Digital Commons Network^™

Solving Slapp Slop, Nicole J. Ligon

University of Richmond Law Review

In a substantial minority of states, wealthy and powerful individuals can, without much consequence, bring defamation lawsuits against the press and concerned citizens to silence and intimidate them. These lawsuits, known as “strategic lawsuits against public participation” (“SLAPP”s), are brought not to compensate a wrongfully injured person, but rather to discourage the defendants from exercising their First Amendment rights. In other words, when well resourced individuals feel disrespected by public criticism, they sometimes sue the media or concerned citizens, forcing these speakers to defend themselves in exorbitantly expensive defamation actions. In states without anti-SLAPP statutes—statutes aimed at protecting speakers from …

Douglass, Lincoln, And Douglas Before Dred Scott: A Few Thoughts On Freedom, Equality, And Affirmative Action, Henry L. Chambers Jr.

Law Faculty Publications

In 1854, Senator Stephen Douglas, Abraham Lincoln, and Frederick Douglass delivered speeches about the newly passed Kansas-Nebraska Act. That law opened the Kansas and Nebraska Territories to slavery by extending popular sovereignty, the practice of letting territorial majorities decide whether to allow slavery in a territory, to them. Given before Dred Scott v. Sandford, the infamous case in which the Supreme Court ruled that Black Americans—whether freeborn, freed, or enslaved—could not be citizens of the United States absent congressional action or constitutional amendment, the speeches are worth revisiting. They focus on whether or how slavery should be limited, reflecting …

What Is The Standard For Obtaining A Preliminary Injunction In Virginia?, Stuart A. Raphael

University of Richmond Law Review

A perception exists that the Supreme Court of Virginia has not articulated the legal standard for adjudicating preliminary-injunction motions in Virginia circuit courts. For decades, lawyers and legal scholars have advocated that Virginia trial judges borrow the federal preliminary-injunction standard applied in the United States Court of Appeals for the Fourth Circuit. Virginia trial courts have generally followed that advice. Virginia courts at first applied the Fourth Circuit’s Blackwelder test, which called upon judges to balance the four traditional factors and allowed a stronger balanceof-hardship showing to offset a weaker showing of likely success on the merits. After the 2008 …

Replacing Tinker, Noah C. Chauvin

University of Richmond Law Review

In this Article, I wish to question whether reaffirming the animating spirit of Tinker is the best way to protect student speech rights. In allowing schools to punish student speech that school officials reasonably believe could be substantially disruptive, Tinker founds students’ free expression rights on unstable ground. This is true for two reasons. First, the Tinker standard allows school officials to regulate student speech based on their own perceptions of what its impacts will be. While these perceptions must be reasonable, courts have shown extraordinary deference to educators’ claims that student speech could be substantially disruptive. Second, the substantial …

Redefining The Badges Of Slavery, Nicholas Serafin

University of Richmond Law Review

Section 2 of the Thirteenth Amendment grants Congress the authority to eliminate the “badges and incidents” of slavery. What constitutes an incident of slavery is clear: the incidents of slavery are the legal restrictions, such as submission to a master and a ban on the ownership of productive property, that were inherent in the institution of slavery itself. What constitutes a badge of slavery is far less certain, and relatively few legal scholars have examined the historical meaning of the metaphor. Nevertheless, there has emerged a renewed interest in Section 2, such that the literature now abounds with proposals for …

A Virtual Reality: Preserving The Right To Appear "In Person" Before An Administrative Separation Board, Jeffrey Janaro, Christopher Clifton

Richmond Public Interest Law Review

Prior to the COVID-19 pandemic, courts and government agencies utilized

video teleconference (“VTC”) technology to conduct trials and hearings in

limited settings. However, as the pandemic progressed, a number of these

adjudicative bodies began to rely more heavily on VTC, and at least one military

service sanctioned the use of VTC to conduct administrative separation

proceedings. The administrative separation process is routinely used as an

employment action to separate military members from an armed service. Due

to its speed and efficiency, military commanders often elect to use the administrative

separation process over the more rigorous court-martial procedure

to effect good …

The Emergence Of Neutrality, Jud Campbell

Law Faculty Publications

This Article traces two interwoven jurisprudential genealogies. The first of these focuses on the emergence of neutrality in speech and press doctrine. Content and viewpoint neutrality are now the bedrock principles of modern First Amendment law. Yet the history of these concepts is largely untold and otherwise misunderstood. Scholars usually assume that expressive-freedom doctrine was mostly undeveloped before the early twentieth century and that neutrality was central to its modern rebirth. But this view distorts and sometimes even inverts historical perspectives. For most of American history, the governing paradigm of expressive freedom was one of limited toleration, focused on protecting …

