of Article III Judges, 1789-present: Gilchrist, Robert Budd, Fed. Jud. Ctr., http://www.fjc.gov/history/judges/ gilchrist-robert-budd (last visited June 2, 2022). 67Martin Van Buren (1782-1862) was the eighth president of the United States (1837-1841). 68Biographical Directory of Article III Judges, 1789-present: Magrath, Andrew Gordon, Fed. Jud. Ctr., http://www.fjc.gov/history/ judges/magrath-andrew-gordon (last visited June 2, 2022). 69Petigru (1789-1863) was a lawyer/statesman in South Carolina; he rose to become the state attorney general. Also instrumental in the legislature, he was opposed to state secession in 1860. 70Franklin Pierce (1804-1869) was the 14th president of the United States. 71In marked contrast, in June 1860, the federal court in Boston condemned the Wanderer as a slave-trading ship. 72Lincoln won the presidency with just 39.8 percent of the popular vote (with little support from the southern states); he won the electoral college with 180 votes. 73Andrew Gordon Magrath, Pipiwiki, (citing The Daily Dispatch, November 10, 1860), http://www.pipiwiki.com/wiki/Andrew_ Gordon_Magrath (last visited May 21, 2022). 74Judge Humphreys sat in Knoxville; he fled to Alabama where he was captured in December 1864 and made a prisoner of war. Having been impeached and convicted, he could never again hold federal office, but he practiced law in Nashville after the war, from 1866 until his death in 1880. 75Dwight Hughes, The Old Stone Fleet: A Failure and Complete, Emerging Civ. War (Dec. 7, 2016), https://emergingcivilwar. com/2016/12/07/the-stone-fleet-a-failure-and-complete/. 76Bruce Sterling, Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union, Wired (Dec. 7, 2019), http://www.wired.com/beyond-thebeyond/2019/12/declaration-immediate-causes-induce-justifysecession-south-carolina-federal-union/. 77George C. Rogers Jr. et al., A South Carolina Chronology, 1497-1992 (1994). 78The Stone Fleet consisted of a flotilla of old vessels (mostly whaling ships) loaded up with stone. The Union Navy deliberately scuttled the boats at the mouth of Charleston Harbor for the purpose of obstructing blockade runners and other Confederate supply-chains. 79Many area homes are painted with a shade of dark green known as “Charleston Green.” In the aftermath of the Civil War, the federal government dispatched buckets of black paint for home repair. Incensed, and fuming at the notion of using “Yankee Black,” the local residents mixed the black paint with a bit of southern “Rebel Yellow,” and, voila, a unique green hue. 80Magnolia Cemetery Trust, 70 Cunnington Avenue, Charleston, SC 29405. Magnolia Cemetery, Find a Grave, https://www.findagrave. com/cemetery/70585/magnolia-cemetery (last visited May 21, 2022). 81Biographical Directory of Article III Judges, 1789-present: Bryan, George Seabrook, Fed. Jud. Ctr., http://www.fjc.gov/history/ judges/bryan-george-seabrook (last visited June 2, 2022). 82Andrew Johnson (1808-1875) served as the 17th president of the United States (1865-1869). He assumed the presidency following the assassination of Abraham Lincoln; the only southern senator to remain loyal to the Union, in 1868, he became the first president to be impeached. (He was not convicted and served out his term, but he did not run for re-election). 83In 1891, rather than have different amounts of compensation for the district judges in the various states, Congress made all district judges’ salaries set at a uniform amount of $5,000 per annum. See Judicial Salaries, supra note 47. 84CPI Inflation Calculator: $3,500 in 1867 Worth Today, Officialdata.org, http://www.officialdata.org/us/ inflation/1867?amount=3500 (last visited June 21, 2022). 85Today, South Carolina is the 23rd largest state, with over 5 million inhabitants. 86Established in 1712, the court had the same powers as its English counterpart and generally followed English judicial practice. 87Judge John Faucheraud Grimké (1752-1819) was a strong pro-

slavery advocate and believer in the subordination of women. Grimké had 14 children born of wedlock; he also had several more children with slaves. He was a judge of the Superior Court of South Carolina and is perhaps best known for his compilation of the Public Laws of the State of South Carolina. 88On Nov. 19, 1794, representatives of the American government and Great Britain inked Jay’s Treaty, which settled certain outstanding issues unresolved since the birth of America. While unpopular with the American public, it did maintain peaceful relations and preserve U.S. neutrality. 89Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Recess appointments and the Court, SCOTUS Blog (Feb. 15, 2013), https://www.scotusblog.com/2013/02/scotus-forlaw-students-sponsored-by-bloomberg-law-recess-appointmentsand-the-court/. 90Rutledge holds the record for shortest tenure of a chief justice. In addition, he holds the dubious distinction of being the first Supreme Court nominee to be rejected by the Senate, and he also remains the only “recess appointed” justice not to be subsequently confirmed by the Senate. 91United States v. Peters, 3 U.S. (Dal.) 121 (1795). 92Talbot v. Jansen, 3 U.S. (Dal.) 133 (1795). 93Pierre Gustave Toutant Bearegard (1818-1893) (a/k/a “The Little Creole”; “Little Napoleon”; and “The Hero of Fort Sumter”). Pierre Gustave Toutant Bearegard, Masters Champs, https://gh.masterschamps.org/15566-pierre-gustave-toutantbeauregard-1818-1893.html (last visited May 31, 2022). 94Of Charleston’s many fine house museums, only the EdmondstonAlston House commands a magnificent view of Charleston Harbor. 95Adam Carruthers and J.C. Robertson, Virgil Aeneid, Book II, line 799 (W.A. Gage 1918). 96South Carolina’s other motto, Dum Spiro Spero (“While I Breathe, I Hope”), was the motto of the Irish Viscounts Dillion. This refers to the figure of Hope (Spes) on the state seal. Additionally, there are two other Latin mottos on the seal: “Quis separabit?” (Who will separate us?) and “Meliorem Lapsa Locavit” (Having fallen, she has planted a better one). Designed in 1776, while John Rutledge was president of the Provincial Congress of South Carolina, it was first used by Rutledge in 1777.

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Disability and Access to the Courts Three Decades Into the ADA: A Retrospective Review of Legal and Judiciary Policy Underpinnings

MAMADI K. CORRA, PH.D.

he federal judiciary has been at the forefront of the quest for securing basic rights for people

Twith disabilities1. From cases dealing with “freedom from involuntary servitude”2 to those that involved rights to “education,”3 treatment and “least restrictive environment,”4 “habilitation,”5 and “most integrated setting,”6 federal court decisions have had an important impact on the evolution of disability rights.7 Yet, until very recently, the right to access to courts themselves has not been clearly adjudicated. It was only in 2004, more than a decade after passage of the ADA, that the U.S. Supreme Court affirmed the constitutionality of Title II of the ADA “as it applies to the class of cases implicating the fundamental right of access to the courts.”8 In his majority opinion in Tennessee v. Lane, Justice John Paul Stevens wrote that Title II “seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review.”9 The opinion noted that these other guarantees included the right of access to courts protected by the due process clause of the Fourteenth Amendment.10

Three decades after passage of the ADA, this article takes a retrospective review of the statutory and judiciary policy underpinning access to courts for individuals with disabilities.11 In doing so, it analyzes the scope of statutory mandates for access to courts. And since, unlike state and local courts, the federal judiciary relies on judicial policy adopted by the Judicial Conference of the United States, the review also examines the scope of judiciary policy guides on disability and court access.

Accordingly, the goals of this article are three-fold. First, it seeks to identify key legal and policy provisions guaranteeing access to courts for individuals with disabilities. Second, it seeks to explore some limitations of such legal and policy provisions. And third, it examines some possible implications of such limitations.

The second part of the article begins with an examination of federal statutory and regulatory protections of access to courts,12 focusing on Title II of the ADA13 and Section 504 of the Rehabilitation Act.14 That discussion is extended in the third part to judiciary policy on access and disability. As part of this discussion, the statutory foundations of federal judiciary policymaking are outlined, albeit briefly. The article concludes with practical implications on court access for individuals with disabilities.

Statutory Provisions for Access to Courts

Two main federal antidiscrimination statutes provide a legal foundation for access to courts by individuals with disabilities. Section 504 provided the earliest legal basis for access via its nondiscrimination

Section 504

Since 1973, Section 504 has provided statutory protections for individuals with disabilities in a wide range of domains, including access to courts. Its antidiscrimination mandate declared that

[n]o otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.17

A key controlling phrase here is “any program or activity receiving federal financial assistance.” That is to say, the antidiscrimination mandate is limited to programs receiving such financial assistance.

