Digital Commons Network^™

Empowerment, Innovation, And Service: Law School Programs Provide Access To Justice And Instill A Commitment To Serve, Dale Margolin Cecka

Law Faculty Publications

Law schools around the country seek to fill the legal needs of their communities in ways that are both innovative and mutually beneficial to clients and students. This article describes five pro bono and clinical programs, at the University of Richmond School of Law. The Earle Mack School of Law at Drexel University. Catholic University Columbus School of Law, the Thomas Jefferson School of Law, and Vermont Law School, where law students, under the supervision of law professors or community professionals, provide assistance or legal representation to underserved and often marginalized populations needing help with family law problems, including parents …

Viacom V. Youtube: A Different View On The District Court Ruling, James Gibson

Law Faculty Publications

In an earlier essay in this series, Randy Picker discussed the recent copyright decision in Viacom v. YouTube, and in particular the court’s ruling that the Digital Millennium Copyright Act’s “safe harbor” for remote storage applies to YouTube’s online video service. I agree with Randy that the court’s interpretation of the DMCA is problematic, but I see a good argument that the outcome is correct and that the ruling should be affirmed on appeal.

Viacom v. YouTube is a hugely important case. It pits the world’s fourth-biggest media company against Internet behemoth Google, which purchased YouTube in 2006 for $1.65 …

Partial Unconstitutionality, Kevin C. Walsh

Law Faculty Publications

Courts often hold legislation unconstitutional, but nearly always only part of the statute offends. The problem of partial unconstitutionality is therefore pervasive and persistent. Yet the exclusive doctrinal tool for dealing with this problem--severability doctrine-is deeply flawed. To make matters worse, severability doctrine is purportedly necessary for any workable system of judicial review. The accepted view is that severance saves: A court faced with a partially unconstitutional law must sever and excise the unconstitutional provisions or applications so that the constitutional remainder can be enforced going forward. Absent severance and excision, a law must fall in its entirety. This excision-based …

Top 10 Law School Home Pages Of 2009, Roger V. Skalbeck

Law Faculty Publications

This brief ranking report attempts to identify the best law school home pages based entirely on objective criteria. The goal was to include elements that make websites easier to use for sighted as well as visually impaired users. Most elements require no special design skills, sophisticated technology or significant expenses

Obesity, Poverty, And The Built Environment: Challenges And Opportunity, Wendy Collins Perdue

Law Faculty Publications

Obesity and its associated chronic diseases have become a major health concern in the United States.... Approximately two thirds of adults in the United States are either overweight or obese, and the condition is linked to diabetes, high blood pressure and other chronic conditions requiring ongoing medical supervision. Obesity is a particular health concern for the poor. Not only are obesity rates generally higher among those with lower socioeconomic status, but the chronic conditions caused by obesity may present a particular challenge for the poor who often lack access to necessary ongoing medical supervision.

The Origins Of The Privileges Or Immunities Clause, Part I: “Privileges And Immunities” As An Antebellum Term Of Art, Kurt T. Lash

Law Faculty Publications

Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive statement of the meaning of Article IV. According to this view, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.

A close analysis of antebellum law, however, suggests that Justice Miller’s …

Copyright As Censorship - Part Ii, James Gibson

Law Faculty Publications

2010 marks the 300th anniversary of the Statute of Anne, the English legislation that ushered in the modern era of copyright law. The Statute of Anne is celebrated for a number of reasons, and perhaps foremost among them is its rejection of copyright as an instrument of censorship. In a previous essay in this series, I discussed one way in which copyright law historically acted as an instrument of censorship: its refusal to grant protection to works that courts judged immoral. In this essay, I discuss copyright’s role in facilitating a different kind of censorship: lawsuits in which a copyright …

Reproduction, Distribution, And "Making Available", James Gibson

Law Faculty Publications

When an individual makes a music or movie file available for downloading by others, without the permission of the copyright owner, is that an infringing act? Or does infringement take place only when the file is actually downloaded?

This thorny copyright issue is at the heart of much of the controversy over file-sharing. It’s relatively simple for a copyright owner to prove that a file has been made available for download, but it’s much harder to prove that a download has actually occurred. So if liability attaches to the mere act of “making available,” record labels and movie studios will …

Why Should International Law Be Concerned About State Failure?, Chiara Giorgetti

Law Faculty Publications

In the last fifty years, the international community has undergone a transformation, as social, economic, and political dynamics have been altered. In fact, the international power structure has shifted towards a more complex structure, economies have been largely liberalized, new powerful international actors have emerged, and security threats have altered significantly. These transformations impacted all nation States. Indeed, a new standard of governance emerged that resulted in increased responsibility to each State's nationals. Similarly, States have become increasingly interindependent and have additional (both in numbers and substance) obligations towards each other and the international community in general. Certain States, however, …

The Price Of Pleasure, Shari Motro

Law Faculty Publications

This Article argues that unless sexual partners explicitly agree otherwise, pregnancy should create a unique type of legal relationship. This relational default would come with certain obligations: in limited circumstances, a woman would be expected to communicate the fact of a pregnancy to the man with whom she conceived, and a man would be required to help support her during pregnancy and recovery. Child support obligations should kick in only once a child is born; until and unless this happens, a man's economic responsibility should be conceptualized as a responsibility towards the woman herself.