Renewable Energy Federalism, Danielle Stokes

Law Faculty Publications

No one seriously questions that an improved and decarbonized energy supply system is a key component of climate change mitigation, but the United States’ system of federalism complicates the siting of utility-scale renewable energy facilities. The new Biden Administration presents the United States with an opportunity to reimagine how this country regulates renewable energy siting, allowing for substantial national progress in reducing greenhouse gas emissions. Currently, primary siting authority for renewable energy projects rests with state and local governments, which generally exercise that authority through zoning and land use planning, while the federal government approves most interstate energy delivery systems. …

Frenemy Federalism, Scott Bloomberg

University of Richmond Law Review

Federalism scholars have long been fascinated by the unique relationship between the federal government and states that have legalized marijuana. And with good reason. For the past fifty years, Congress has classified marijuana as a Schedule I drug under the federal Controlled Substances Act (“CSA”), deeming the drug to have a high potential for abuse and no accepted medical use. Congress’s aim in establishing Schedule I of the CSA was to “eliminate the market in Schedule I substances.” Thus, possessing, distributing, and manufacturing marijuana are federally illegal. Congress’s objective notwithstanding, over two-thirds of the states (and territories) have legalized marijuana …

Out Of Sight And Out Of Mind: Criminal Laws Disguised Moral Culpability Requirement, Andrew Ingram

University of Richmond Law Review

Last spring, the Supreme Court of the United States made a little-remarked constitutional ruling in Kahler v. Kansas. Upon casual inspection, Kahler looks like a doctrinal dead-end. The petitioner asked the Supreme Court to recognize a due process right for mentally ill defendants to raise the M’Naghten right-and-wrong test of insanity, and the Court said, “No.” The petitioner’s failure notwithstanding, Kahler is not a barren vine. On the contrary, it is heavy-laden with new doctrinal insights for criminal law scholars.

The case deserves a thorough look—not for what it can teach us about constitutional contentions that the Court has …

Rules And Standards In Justice Scalia's Fourth Amendment, Robert M. Bloom, Eliza S. Walker

University of Richmond Law Review

When looking at Justice Scalia’s approach to the Fourth Amendment, most would say he was an originalist and a textualist. Justice Scalia himself would like to explain, “I’m an originalist and a textualist, not a nut.” Although originalism and textualism were often prevalent in his Fourth Amendment decisions, even more important to his decision-making was his disdain for judicial activism. To limit judicial discretion, Justice Scalia frequently opted to impose bright-line rules rather than vague standards. This is apparent not only within his jurisprudence as a whole, but also specifically in his Fourth Amendment decisions.

This Article examines Justice Scalia’s …

Religious Exemptions As Rational Social Policy, Justin W. Aimonetti, M. Christian Talley

University of Richmond Law Review

In its 1963 decision Sherbert v. Verner, the Supreme Court interpreted the Free Exercise Clause to permit religious exemptions from general laws that incidentally burdened religious practice. Sherbert, in theory, provided stringent protections for religious freedom. But those protections came at a price. Religious adherents could secure exemptions even if they had no evidence the laws they challenged unfairly targeted their religious conduct. And they could thereby undermine the policy objectives those laws sought to achieve. Because of such policy concerns, the Court progressively restricted the availability of religious exemptions. In its 1990 decision Employment Division v. Smith …

Proving The Constitution: Burdens Of Proof And The Confrontation Clause, Enrique Schaerer

University of Richmond Law Review

In law, we never prove anything to 100% certainty. For factual propositions, the proponent has the burden of proving them to the satisfaction of a standard: a preponderance of the evidence at the low end; clear and convincing evidence in the middle; proof beyond a reasonable doubt at the high end. The standards are often explicit. Yet, for legal propositions, standards are often implicit or lacking altogether. This Article argues that, to decide legal issues, courts may look to similar burdens of proof that they use to decide factual issues. They should do so informally, using burdens of proof just …