The statutory definition of “program or activity” is set to “operations of a department, agency, special purpose district, or other instrumentality of a state or of a local government”;18 “a college, university, or other postsecondary institution, or a public system of higher education”;19 “a local educational agency … system of career and technical education, or other school system”;20 “a corporation, partnership, or other private organization, or an entire sole proprietorship”;21 an entity “which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation”;22 or any combination of these.23 The Civil Rights Restoration Act of 198724 amended various civil rights statutes, including Section 504, by defining the term “program or activity” to mean “all of the operations of ... a department, agency ... or other instrumentality of a State or of a local government.”25

ADA

Using Section 504 of the Rehabilitation Act as a foundation, the ADA sought to broaden the antidiscrimination mandate. Its five major sections extended the antidiscrimination mandate to the areas of “employment,”26 “Public Services,”27 “Public Accommodations and Services Operated by Private Entities,”28 “Telecommunications Services for Hearing-Impaired and Speech-Impaired Individuals,”29 and several “Miscellaneous Provisions.”30

As entities providing “public service,” courts generally fall within the purview of Title II of the ADA. Title II of the ADA extends the scope of Section 504 provisions to include government entities that do not receive federal financial assistance. Its antidiscrimination mandate provides that

no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.31

A “qualified individual with a disability” is defined as

an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services32 meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.33

Here, the definition of a “public entity” delimits the statute’s scope to state and local entities. “Public entities” include “(A) any state or local government; (B) any department, agency, special purpose district, or other instrumentality of a state or states or local government.”34

Scope of Applicability of Section 504 and the ADA to Courts

By definition, state and local courts are “instrumentalities”35 of state and local governments. Accordingly, state and local courts receiving federal funding fall within the purview of Section 504. By federal regulations implementing Section 504, all such programs and activities are required to “evaluate and modify [their] policies and practices that do not meet the [nondiscrimination] requirements.”36

Moreover, as “instrumentalities” of state and local governments, Title II of the ADA applies to state and local courts. And, importantly, the applicability of Title II of the ADA is not contingent upon receipt of federal funds. Unlike Section 504, Title II of the ADA applies to state and local courts, whether or not they receive federal funds. That is, all the operations of such courts are subject to Title II. Such courts are required to ensure that there are effective “methods for making aurally delivered materials available to individuals with hearing impairments ... methods making visually delivered materials available to individuals with visual impairments ... and ... other similar services and actions.”37

By contrast, federal courts are not instrumentalities of state orlocal governments and are thus not subject to Section 504 or Title II of the ADA.

Statutory Provisions With Applicability to Federal Courts

Though accessibility laws such as the ADA and Section 504 do not apply to the federal judiciary, there are some statutory provisions for access to federal courts. The Court Interpreters Act38 of 1978 is one such provision. This act governs access to federal courts for deaf, hard-of-hearing, and speech-impaired individuals.39

The Court Interpreters Act instructs the director of the Administrative Office of the United States Courts (AO)40 to “establish a program to facilitate the use of certified and otherwise qualified interpreters in judicial proceedings instituted by the United States.”41 And to “prescribe, determine, and certify the qualifications of individuals who may serve as certified interpreters … for the hearing impaired (whether or not also speech impaired) ….”42 It also authorizes appropriation of funds to these and other specified ends.

“Judicial proceedings instituted by the United States” are defined as

all proceedings, whether criminal or civil, including pretrial and grand jury proceedings (as well as proceedings upon a petition for a writ of habeas corpus initiated in the name of the United States by a relator) conducted in, or pursuant to the lawful authority and jurisdiction of a United States district court.43

The Court Interpreters Act of 1978 is therefore limited to “Judicial proceedings instituted by the United States.”44 That is, criminal, civil, pre-trial, and grand jury proceedings initiated by the United States.45 By subsequent policy of the AO, this was extended to all proceedings held under the jurisdiction of such courts.46

The Court Interpreters Act is also limited to proceedings held

under the jurisdiction of a “United States district court.” That is to say, “any court which is created by an Act of Congress in a territory and is invested with any jurisdiction of a district court established by [Congress]”.47 Moreover, a “court” is defined as “any court of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin Islands, and any Indian tribal court or courts of Indian offense.”48

It follows that the definition of courts here delimits the scope of the Court Interpreters Act to proceedings held in U.S. district courts. This effectively means criminal and bankruptcy court proceedings (as well as cases in which the U.S. is a plaintiff) held in the 94 U.S. district and bankruptcy courts. It excludes proceedings held in all of the U.S. appellate courts—the 13 U.S. circuit courts and the U.S. Supreme Court. It also excludes proceedings held in the U.S. specialty courts—the U.S. Court of Federal Claims and the U.S. Court of International Trade. Finally, this statute is considered to be specific to “communication disabilities.”49

A second relevant statute is the Architectural Barriers Act of 1968.50 This statute mandates removal of architectural and communication barriers in buildings and facilities—including all state, local, and federal court facilities—that are constructed or altered with federal funds. A key limitation of this statute is that it is restricted to buildings constructed after the enactment of the law. Because many courts in the United States are built prior to 1968, such court buildings are exempted from this law. Only alterations to facilities of such courts are subject to the statute.

Finally, the Federal Courts Improvement Act of 200051 gives the judiciary the authority to use appropriated funds to hire personal assistants for judges and judicial employees with disabilities. Under this legislation, which amends 5 U.S.C. § 3102, the head of each agency in the judicial branch may provide for personal assistants that the agency head determines are necessary to enable disabled court personnel (e.g., judge, judicial employee) to perform their official duties.

Federal law allows for the appointment of personal assistants for judicial employees with disabilities. This statute, however, initially allowed such an appointment with the appointee mandated to “serve without pay from the agency.”52 The Federal Courts Improvement Act of 2000 provided for the appropriation of funds to this end.

Importantly, the definition of “agency” in this statute includes “(A) an Executive agency; (B) the Library of Congress; and (C) an office, agency, or other establishment in the judicial branch.”53 A “handicapped employee” is defined as “an individual employed by an agency who is blind or deaf or who otherwise qualifies as a handicapped individual within the meaning of section 501 of the Rehabilitation Act of 1973.”54

Notably, 5 U.S.C. § 3102 (as amended by section 311 of Public Law No. 106-518, the Federal Courts Improvement Act of 2000) specifically applies to the federal courts. And, more importantly, it is not explicitly limited to U.S. district courts. It is applicable to “an office, agency, or other establishment in the judicial branch.”55

Yet, this amendment specifically focuses on employment accommodations. That is, it includes the provision (and, as amended, funding) to accommodate a disabled employee of the federal judiciary to perform his or her work-related duties.

The Federal Judiciary

The Judicial Conference of the United States

Based on a statute enacted in 1922, 28 U.S.C. § 331 established the Judicial Conference of the United States56 as the national administrative policymaking body of the federal judiciary.57 The general mandates of the Judicial Conference are to “make a comprehensive survey of the condition of business in the courts of the United States and prepare plans for assignment and transfer of judges to or from circuits or districts where necessary,”58 as well as to “submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business.”59

And 28 U.S.C. §§ 2071-2077, comprising a chapter titled “Rules of Courts,” provide statutory bases for judicial rulemaking. These statutes authorize the Supreme Court and “all courts established by Act of Congress” to “from time to time prescribe rules for the conduct of their business.”60 Moreover, the Judicial Conference is authorized to “review rules prescribed … for consistency with Federal law.”61 And it “may modify or abrogate any such rule so reviewed found inconsistent in the course of such a review.”62

Federal Judiciary Policy on Disability and Access

The Judicial Conference is on record for supporting equal employment and access.63 As an example, the Sept. 19, 1995, “Report of the Proceedings of the Judicial Conference of the United States” notes that

The judiciary has long been on record as supporting full access to judicial proceedings by all segments of the disabled community …. In an effort to improve access by individuals who are deaf or hearing-impaired and individuals with other communications disabilities, the Judicial Conference, modifying a recommendation of the Court Administration and Case Management Committee, adopted a policy that all federal courts should provide reasonable accommodations to individuals with communications disabilities. The Conference further agreed to require courts to provide, at judiciary expense, sign language interpreters or other appropriate auxiliary aids to deaf and hearing-impaired participants in federal court proceedings in accordance with guidelines prepared by the Administrative Office.64

The report further notes, however, that “[t]his requirement does not apply to spectators, nor does it apply to jurors, whose qualifications for service are determined under other provisions of law.”65

Importantly, it may be recalled that the Court Interpreters Act (28 U.S.C. §§ 1827 and 1828) was initially limited to “Judicial proceedings instituted by the United States.”66 The September 1994 report of the Judicial Conference reported that

The Judicial Conference approved a Committee recommendation that it seek an amendment to the Court Interpreters Act, 28 U.S.C. § 1827, to remove the prohibition on the use of appropriated funds to provide sign language interpreters to hearing-impaired parties and witnesses in proceedings not initiated by the United States. Such an amendment would provide judicial officers the discretion to decide what services to provide to hearing-impaired parties and witnesses, subject to the availability of funds.67

This authority is now set forth expressly in 28 U.S.C. § 1827(l), which reads

Notwithstanding any other provision of this section or section 1828, the presiding judicial officer may appoint a certified or

otherwise qualified sign language interpreter to provide services to a party, witness, or other participant in a judicial proceeding, whether or not the proceeding is instituted by the United States, if the presiding judicial officer determines, on such officer’s own motion or on the motion of a party or other participant in the proceeding, that such individual suffers from a hearing impairment. The presiding judicial officer shall, subject to the availabilityof appropriated funds, approve the compensation and expenses payable to signlanguage interpreters appointed under this section in accordance with the schedule of fees prescribed by the Director under subsection (b)(3) of this section.