The goal of this Article is …

Wills, Trusts And Estates (Annual Survey Of Virginia Law, 2009-2010), J. Rodney Johnson

Law Faculty Publications

The 2010 Session of the General Assembly enacted wills, trusts, and estates legislation (i) adopting the Uniform Power of Attorney Act, (ii) passing emergency legislation for the construction of tax-oriented wills and trusts of persons who die during 2010 with documents drafted prior thereto, (iii) revising the small-estate statutes, and (iv) clarifying the burial power of attorney. In addition, there were six other enactments, and seven opinions from the Supreme Court of Virginia during the one-year period ending June 1, 2010 that present issues of interest in this area. This article reports on all of these legislative and judicial developments, …

Forward, Daniel T. Murphy

Law Faculty Publications

Introduction to Symposium issue, "A Collision of Authority: The U.S. Constitution and Universal Jurisdiction."

The Wild West Of Supreme Court Employment Discrimination Jurisprudence, Henry L. Chambers, Jr.

Law Faculty Publications

This Essay considers three cases decided in the Supreme Court's 2008-2009 term and notes some of the major issues that are left open for discussion after these cases; its purpose is not to catalog every issue that these cases raise. Taken together, these cases challenge employment discrimination doctrine in a fundamental way. This provides the Fourth Circuit in particular the opportunity to continue doing what it has often done-think creatively about employment discrimination doctrine. This is an observation, not a criticism of the Fourth Circuit. It suggests that the Fourth Circuit can make a difference. Of course, the Fourth Circuit's …

Who's Afraid Of The Berne Convention?, James Gibson

Law Faculty Publications

A few months ago, I wrote an essay for this series that argued for reinstatement of formalities as a prerequisite to copyright protection. I left unaddressed one of the main objections to such a system: the fact that international law is unfriendly to formalities. I address that objection here.

The most pertinent international law is the Berne Convention, a multilateral treaty that dates to the 1800s. Since 1908, Article 5(2) of the treaty has prevented any signatory nation from requiring formalities such as registration and notice as a condition of copyright protection. It was the United States’ accession to the …

Diversity And The Federal Bench, Carl W. Tobias

Law Faculty Publications

Justice Sonia Sotomayor's appointment was historic. She is the first Latina Supreme Court member and President Barack Obama's initial appointment. Her confirmation is the quintessential example of his commitment to increasing ethnic and gender diversity in the judiciary; it epitomizes how the administration has nominated and appointed people of color and women to the appellate and district courts. Enhancing diversity honors valuable goals. Selection across a presidency's initial fifteen months also creates the tone. These ideas suggest that the nascent administration's judicial selection merits evaluation, which this paper conducts. Part I briefly assesses modern chief executives' divergent records in naming …

Much Ado About Nothing Much: Protestant Episcopal Church In The Diocese Of Virginia V. Truro Church, Henry L. Chambers, Jr.

Law Faculty Publications

Protestant Episcopal Church in the Diocese of Virginia u. Truro Church ("Truro") involves a property dispute. The core issue is who owns or controls property held in trust for an Episcopal congregation after a majority of that congregation votes to disaffiliate from the Episcopal Church of the United States of America ("TEC") and affiliate with a different church. Deciding a church property dispute is inherently difficult because courts are generally "not a constitutionally permissible forum" to resolve ecclesiastical issues. Indeed, the desire to avoid such issues can lead courts to decline to decide particular cases. However, faced with the property …

Formalities And Tiered Copyright Protection, James Gibson

Law Faculty Publications

In my last IP Issues entry, I discussed the advantages of reinstating formalities as prerequisites to copyright protection. In this entry, I will suggest one way in which this reinstatement might take place.

For most of modern copyright law’s existence, a work of expression received copyright protection only if the author complied with several formalities, such as registering the work with a government agency and placing a copyright notice on each copy of the work (the ubiquitous C-in-a-circle).

These formalities served two functions. The first is what I call the “threshold” function: They gave the author a chance to demonstrate …

Improving Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

Review of Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times (2006).