The Bivens "Special Factors" And Qualified Immunity: Duplicative Barriers To The Vindication Of Constitutional Rights, Amelia G. Collins

University of Richmond Law Review

Part I of this note traces the history of the Bivens cause of action and analyzes the original “special factors” that concerned the Supreme Court. Part I also outlines the purpose behind implying a Bivens cause of action for plaintiffs bringing constitutional claims. Part II includes the same analysis of the qualified immunity defense, both to its history and purpose. Part III demonstrates how the Supreme Court has incorporated the concerns addressed by qualified immunity into the “special factors” analysis, rather than acknowledging the mitigating nature of immunity defenses when examining if any “special factors” exist. Finally, Part IV argues …

Pills, Public Nuisance, And Parens Patriae: Questioning The Propriety Of The Posture Of The Opioid Litigation, Michelle L. Richards

University of Richmond Law Review

The opioid crisis has been in litigation for almost twenty years on various fronts, including criminal prosecutions of pharmaceutical executives, civil lawsuits by individuals against drug manufacturers and physicians, class actions by those affected by opioid abuse, and criminal actions filed by the Drug Enforcement Administration (“DEA”). In the early 2000s, opioid litigation began with individual plaintiffs filing suit against manufacturers and others for damages allegedly related to opioid use. The litigation has since expanded significantly in terms of the type of plaintiffs and defendants, the nature of the claims being asserted, and the damages attributable to the crisis.

The …

Constitutional Rights Before Realism, Jud Campbell

Law Faculty Publications

This Essay excavates a forgotten way of thinking about the relationship between state and federal constitutional rights that was prevalent from the Founding through the early twentieth century. Prior to the ascendancy of legal realism, American jurists understood most fundamental rights as a species of general law that applied across jurisdictional lines, regardless of whether these rights were constitutionally enumerated. And like other forms of general law, state and federal courts shared responsibility for interpreting and enforcing these rights. Nor did the Fourteenth Amendment initially disrupt this paradigm in ways that we might expect. Rather than viewing rights secured by …

Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt T. Lash

Law Faculty Publications

"In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …

The Invention Of First Amendment Federalism, Jud Campbell

Law Faculty Publications

When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule.

Mostly ignored in the literature, …

"Cyborg Justice" And The Risk Of Technological-Legal Lock-In, Rebecca Crootof

Law Faculty Publications

Although Artificial Intelligence (AI) is already of use to litigants and legal practitioners, we must be cautious and deliberate in incorporating AI into the common law judicial process. Human beings and machine systems process information and reach conclusions in fundamentally different ways, with AI being particularly ill-suited for the rule application and value balancing required of human judges. Nor will “cyborg justice”—hybrid human/AI judicial systems that attempt to marry the best of human and machine decisionmaking and minimize the drawbacks of both—be a panacea. While such systems would ideally maximize the strengths of human and machine intelligence, they might also …

Navigating 21st Century Tax Jurisdiction, Hayes R. Holderness

Law Faculty Publications

Hailed as a massive victory for the states, the Supreme Court’s 2018 decision in South Dakota v. Wayfair, Inc. brought dated state tax jurisdiction standards into the twenty-first century, freeing the states to tax internet vendors. However, the decision left the larger state tax jurisdiction doctrine undertheorized and at a crossroads: should the doctrine concern itself only with notice and fairness issues akin to those found in the due process personal jurisdiction realm, or should it also concern itself with protecting interstate commerce from undue state tax burdens?

This Article argues for the latter path by developing a robust theory …

The Enumerated-Rights Reading Of The Privileges Or Immunities Clause: A Response To Barnett And Bernick, Kurt T. Lash

Law Faculty Publications

In prior scholarship, I have argued that the historical evidence suggests that the public originally understood the Privileges or Immunities Clause as protecting enumerated constitutional rights, including (though not limited to) those rights listed in the first eight amendments, but not as protecting absolute enumerated rights such as the unenumerated right to contract protected in cases like Lochner v. New York. In a recent article, Randy Barnett and Evan Bernick canvass more than two decades of my historical work on the Fourteenth Amendment and claim that I have failed to present a persuasive argument in favor of what they call …