With respect to employment, the March 1998 report of the Judicial Conference notes that

In keeping with its commitment to the principles of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990, the judiciary has sought to provide reasonable accommodations for its judicial officers and employees with disabilities, including providing equipment and devices that will allow members of the court family to perform job tasks, as well as funds to provide personal assistants for those involved in training, when necessary.68

That report further notes, however, that “the judiciary lacks explicit authority to use appropriated funds to hire personal assistants for judicial officers and employees with disabilities (e.g., readers for the blind and interpreters for the deaf) to assist in day-to-day work.”69 As a consequence,

[t]he Judicial Conference approved a Judicial Resources Committee recommendation that it seek legislation to include the judiciary in 5 U.S.C. § 3102 so as to give the judiciary explicit authority, comparable to the executive branch, to hire personal assistants for employees with disabilities.”70

Such explicit authority is now part of 5 U.S.C. § 3102.71

Upon enactment of the Federal Courts Improvement Act of 2000, the March 2001 Report of the Proceedings of the Judicial Conference of the United States conveys that on recommendation of the Committee on Judicial Resources,

the Judicial Conference took the following actions to implement this new law with respect to judicial officers and court employees:

(a) Approved creation of a personal assistant position under the Judiciary Salary Plan and the Court Personnel System to provide appropriate work assistance, as needed, to judges and judiciary employees with disabilities;

(b) Endorsed the Administrative Office’s use of classification flexibility currently existing under the Judiciary Salary Plan to classify personal assistant positions appropriately;

(c) Designated each chief judge, or the chief judge’s designee, as the “agency head” for judges and chambers staff, and each court unit executive as the “agency head” for employees of (d) Authorized use of central funding for personal assistant positions, as necessary, under the Judiciary Salary Plan for support of eligible judges and chambers staff;

(e) Authorized provision of an allotment to a court after receipt of a request for a personal assistant position under the Court Personnel System and an Administrative Office determination that AO guidelines were met; and

(f)Authorized the Administrative Office to develop guidelines for designated agency heads to use in determining when and in what circumstances the creation of a personal assistant position is appropriate.”72

The Guide to Judicial Policy provides the official guidelines of the Judicial Conference of the United States for the administration and operation of the federal judiciary. And rules and policies adopted by the Judicial Conference effectively have the force of positive law and are binding on federal courts and court personnel.

Importantly, the most specific policy statements of the conference on disability and the federal judiciary are delimited to the two areas of “communication disabilities” and employment. Thus, following 28 U.S.C. § 1827, the Guide to Judiciary Policy, Vol. 5, Ch. 2, § 255, “Services to the Hearing Impaired and Others with Communication Disabilities,” provides, in part:

(a) Under Judicial Conference policy, a court must provide sign language interpreters or other auxiliary aids and services to participants in federal court proceedings who are deaf, hearing impaired or have communication disabilities, and may provide these services to spectators when the court deems appropriate (JCUS-SEP 95, p. 75). This policy provides for services in addition to those required by the Court Interpreters Act (28 U.S.C. § 1827).

(b) The court should honor a participant’s choice of auxiliary aid or service, unless it can show that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental change in the nature of the court proceeding or an undue financial or administrative burden.

Similarly, following 5 U.S.C. § 3102, the Guide to Judiciary Policy, Vol. 12, Ch. 2, § 260, “Personal Assistants for Individuals with a Disability,” provides, in part:73

The Judicial Conference has adopted policy to implement reasonable accommodation for its judicial officers and employees with a disability, including, where appropriate, personal assistants, such as a reader to accommodate the needs of a blind individual or an interpreter for a person who is hearing impaired and uses sign language. JCUS-MAR 98, p. 23; JCUS-MAR 01, pp. 18-19, 25-26. This authority is now set forth expressly in 5 U.S.C. § 3102.

It follows that a key limitation is that the Conference’s specific policy statements on disability and accommodation are in the two areas of “communication disabilities” and employment. The specific scope of applicability of the former is in the area of accommodations to individuals with hearing and/or speech impairment. Whereas that of the latter is in the area of employment accommodations.

Conclusion

Two implications from this review of federal law and policy on disability access are directly apparent. First, state and local courts are mandated by law to provide access to individuals with disabilities. By contrast, a more limited number of statutes directly applies to federal courts. Instead, federal courts are guided by internal judiciary policy. And, a review of these policies revealed that they are limited to two specific areas (i.e., communication disabilities and accommodations in employment settings). 

Mamadi K. Corra is professor of sociology at East Carolina University (ECU), where he serves as graduate program director and chair of the Graduate Studies Committee for the sociology master’s program. Corra is also affiliate faculty with the ECU African and African American Studies Program; an associate editor of Immigration and Society, a specialty section of Frontiers in Sociology; and co-guest editor of the 2021 special issue “The Status of Black Sociologists in the 21st Century,” published in the Journal of Economics, Race, and Policy. Corra was the 2018-2019 American Association for the Advancement of Science Judicial Branch Science and Technology Policy Fellow in Residence at the Federal Judicial Center in Washington, D.C. ©2022 Mamadi K. Corra. All rights reserved.

Endnotes

1See Breita Linnell & Colleen Wieck, Access to Justice: The Impact of Federal Courts on Disability Rights, Fed. Law., Dec. 2012, at 48. 2Linnell & Wieck, supra note 1, cite at least ten federal lawsuits filed in the late 1960s and early 1970s against states that forced people with developmental disabilities to work while they were confined to a state institution. Key decisions providing injunctive relief include Souder v. Brennan, 367 F. Supp. 808 (D.D.C. 1973) and Jortberg v. Maine Dep’t of Mental Health, Civil No. 13-113 (D. Me. June 18, 1974), consent decree. 3Linnell & Wieck, supra note 1, cite two early court cases as foundational: Pa. Ass’n for Retarded Children et al. v. Commonwealth of Pa., 334 F. Supp. 279 (E.D. Pa. 1972) and Mills v. Bd. of Educ., 348 F. Supp. 866 (D.D.C 1972). In these two cases, the courts interpreted the Fourteenth Amendment’s due process clause to provide parents specific rights that included prior notice, the right to discuss changes in children’s education plan prior to being implemented, and the right to appeal decisions made by school districts. 4See Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971), 334 F. Supp. 1341 (M.D. Ala. 1971), 344 F. Supp. 373 (M.D. Ala. 1972), aff’d, 503 F.2d 1305 (5th Cir. 1974); Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974); New York State Ass’n for Retarded Children v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973). 5See Halderman v. Pennhurst, 446 F. Supp. 1295 (E.D. Pa. 1977), aff’d, 612 F.2d 84 (3d Cir. 1979), rev’d, 451 U.S. 1 (1981). 6See Olmstead v. L.C., 527 U.S. 581 (1999). 7Linnell & Wiech, supra note 1. 8Tennessee v. Lane, 541 U.S. 509, 531 (2004). 9Id. at 522. 10Id. at 532-34. 11As the foregoing discussion suggests, in the context of courts, the word “access” can have a variety of meanings, including that of the general public’s access to court facilities and material. Moreover, for individuals with disabilities, it “involves more than hiring a lawyer, filing a complaint, or proceeding through the numerous stages of the litigation process … [it] means finding an accessible parking place, getting up the steps, opening courthouse doors, finding the courtroom, sitting at counsel tables, entering the jury box, sitting on the bench, and communicating effectively with judges, lawyers, courtroom personnel, and the jury.” Marc Charmatz & Antionette McRae, Access to the Courts: A Blueprint for Successful Litigation Under the Americans With Disabilities Act and the Rehabilitation Act, 3 Md. L.J. Race, Religion, Gender & Class 333 (2003). The current article, however, focuses on legal and policy issues related with disability and access to courts. 12The issue of court access potentially has meaning to a large part of the population with a disability. A 2012 report released by the U.S. Census Bureau to coincide with the 22nd anniversary of the ADA indicated that nearly one in five people (about 56.7 million people or 19 percent of the population) in the United States had a disability in 2010. This number included 8.1 million who had difficulty seeing, including 2.0 million who were blind or unable to see; 7.6 million who experienced difficulty hearing, including 1.1 million whose difficulty was severe and 5.6 million who used a hearing aid; and 30.6 million who reported difficulty walking or climbing stairs, or used a wheelchair, cane, crutches, or walker. Notably, people in the oldest age group—80 and older—were about eight times more likely to have a disability as those in the youngest group—younger than 15 (71 percent compared with eight percent). The probability of having a severe disability is only one in 20 for those 15 to 24 while it is one in four for those 65 to 69. This suggests that the proportion of the population with a disability will continue to grow, as the babyboom generation continues to age. In fact, the 2012 census report noted that the total number of people with a disability increased by 2.2 million from 2005, when a similar report was released. Worldwide, well over 500 million have a disability, according to estimates. See generally Gary L. Albrecht & Lois M. Verbrugge, The Global Emergence of Disability, in Handbook of Social Studies in Health and Medicine 293–307 (2000); Matthew W. Brault, U.S. Census Bureau, Americans With Disabilities: 2010 (July 2012), https://www.census.gov/data/tables/2010/demo/disability/ p70-131.html; Robert L. Metts, The World Bank, Disability Issues, Trends, and Recommendations for the World Bank (February 2000), http://www.census.gov/prod/2008pubs/p70-117. pdf; Brian Wentz, et al., First Monday, Retrofitting Accessibility (Oct. 19, 2011), https://journals.uic.edu/ojs/index.php/fm/article/ view/3666/3077. 1342 U.S.C. §§ 12101-12213. 1429 U.S.C. § 794. 1529 U.S.C. § 794(a) 16Pub. L. 101-336, 104 Stat. 327 (1990). 1729 U.S.C. § 794(a). 1829 U.S.C. § 794(b)(1)(A). 1929 U.S.C. § 794(b)(2)(A). 2029 U.S.C. § 794(b)(2)(B). 2129 U.S.C. § 794(b)(3)(A). 2229 U.S.C. § 794(b)(3)(A)(ii).