The Historical Case For Constitutional "Concepts", Glenn E. Chappell

University of Richmond Law Review

The concepts/conceptions dichotomy is prominent in both the philosophy of language and the field of constitutional interpretation. It is most prominently illustrated through the provisions in the Constitution that contain broad, open-ended moral language. Those who hold the “conceptions” view believe that the legal content of those provisions includes both abstract moral concepts and its communicators’ subjective beliefs about, or conceptions of, how those concepts should apply. Under this view, the judge’s role is mostly empirical: he is tasked with examining historical evidence to ascertain those conceptions, which in turn supply applicational criteria by which he can decide specific cases. …

Compelled Subsidies And Original Meaning, Jud Campbell

Law Faculty Publications

The rule against compelled subsidization of speech is at the forefront of modem First Amendment disputes. Challenges to mandatory union dues, laws preventing discrimination on the basis of sexual orientation, and the federal "contraceptive mandate" have all featured variants of the anti-subsidization principle, reasoning that the government cannot compel people to support the objectionable activities of others. But the literature currently fails to evaluate modem compelled-subsidy doctrine in terms of the original meaning of the First Amendment. This Essay takes up that task.

Approaching any question of original meaning requires a willingness to encounter a constitutional world that looks very …

The Workers' Constitution, Luke Norris

Law Faculty Publications

This Article argues that the National Labor Relations Act of 1935, Social Security Act of 1935, and Fair Labor Standards Act of 1938 should be understood as a “workers’ constitution.” The Article tells the history of how a connected wave of social movements responded to the insecurity that wage earners faced after the Industrial Revolution and Great Depression by working with government officials to bring about federal collective bargaining rights, wage and hour legislation, and social security legislation. It argues that the statutes are tied together as a set of “small c” constitutional commitments in both their histories and theory. …

The People's Lawyer: The Role Of Attorney General In The Twenty-First Century, Mark J. Herring

University of Richmond Law Review

For the last five years, it has been my privilege to serve the people as their attorney general. The origin of the position of attorney general can be traced back centuries, but in a world that has become more interconnected, complex, and fast-paced, what does the role of a state attorney general entail in the twenty-first century and beyond? Is the proper role as a diligent but reactive defender of statutes and state agencies, or is there a deeper responsibility that calls for a more proactive and engaged use of its tools and authority? I have found that the job …

Enforcing Statutory Maximums: How Federal Supervised Release Violates The Sixth Amendment Rights Defined In Apprendi V. New Jersey, Danny Zemel

University of Richmond Law Review

The Sixth Amendment commands that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Trial by a jury of one’s peers is a fundamental American legal right, existing in the earliest colonies before being codified in both Article III of the Constitution and the Sixth Amendment. The jury trial right derives from “the mass of the people,” ensuring that “no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the …

Race, Speech, And Sports, Matthew J. Parlow

University of Richmond Law Review

Race, sports, and free speech rights intersected in a very controversial and public way during the 2016 and 2017 National Football League (“NFL”) seasons. On August 26, 2016, Colin Kaepernick spurred a national debate when he refused to stand during the playing of the national anthem before the NFL preseason game between the Green Bay Packers and the San Francisco 49ers, Kaepernick’s team at the time.

Non-Contact Excessive Force By Police: Is That Really A Thing?, Michael J. Jacobsma

University of Richmond Law Review

When people hear the words “police” and “excessive force,” they usually associate those words with an unjustified assault and battery, or lethal force made against suspects by law enforcement officers during an arrest or investigation. When such acts occur, the victim of the excessive force has the right to pursue a civil action against the police officer pursuant to 42 U.S.C. § 1983 if committed by state or local police, or a Bivens action if committed by federal agents. But can a police officer be sued for excessive force without making any physical contact with the plaintiff? The answer to …

Characterizing Power For Separation-Of-Powers Purposes, Tuan N. Samahon

University of Richmond Law Review

The U.S. Constitution parcels "legislative," "executive," and "judicial" powers among the separate branches of the federal government, but leaves those powers undefined. Accordingly, characterizing exercises of power becomes an important threshold inquiry in separation-of-powers disputes. This symposium Essay canvasses four competing judicial approaches to the characterization of power: functional inquiry; identity-of-the-officer formalism; historical induction; and skepticism. In this area, Justice Scalia's formalism has been particularly influential but created considerable tension with original public meaning originalism. This Essay explains how Scalia's formalism led to his embrace of delegation and concludes by cautioning against judicial oversimplification in the characterization inquiry.

Acknowledgments, Andrew E. Hemby

University of Richmond Law Review

No abstract provided.