2329 U.S.C. § 794 (b)(4). 24Pub. L. 100-259, 102 Stat. 28 (1988). 2529 U.S.C. § 794(b)(1)(a). 26Title I, 42 U.S.C. §§ 12111-12117. 27Title II, 42 U.S.C. §§ 12131-12165. 28Title III, 42 U.S.C. §§ 12181-12189. 29Title IV, 47 U.S.C. § 225. 30Title V, 42 U.S.C. §§ 12201-12213. 3142 U.S.C. § 12132. 32“Auxiliary aids and services” include “qualified interpreters ... qualified readers, taped texts ... acquisition or modification of equipment or devices; and ... other similar services and actions.” 42 U.S.C. § 12102(1). 3342 U.S.C. § 12131(2). A similar definition is found in the ADA regulation. See 28 C.F.R. § 35.104. 34Pub. L. 101-336, Title II, § 201, July 26, 1990, 104 Stat. 337. 3529 U.S.C. § 794(b)(1)(A). 3628 C.F.R. § 42.505; see generally 28 C.F.R. §§ 42.501–540. 3742 U.S.C. § 12102(1). 38Pub. L. 95-539, 92 Stat. 2040 (1978), classified principally to 28 U.S.C. §§ 1827-1828. 3928 U.S.C. § 1827(b)(1). 40The Administrative Office of the U.S. Courts (AO) is the administrative wing of the Federal Judiciary and is overseen by the Judicial Conference of the United States. By statute, the AO is supervised by a director and a deputy director appointed and subject to removal by the chief justice of the United States. See 28 U.S.C. § 601. 4128 U.S.C. § 1827(a). 42Id. at § 1827(b)(1). 43Id. at § 1827(a). 44Other issues may be noted here. For example, issues outside of the courtroom, including mediation/settlement situations; programs mandated by courts, e.g., court-mandated alcohol rehabilitation classes; and issues related with payments, i.e., 28 U.S.C. § 1920(6) (interpreters as a cost to assess to a losing party). 45 8 U.S.C. § 1827(j). 46See Charmatz & McRae, supra note 11. 47Id. 4828 U.S.C. § 1827(j). 49See Admin. Office of the U.S. Courts, Guide to Judiciary Policy, vol. 5 (Court Interpreting), §§ 255, 370 (2017), https://www.uscourts.gov/sites/default/files/guide_vol05_0.pdf. 50Pub. L. 90-480, 82 Stat. 718 (1968), classified to 42 U.S.C. §§ 41514157. 51Pub. L. 106-518, § 311, 114 Stat. 2410, 2421 (2000) 52Id. at § 311(b)(1). 535 U.S.C. § 3102(a)(1)(A)-(C). 54Id. at § 3102(a)(2). 555 U.S.C. § 3102(a)(1). 56The current composition of the Judicial Conference includes the chief justice as chair, the 13 chief judges of the circuits, 12 district judges elected by the Article III judges of each circuit, and the chief judge of the Court of International Trade. 57The statute, 28 U.S.C. § 332, is based on an earlier statute that established the Circuit Judicial Council in 1939 as a parallel body at the circuit level. It comprises the chief circuit judge and equal numbers of circuit and district judges. 5828 U.S.C. § 331. 59Id. 6028 U.S.C. § 2071(a). 61Id. 62Id. 63See, e.g., Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 50 (Sept. 20, 1994), https://www.uscourts.gov/ sites/default/files/1994-09_0.pdf (use of appropriated funds for sign language interpreters); id. at 68 (accessibility of courtrooms and related judiciary facilities); Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 58 (Sept. 19-20, 1979), https://www.uscourts.gov/ sites/default/files/1979-09.pdf; Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 75 (Sept. 19, 1995), https:// www.uscourts.gov/sites/default/files/1995-09.pdf (services to persons with communication disabilities); Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 23 (Mar. 10, 1998), https://www.uscourts.gov/sites/default/files/1998-03_0. pdf (personal assistance for individuals with disabilities); Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 18-29 & 25-26 (Mar. 14, 2001), https://www.uscourts.gov/ sites/default/files/2001-03.pdf (reasonable accommodation for employees with disabilities). 64Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 75 (Sept. 19, 1995), https://www.uscourts.gov/sites/ default/files/1995-09.pdf. 65Id. 66See supra note 38 and accompanying text. 67Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 50 (Sept. 19, 1994), https://www.uscourts.gov/sites/ default/files/1994-09_0.pdf. 68Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 23 (Sept. 15, 1998), https://www.uscourts.gov/sites/ default/files/1998-09_0.pdf (Personal Assistance for Individuals with Disabilities). 69Id. 70Id. 71See Pub. L. No. 106-518, 114 Stat. 2421. 72Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 25-26 (March 14, 2001), https://www.uscourts.gov/sites/ default/files/2001-03.pdf. 73Yet § 210.10 of this same policy, “Applicability,” reads, in part: “(a)The policies in this chapter apply to all court units within the judiciary other than the U.S. Supreme Court. (b)The policies in this chapter do not apply to: •The Federal Judicial Center, •The United States Sentencing Commission, •The Judicial Panel for Multidistrict Litigation, or

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South Carolina Is a Leading Domicile for Companies to Form Their Own Captive Insurer

JOE MCDONALD AND JOHN P. (JAY) SEIBELS JR.

outh Carolina is home to 182 active captive

Sinsurance companies. What is a captive insurer? Generally, it is an insurance company formed, owned, and controlled by its insureds. A captive’s owner places its own capital at risk and then shares in the underwriting profits and losses associated with its corporate and operational risks. It is best understood as an alternative way for a company to finance its risks that are insured by the traditional market, and captives are often described as alternative risk transfer vehicles.

A Brief History

Captives are not new. According to the National Association of Insurance Commissioners, captive insurance companies have been in existence for over 100 years. The last 30 years have seen tremendous growth. Some of that growth was fueled by Congress’ enactment of the Federal Liability Risk Retention Act of 1986, 15 U.S.C. § 3901-3906 (LRRA). The LRRA amended and expanded the Product Liability Risk Retention Act of 1981.

The LRRA was signed by President Reagan in response to the insurance market crisis of the mid 1980s. At that time, access to commercial liability insurance for a variety of industries and professions was severely restricted. The crisis was best summed up by the March 24, 1986, cover of Time magazine, which announced “Sorry, America, Your Insurance Has Been Canceled.”

The LRRA preempts many of the insurance regulatory requirements of state law. It permits businesses engaged in the same or similar commercial activities that expose them to the same or similar liability risks to band together as a “group.” Healthcare systems are an excellent example.

The group may form a corporation and obtain an insurance license from a given state, commonly referred to as its domicile, which becomes its sole regulator. Once licensed, the corporation can assume and spread all or any portion of the liability exposure of its group members via the issuance of insurance policies to its members/owners. Liabilities under these policies may be reinsured via the worldwide reinsurance market. The members may be conducting business in multiple states. The regulators in those states must defer to the regulators of the domiciliary state, which is a deviation from how regulators monitor traditional insurance companies.

Importantly, the shares of the corporation are exempt from the registration and reporting requirements of federal and state securities laws. The exemption simplifies formation and capitalization of the entity and eliminates costs that would otherwise arise from securities law compliance.

Since 1986, hundreds of captive insurers known as risk retention groups (RRGs) have been formed under the authority of the LRRA. According to statistics compiled by the Risk Retention Reporter, in 2022, South Carolina is second only to Vermont as home to the most RRGs. South Carolina’s position relative to Vermont is noteworthy because Vermont had a 19-year head start in captive insurance regulation.

Early on, South Carolina regulators at the Department of Insurance committed to grow the domicile. They committed to become experts in RRG regulation, in particular, and adopted reasonable

statutory interpretations and enforcement practices. Industry practitioners responded by bringing their clients to the state.

The business of RRGs is quite diverse. Healthcare risks, including professional, medical, and nursing home liability, make up the largest lines of insurance offered by RRGs nationally when measured by premium. These RRGs are formed by hospital systems, medical practices, and long-term care organizations. There are a number of legal malpractice and other professional negligence liability RRGs operating today, making up the second largest lines of insurance by premium. RRGs are particularly useful to associations because association members are already aligned in many respects, including by business sectors. We are seeing significant growth in commercial transportation RRGs, primarily due to the increasingly hard market for commercial trucking insurance. The RRG structure permitted by Congress is uniquely suited to respond to changing insurance market conditions in a given insurance line like transportation.

RRGs choose to domicile in one of only a few states (e.g., South Carolina) that have a committed regulatory framework to monitor solvency and consumer protection. Even so, RRGs write most of their business in other states. Some nondomiciliary states have their own interpretation of the LRRA’s preemption provisions and seek to impose state specific regulatory requirements in the form of registration standards, fees, taxes, and coverage provisions.

RRGs are specifically exempt from any state law or rule that would discriminate against a RRG or any of its members, but not from laws that are generally applicable to persons or corporations.1 Nondomiciliary state requirements have been challenged on the basis that they are either preempted or violate the LRRA’s nondiscrimination provisions. In National Risk Retention Ass’n v. Brown, an industry trade group successfully challenged a state law that mandated nondomiciliary RRGs to maintain certain amounts in capital and surplus and to post either funds or a bond with the state’s commissioner of insurance. The court found that to allow a state to require a risk-retention group “chartered in another state to comply with a second state’s financial responsibility requirements before it can do business in the second state would frustrate the goals of the federal Act and would allow the second state to avoid the federal exemption from state regulation carefully set out in § 3902(a)(1).”2

The U.S. Government Accountability Office (GAO) issued a report in 2012 that highlighted conflicting interpretations by various state regulators and among district courts that have resulted in the inability of some RRGs to provide coverage in some states. Among other observations, the GAO stated that differences among the courts “on issues such as permissible coverage types and what constitutes discrimination under LRRA can further contribute to an uncertain regulatory environment for RRGs and state insurance regulators.”3 The GAO recommended that Congress consider the merits of clarifying provisions on registration requirements, fees, and coverage.4 Nevertheless, Congress has not enacted any amendments to the LRRA.

RRGs are just one type of captive insurer. While an RRG is permitted to insure only liability risks, other types of captives are not so restricted. Many captives are formed by a single parent company whose goal is to establish a stable alternative to the offerings of traditional insurance coverages that the prospective captive owner has been purchasing for years. The owner will have observed that its insurance costs do not appear to be connected to the owner’s actual loss experience. Any entity of sufficient scale that already manages its risks prudently, and sees no reward from the traditional market, should consider forming a captive. The same is true of members of any industry where the cost of insurance is volatile and its availability uncertain.

One of the simplest captive structures, and one that is quite common, is a captive that insures its parent’s high deductible on their traditional policies. In this way, the parent is financing the deductible risk they are willing to take, or were already taking, but doing so in a more tax-efficient way while also allowing for some reduction in premium paid to the traditional insurance companies. As the captive matures, building capital and surplus over time, it can be utilized by its owner for other risks.

A captive also affords its owner direct access to the reinsurance market. Many practitioners consider this benefit to be the best reason to form a captive. Reinsurers are utilized as a backstop when an insurance company, including a captive, sustains losses. Reinsurers also can serve as a valuable partner to the captive owner, allowing the owner/insured the opportunity to design a risk profile unique to the owner’s goals.

South Carolina Captives

A South Carolina captive insurance company, including any South Carolina RRG, is simply a legal entity (usually a stock corporation or limited liability company) formed pursuant to the South Carolina corporate code. It is recognized as a separate tax-paying entity from its owner for federal tax purposes.

The first step when designing a captive structure is to engage a captive insurance professional to perform a feasibility study that analyzes the owner’s historic insurance costs and loss experience. The feasibility study will include proforma financial statements for the proposed insuring entity. It will also illustrate the tax benefits that may inure to the owner of a well-structured captive. If the owner decides to proceed, the proposed captive must go through a rigorous, detailed licensing application process with the South Carolina Department of Insurance (SCDOI). It may not commence business until it obtains a certificate of authority from SCDOI.

Once licensed, the captive looks and functions just like any other insurance company. It has a board of directors and officers, at least some of whom possess knowledge of the business of insurance in general and the parent’s insurance risks in particular. These individuals owe duties of good faith and loyalty according to the South Carolina corporate code. South Carolina insurance regulations also require conflict of interest disclosures to the company, its owner, and regulators.

The captive operates independently of its owner, to whom it will issue policies of insurance to cover a wide variety of risks. Premiums are set by an independent actuary, who also periodically opines on the adequacy of the captive’s insurance reserves. A captive’s financial statements are subject to annual audits. These efforts go to ensure both good governance and solvency.

Often, the captive, the owner, and the underlying risks to be insured will have no particular connection to South Carolina. The owner is drawn to South Carolina because of its business-friendly environment and extensive network of top service providers and the expertise of the regulatory team at SCDOI.

Regulation in South Carolina

When South Carolina entered the captive industry, passing its enabling legislation in 2000, SCDOI recognized three essentials for South Carolina to become a successful domicile:

1. Industry-friendly legislation and a stable regulatory framework, supported by a qualified, forward-thinking insurance regulatory team focused on alternative risk financing. 2. An emphasis that South Carolina is a place where business is conducted in a pleasurable atmosphere. 3. A sound infrastructure of necessary service providers and professionals in the state.

The individuals who collectively make up the captive insurance industry in South Carolina excel in each of these areas and maintain a high standard. South Carolina is set apart from other captive domiciles. Its continued success is a result of almost 22 years of partnerships; the mutual and collective effort between the public and private sectors; and the determination to pursue excellence, ingenuity, and always quality over quantity.

South Carolina has become a mature captive domicile with a world-class network of service providers who have a significant physical presence and investment in the state. These industry experts are complemented by a group of highly experienced regulators who have acquired in-depth knowledge of the risk characteristics of a wide range of industries and business segments. SCDOI has an autonomous captive division that is charged to grow the industry with high-quality businesses. The current portfolio of captive companies in South Carolina is representative of several industries led by healthcare, energy, transportation, financial services, and manufacturing.

The economic impact of the captive industry in South Carolina is significant. An academic analysis by the University of South Carolina’s Moore School of Business found that South Carolina captives have a $56.8-million annual economic impact on the state. The tax revenue generated from the $3.1 billion annual premium volume is substantial. While a small percentage of this revenue is retained by SCDOI and goes to fund its captive division, the rest is deposited into the general fund and supports the state’s annual budget.

The overall economic impact is not limited to taxes charged on premiums or licensing and renewal fees. The University of South Carolina study determined that the captive industry creates roughly 400 high-wage professional jobs and over $22 million in labor income for the state. South Carolina attracts knowledgeable captive practitioners from law, accounting, actuarial, and investment management firms. These professionals offer captive owners the full range of services required to efficiently form and effectively manage even the most complex captive insurance companies.

Nine of the 10 largest worldwide captive management firms have permanent offices and staff in Charleston, which is the nerve center of the captive industry in South Carolina. With its rich history, charm, beaches, world-renowned golf courses, shopping, and restaurants, Charleston has seen extensive growth in recent years. All of these features make for an appealing destination for board meetings and a desirable location in which to live and work.

State law requires each captive owner to appoint a South Carolina resident to the captive’s board of directors. Each company is required to conduct at least one board meeting in the state. Having licensed well over 300 captives in the past 22 years, these requirements have a significant cumulative effect on the state’s economy. Since 2000, it is estimated that the industry has generated total economic activity in excess of $539 million for South Carolina.

Captive regulation is unique in the world of insurance regulation. It strikes a balance between the forward-thinking creativity of the private sector and the formulaic, systematic patterns and rules that must be applied by the public sector. The industry is particularly rewarding for legal practitioners because there are very few limits to the creativity that can be applied in risk finance. Jeff Kehler, a longtime South Carolina regulator, would often quip, “If you have seen one captive, you have seen one captive.”

In South Carolina, reputation is of the utmost importance. The captive insurance division of SCDOI has a reputation of being friendly, flexible, and fair. The captive team appreciates innovation and creativity, and is open to novel approaches and ideas, which are a few of the many reasons so many great companies choose South Carolina as their captive domicile.

Regulators are charged with solvency-monitoring and consumer protection. The captive space is unique in that the insurance “consumer” is also the owner of the captive where risks are transferred and financed. South Carolina regulators recognize these circumstances and apply a thoughtful, measured approach to captive regulation. They know captive regulators ought to focus on an appropriate application of regulatory standards based on the “principle of proportionality.” They remain conscious of the nature, scale, and complexity of the entities being regulated as well as the level of insurance sophistication of the people and companies involved in any program.

Capital and surplus requirements vary by type of captive. In South Carolina, the minimum capital and surplus requirement for a parent captive is $250,000. The minimum for RRGs is $500,000, and the minimum for association captives is $750,000.

Owners willing to commit the capital required to form and operate a captive responsibly, in compliance with a domicile’s regulations and statutory standards, should be applauded. They are often rewarded for their success through increased risk awareness and control within their core businesses, underwriting, and investment profits, and with power to leverage the captive to support parent company operations through the myriad of options that a captive can provide. An owner’s increased attention on risk will further enhance understanding and management, which will ultimately drive down the total cost of risk and commercial insurance expenditures while creating efficiencies that may have previously been overlooked, unknown, or thought to be unattainable.

For RRGs, South Carolina regulators look for quality membership in license applications and like to see that the members of the RRG possess the financial wherewithal to stand behind and support the risk-taking entity. Initially, the members must be able to capitalize the RRG properly. As the program matures, if there is an adverse experience, members should have the foresight and willingness to step in and further support the vehicle.

Single parent captives comprised over 40 percent of South Carolina’s captives last year. A total of 46 RRGs and dozens of special-purpose captives call South Carolina home. Other captive classifications based in the state include protected and segregated cells and branch, association, and special purpose financial captives.

Looking Ahead

The same conditions that brought about the need for the LRRA in 1986 have returned. It may not make the cover of Time magazine again, but we are in a hard insurance market internationally. A hard market is characterized by an increase in costs and a decrease in capacity. Commercial auto liability coverage, especially, has seen extreme tightening and a lack of appetite from the commercial market.

Social inflation in the form of rising litigation costs and their impact on insurers’ claim payouts, loss ratios, and, ultimately, how much policyholders pay for coverage is a huge driver of the hardening market. According to a recent Joint Industry Forum conducted by the Insurance Information Institute, excessive verdicts are driving up the cost of commercial insurance and limiting capacity for certain lines of coverage.

Increased costs and a lack of capacity have historically been the catalysts for companies to turn their attention to the alternative market and, specifically, captives. There has been record growth worldwide in the number of captive licenses issued and renewed attention by existing owners looking to expand their captives and use them in new ways to support the operations of parent companies. Captive owners know they can provide for themselves that which the traditional market will not provide on terms or prices that are acceptable.

We expect South Carolina to capture its share of the growth coming as a result of market forces. Regulators in South Carolina are available and want to add value to those they serve and take pride in their responsiveness and communication. The service provider network is engaged with the regulators to constantly improve the domicile. South Carolina regulators maintain an open dialogue that benefits the domicile and all stakeholders in the captive space—a dialogue that is based on trust. There is always room to improve. Both regulators and service providers need to know what they’re missing and how they can do things better together.

Captive insurance companies, given the value they offer owners, have become mainstream in the world of risk management. Many practitioners suggest that what was once an “alternative” risk financing tool should be given serious consideration by any company’s risk manager as it considers risk costs, financing, and transfer. Legal professionals in the field can be better advisors once they understand these sophisticated insurance entities. 

Joe McDonald is the director of captives for the South Carolina Department of Insurance. He leads the team that is responsible for the licensing and regulation of captive companies and risk retention groups, while also marketing South Carolina as a premiere captive domicile. He serves on the Captive Insurance Companies Association NEXTGen Committee and is actively involved in various efforts to promote the captive insurance industry. John P. (Jay) Seibels Jr. is the founder of the Seibels Law Firm, PA of Charleston, S.C. He formed the firm in 2001 at the same time South Carolina’s captive insurance industry began. He represented South Carolina’s first licensed risk retention group from concept to license and has been engaged in the industry ever since.

Endnotes

115 U.S.C. § 3902(a)(1) and (4). 2927 F. Supp. 195, 199–200 (M.D. La. 1996). 3U.S. Gov’t Accountability Off., GAO-12-16, Risk Retention Groups: Clarifications Could Facilitate State’s Implementation of the Liability Risk Retention Act 33 (2012). 4Id.

Disability and Access to the Courts continued from page 64

•The Administrative Office of the U.S. Courts (AO). Note: Each of the above organizations is responsible for identifying and implementing its own fair employment policies and practices.” United States Courts, Workplace Conduct and Protections Policy, Vol. 12, Ch. 2 (Sept. 17, 2019), https://www. uscourts.gov/sites/default/files/guide-vol12-ch02_oji-2019-09-17post-workplaceconduct_protections.pdf.

The Critical Role That Men Play in Thwarting Bias and Hostility Toward Women

RACHEL V. ROSE AND MARK KLEIMAN

reviously, The Federal Lawyer published

P“The Subtle and Not-So-Subtle Impact of Bias on Women and Minorities,” which received several positive comments regarding raising awareness of the important issue of bias and the related notion of mansplaining.1 The most significant question received from men was “what can I do to change things?” This inquiry prompted us to write this article as a follow-up.

Men play a crucial role in thwarting bias and hostility towards women, especially in the legal profession. First, consider the statistics that were published by the American Bar Foundation and the American Bar Association’s (ABA’s) Commission on Women in the Profession:2

• Gender differences among lead counsel from private firms follow a 1:3 female:male gender ratio—or worse.3 • Among all women who are lead counsel in civil cases, 40 percent represent plaintiffs and 60 percent represent defendants.4 • Among all attorneys appearing in criminal cases, 67 percent are men.5

As professor and former trial lawyer Lara Bazelon notes, “[i]n more than a decade of arguing cases in court, I’ve witnessed the stubborn cultural biases female attorneys must navigate to simply do their jobs.”6 This notion is not limited to the courtroom, and if women are appropriately “assertive” or heaven forbid “aggressive” just like men, they are not perceived in the same way. Simply stated, “women have to act like it [unprofessional attacks based on sexism with the intent to humiliate] doesn’t bother [them].”7 Deborah Rhode aptly stated how women attorneys are supposed to behave among the “double standard and double bind”—not being perceived as “too ‘soft’ or too ‘strident,’ too ‘aggressive’ or ‘not aggressive enough.’”8 Lawyers have an obligation—both ethically and legally—to represent their clients;9 however, what seems to be absent is a counterbalancing obligation to manifest respect for and professionalism toward female opposing counsel.

The term gaslighting is “used informally to describe someone who persistently puts forth [a] false narrative” in an effort to cause “another person to doubt [her] own perceptions.”10 To be clear, although this article is about gaslighting and bias encountered by women, members of marginalized races, sexual orientations, and religions, as well as men, also experience these phenomena. And, many men and women have healthy interactions.

So, what can men do, and why don’t they do it more often?

First, advocacy is painful. It calls on men to leave their comfort zones and invite conflict with peers and sometimes superiors by “calling out” another male. Second, it is critical for men who choose to take on this role to find sources of motivation and support.

This article will (1) delve into the practice of mansplaining11 and gaslighting and the psychology behind these behaviors; (2) shift perspective and behavior; and (3) conclude with examples. Men can and do play a critical role in changing the tide in the legal profession; for those men who have already taken up the torch, we both applaud and appreciate the positive impact you are making.

“The worst criticism seeks to have the last word and leave the rest of us in silence; the best opens up an exchange that need never end.”12 In essence, there is a spectrum of individuals and situations. This spectrum enables us to group men into three categories: (1) men who automatically advocate for women, even during negotiations (Winter Soldiers); (2) decent men who advocate for women in some situations but “freeze” when placed in a herd (Sunshine Feminists); and (3) men who are flagrantly biased and discriminate against women (Frightened Resisters).13

Category 1—Winter Soldiers

Winter Soldiers are the ideal male allies and can be counted on to speak up for equality and fair treatment even when the going gets rough. They will immediately and without hesitation call out men who denigrate women or deny their expertise, even in difficult professional situations. Winter Soldiers will not shy away from opposing sexism or racism publicly and will continue to have the difficult conversations in one-on-one settings “behind the scenes,” even when at risk of being ostracized. Winter Soldiers, including many gay men, embody the concept of being good allies. There have always been some men like this—it is just that the legal profession, and indeed the world, needs more of them.

Category 2—Sunshine Feminists

Sunshine Feminists are genuinely decent and promote women and marginalized groups or individuals when they are safely among like-minded colleagues. But, they lose their voices when placed in a herd of males or white people. These are the summer soldiers or sunshine patriots, as Thomas Paine called them in his pamphlet The Crisis, published in the bitter winter of Valley Forge. The Sunshine Feminist, or anti-racist, knows what is right, and will do it when it is safe, but will freeze and lose his voice when things get tough.

Transitioning from a Sunshine Feminist into a Winter Solider requires, as Virginia Woolf espouses, going beyond the familiar, the safe, the known, and into the broader world, as well as confronting unconscious bias. Lasana Harris, a male neuroscientist and experimental psychologist at University College London, along with his female colleague at Princeton University, Susan Fiske, researched “how we think about other people’s minds, known as social cognition, and more specifically on how we perceive others.”14 Their research on unconscious bias revealed a disconcerting notion: “the surprising ease with which we can stop ourselves from having empathy for the plights of others.”15 This is distinguishable from a person who has encountered trauma, such as rape, which causes the brain to trigger. Both situations can, in most cases, either be mitigated or overcome; however, for the latter situation, therapy, training, and reframing are critical components. In both situations, the amygdala region of the brain, which responds to threats and processes fear, springs into action. The key for a Sunshine Feminist male is to appreciate why he “freezes” when placed in a herd instead of actively speaking up like a Winter Soldier.

Category 3—Frightened Resisters

Frightened Resisters were well described in a series of articles in The Atlantic from 2012 and were called out in another magazine, n+1, the following year. 16 The underlying message: “Listen up ladies,” these articles say. “We’re here to talk to you in a way that’s limited and denigrating.”17 These men fit neatly—and sadly—into Judith Herman’s perspective, which simultaneously addresses different traumatic situations—rape, child molestation, and war:

Secrecy and silence are the perpetrator’s first line of defense. If secrecy fails, the perpetrator attacks the credibility of his victim. If he cannot silence her absolutely, he tries to make sure that no one listens …. After every atrocity, one can expect to hear the same predictable apologies: it never happened; the victim lies; the victim exaggerates; the victim brought it on herself; and in any case it is time to forget the past and move on. The more powerful the perpetrator, the greater his prerogative to name and define reality, and the more completely his arguments prevail.18

Thankfully, very few Frightened Resisters, who aptly can be described as bullies, have actual instead of perceived (i.e., legend in their own minds) power or standing. In law, not every male trial lawyer, despite successes, has the gravitas of a Clarence Darrow. Ironically, those male trial lawyers with the most gravitas tend to be secure and confident (not arrogant) and have ample financial means, so they don’t need to exploit and bully women professionally to get ahead. Not every trial lawyer with gravitas is a true Winter Soldier, either.

It is telling how differently Winter Soldiers and Frightened Resisters (and Sunshine Feminists if they are trapped in the herd) perceive a woman’s responses. Recently, one of the authors of this article reviewed a series of different texts and emails with various male counsel. Male allies saw the woman as persistent and professionally assertive. The Frightened Resisters whined that she was “aggressive” and a “bitch.” The irony of the Frightened Resisters is that if a male colleague had finally struck back after prolonged abuse, this would have been respected—highlighting again why we need an army of Winter Soldiers.

Some men eventually reflect on their actions and change. David Brock, a journalist who authored articles and books disparaging Anita Hill, a woman who testified about her experience before a Senate Committee during the confirmation proceedings of Justice Clarence Thomas, repented a decade later. “[D]oing everything I could to ruin Hill’s credibility, I took a scattershot approach, dumping virtually every derogatory—and often contradictory—allegation I had collected on Hill from the Thomas camp into the mix …. She was, in my words, ‘a little bit nutty and a little bit slutty.’”19 For women, standing up and being a pioneer takes extraordinary courage. Hill is often credited with bringing awareness to workplace sexual harassment, which led to Congress passing the Civil Rights Act of 1991.20

Learning From Other Men—Shifting Perspective and Behavior

“The loveliest trick of the devil is to persuade you he doesn’t exist.”21

Men who gaslight know what they are doing. Far more challenging is the man who genuinely believes his disrespect for female colleagues is not really because they are women, but because they are unworthy and happen to be women. The problem of implicit sexism is a common one and must be described and understood to correct it. The evidence shows that, just like disguised attitudes of racism toward Black job applicants, men construct evaluation criteria that allow them to genuinely feel they are fair and objective while discriminating against women.22 Yale researchers showed that when evaluating candidates for jobs that (then) were traditionally

male or female, the evaluators did not simply define merit in a way that favored a specific gender. Rather, they tailored their weighting of the job criteria to favor whatever qualities were possessed by the individual applicant of the desired gender.23 Thus, if a female candidate for police chief was described as “streetwise” and wellliked by patrol officers, male evaluators placed greater emphasis on academic and administrative qualifications. But, when faced with a female candidate with a management degree and experience, such qualifications would be rated lower to favor male candidates who were “streetwise.”

Importantly, the more bias male evaluators had, the more they perceived their judgments as objective and nondiscriminatory.24 This defines one of the biggest problems women encounter—overcoming discrimination from men who don’t recognize they are discriminating. It also highlights the areas where male allies can and should intervene to support women and minorities by working to change institutional norms, visibly advocating and modeling supportive behavior in group settings, and providing honest and thoughtful interpersonal support.

Decades of corporate diversity training has made it painfully clear that traditional training models do not work.25 Although some of this reflects white and male resistance to mandatory training, there is also evidence that the emphasis on implicit bias as something that is reflexive and involuntarily lets people off the hook and leads to more discrimination. (Although newer, more empowering and interactive training models have so far shown more positive results.26) Formal and well supported mentorship programs have shown modest improvements in discriminatory employment practices, as have deliberately structured network opportunities. But the most consistent and effective improvements have come from transparency in pay, promotion, and evaluation practices; making managers strictly accountable for improving diversity and inclusiveness; and aggressive recruiting by managers from diverse candidate pools, which affords those managers with direct, personal contact with qualified women and ethnically diverse job entrants.27

Interpersonal support may be valued, but it is certainly the weakest and most performative version of allyship. Nearly every woman and every person of color has binders full of stories of receiving “I’m so sorry they said that” calls after horrible meetings or problematic encounters. Although bystanders must be excused for not intervening against armed police to save George Floyd’s life, the stakes are much lower in conference rooms, break rooms, and committee meetings. Being an ally means being visible. It means speaking up when the contributions of women or people of color are ignored, or when their observations are credited to white males in the room. It means supporting people when they are attacked or belittled, and it means promoting their ideas and aspirations—and publicizing and cheering their accomplishments.28

A recent Harvard Business Review article shrewdly accepts that, while “bias itself is devilishly hard to eliminate, it is not as difficult to interrupt.”29 The authors also identify the notion that becoming a bias disrupter is critical to a great manager, as well as ways to address the bias.30 The following action items are helpful in transitioning from Sunshine Feminists to Winter Soldiers. 1. Fairness in hiring: (1) insist on a diverse pool of candidates; (2) establish objective criteria, define “culture fit,” and demand accountability; (3) limit referral hiring; and (4) structure interviews with skills-based questions.31 2. Day-to-day management: “[w]omen report doing about 20% more ‘office housework’ on average than their white male counterparts, whether it’s literal housework (arranging for lunch or cleaning up after a meeting), administrative tasks (finding a place to meet or prepping a PowerPoint), emotional labor (‘He’s upset—can you fix it?’), or undervalued work (mentoring summer interns).” A suggested fix includes setting up a rotation for “office housework.”32 3. Meetings: “Our study of lawyers found that half of women report being interrupted in meetings at higher rates than their male peers. Another study found that in meetings involving more men than women (a common scenario), women typically participated about 25% less often than their male coworkers did. … Is a woman ‘emotional,’ or a black man ‘angry,’ while a white male is ‘passionate’?” Tracking assignments and airtime in meetings can change it. Suggested fixes include (a) creating and enforcing interruption policies; and (b) calling out instances of “bropriating” or “whipeating”—“that is, majority-group members taking or being given credit for ideas that women and people of color originally offered.”33

In sum, visible advocacy also requires doing the hardest work— having those difficult conversations with other men or confronting and derailing racist and sexist narratives in real time. In other words, being or becoming a Winter Soldier by disrupting bias. Reaching that point, and staying “on the job,” requires motivation, persistence, support, and practice.

Motivation is subjective. One of the authors of this article is reminded of the experience of his female colleagues and female clients in health professions, and the daily slights, indignities, and offenses they encounter. The experiences of female professionals or people of color are a daily reminder that the Winter Soldier’s job is always the easier one, and one to be accepted as an opportunity. It is also important to recognize that this is a team sport. There is ample reason that second wave feminism (the 20-year period between 1960 and 1980 to increase equality for women)34 did not grow in isolation but sprang from group discussions and shared effort. Remaining a male ally requires swimming against powerful currents … continually. No one can or should have to do this alone. Allyship means having allies, getting their support, and letting them hold you accountable when things are the most difficult. It is always easier to look away or step away, and support and accountability are essential. The key is to strategize with women, not about them or for them.

Finally, as set forth in the Art of the Difficult Conversation: Reducing Conflict And Stress In Seven Steps, there are some key take-aways.35 First, listen to the Frightened Resister, even (and especially) when he is angry. Ask questions about what he believes and what he fears. Search for a way to acknowledge those feelings without agreeing with them. Second, frame the issues using shared values. A Frightened Resister may identify with past religious or regional persecution, which could be a way to establish a toehold of agreement. Third, try to avoid labels. The Frightened Resister is already frightened, and calling behavior sexist or racist will just trigger them. Focus on a firm’s policies or past practices, and give examples of the human cost of those practices in a way that individualizes the harm done.

Conclusion

It has been said that “[a] good man will want you to shine. He wants you to be your amazing self.” Many men are good men, and they want women to shine to better the outcome of the task at hand. For some men, it’s easier and natural to use their voice, regardless of whether

they are in a small group. Others simply cannot be changed, but they can be silenced—at least temporarily. As this article suggests, it unfortunately takes a male to combat another male’s actions. 

Rachel V. Rose effectively advocates and advises clients on compliance, transactions, government administrative actions, and litigation involving healthcare, cybersecurity, and corporate and securities law as well as False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rose is the chair of the FBA’s Government Relations Committee and an executive board member of the FBA’s Qui Tam Section. See www.rvrose. com. Mark Kleiman is managing partner of Kleiman Rajaram in Santa Monica, Calif. The firm focuses on representing whistleblowers in False Claims Act cases. He and his partner have a robust pro bono practice representing immigrants and victims of domestic violence and institutional sexism or racism in healthcare, as well as trying to free elephants from the Los Angeles Zoo. See http://kleimanrajaram.com. ©2022 Rachel V. Rose and Mark Kleiman. All rights reserved.

Endnotes

1Rachel V. Rose, The Subtle and Not-So-Subtle Impact of Bias on Women and Minorities, Fed. Law., Sept./Oct. 2021, at 66, (indicating that the term “‘-splaining’ is parsed into three factors: (1) is the explanation wanted or occurring in a situation such as an educational setting; (2) are assumptions about competence or intelligence being made; and (3) is bias affecting the interpretation.”). 2Stephanie A. Scharf and Roberta D. Liebenberg, First Chairs at Trial: More Women Need Seats at the Table, ABA Comm’n on Women in the Profession (2015), https://www.americanbar.org/ content/dam/aba/administrative/women/first_chairs_final.pdf. 3Id. at 11 (stating that the size of law firms affects women appearing as lead counsel: AmLaw 100 firms (25 percent), AmLaw 200 firms (16 percent), small private firms (20 percent), and solo practice (25 percent)). 4Id. 5Id. 6L. Bazelon, What It Takes to Be a Trial Lawyer If You’re Not a Man, The Atlantic (Sept. 2018), https://www.theatlantic. com/magazine/archive/2018/09/female-lawyers-sexismcourtroom/565778/ (detailing a scenario where a female trial attorney repeatedly received motions from male trial lawyers seeking to “preclude emotional displays” despite their having no basis for the motion’s content.). 7Id. 8Deborah L. Rhode, The Unfinished Agenda – Women and the Legal Profession, ABA Comm’n on women in the Legal Profession 6, (2001), http://womenlaw.law.stanford.edu/pdf/aba.unfinished. agenda.pdf. 9Jordan Rothman, Lawyers Should Stop Gaslighting Each Other, Above the Law (May 12, 2021), https://abovethelaw. com/2021/05/lawyers-should-stop-gaslighting-each-other/. 10Martinez-Gonzalez v. Elkhorn Packing Co., LLC, 25 F.4th 613, 635 (9th Cir. 2022), (Rawlinson, J. dissenting). See also Jackson Women’s Health Org. v. Currier, 349 F.Supp. 3d 536, 540-541, n.22 (S.D. Miss. 2018), aff’d, 945 F.3d 265 (5th Cir. 2019). (“[T]his Court concludes that the Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting.”) 11“[A] woman’s ideas, suggestions, or observations may be ignored until a man explains (or more frequently, simply repeats) her thoughts …. Mansplaining occurs at ‘the intersection between overconfidence and cluelessness.’” Meera E. Deo, The Ugly Truth About Legal Academia, 80 Brook. L. Rev. 943, 976-977 (2015). 12Rebecca Solnit, Men Explain Things to Me 94 (2014). 13One observation about men that fall into the third category is that some of them may marry intelligent and accomplished women because it provides them with a certain cover or outward perception of being “pro women” when their actions towards other women, whether in court, negotiations, or a work environment, are misogynistic. 14Lasana Harris, Lasana Harris interview: How your brain is conditioned for prejudice, New Scientist (Aug. 26, 2020), https:// www.newscientist.com/article/mg24732973-500-lasana-harrisinterview-how-your-brain-is-conditioned-for-prejudice/. 15Id. 16See Listen Up, Ladies, N+1, https://www.nplusonemag.com/ issue-15/the-intellectual-situation/listen-up-ladies/ (last visited May 23, 2022). 17Id. 18Judith Herman, M.D., Trauma and Recovery: The Aftermath of Violence—From Domestic to Political Terror (1R ed. 2015). 19Todd Gitlin, The Liar’s Tale, Los Angeles Times (Mar. 17, 2002), https://www.latimes.com/archives/la-xpm-2002-mar-17-bkgitlin17-story.html. 20Id. 21Deacon Michael Quinlan, The Devil’s Greatest Trick, Crisis Magazine (Dec. 28, 2015), https://www.crisismagazine.com/2015/ the-devils-greatest-trick. 22Patrick M. Kline, et al., Systemic Discrimination Among Large U.S. Employers, National Bureau of Economic Research (Feb. 2022), https://www.nber.org/papers/w29053. 23Eric Luis Uhlmann and Geoffrey L. Cohen, Constructed Criteria: Redefining Merit to Justify Discrimination 474-80, Psychological Science (2005), https://pubmed.ncbi.nlm.nih.gov/15943674/. 24Id.; see also Emil Pronin, et al., The Bias Blind Spot: Perceptions of Bias in Self versus Others 369-381, Personality and Social Psychology Bulletin (2002), https://journals.sagepub.com/doi/ abs/10.1177/0146167202286008. 25Alexandra Kalev, et al., Best Practices or Best Guesses? Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies 589617, American Sociological Review (2006), https://journals. sagepub.com/doi/10.1177/000312240607100404. 26Francesca Gino and Katherine Coffman, Unconscious Bias Training That Works, Harvard Business Review (Sept.-Oct. 2021), https:// www.hbs.edu/faculty/Pages/item.aspx?num=61119. 27Frank Dobbin and Alexandra Kalev, Why Diversity Programs Fail 52-60, Harvard Business Review (2016). 28Meg A. Warren and Samit D. Bordoloi, Going Beyond Good Colleagues, Journal of Diversity in Higher Education (Dec. 2021), https://www.researchgate.net/publication/356937574_ Going_beyond_good_colleagues_Men’s_and_women’s_ perspectives_on_allyship_behaviors_toward_women_faculty_in_

male-dominated_disciplines_in_academia. 29Joan Williams and Sky Mihaylo, How the Best Bosses Interrupt Bias on Their Teams, Harvard Business Review (Nov./Dec. 2019), https://hbr.org/2019/11/how-the-best-bosses-interrupt-bias-ontheir-teams?utm_medium=social&utm_campaign=hbr&utm_ source=LinkedIn&tpcc=orgsocial_edit. 30Id. 31Id. 32Id. 33Id. 34Feminism: The Second Wave, Nat’l Women’s History Museum (June 18, 2020), https://www.womenshistory.org/exhibits/ feminism-second-wave. 35David Galowich, The Art of Difficult Conversations: Reducing Conflict And Stress In Seven Steps, Forbes (Apr. 6, 2018), https:// www.forbes.com/sites/forbescoachescouncil/2018/04/06/the-artof-difficult-conversations-reducing-conflict-and-stress-in-sevensteps/?sh=1e23ac0f5d81.

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