Law Commons^™

Hipaa Compliance Resources, Paul M. Birch

Law Faculty Publications

As health care consumers, attorneys may need no introduction to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). It may have introduced itself to you already in the form of a refused request for your spouse’s pharmacy receipts without signed authorization, or lengthier patient information forms to fill out before seeing a new doctor. On the other hand, the legislation may have facilitated your own access to your personal health records that otherwise would have been denied, or shielded those records from public disclosure by deterring a mass data spill. Along with establishing portability requirements for employee health …

Overlitigating Corporate Fraud: An Empirical Examination, Jessica M. Erickson

Law Faculty Publications

Corporate law leaves no stone unturned when it comes to litigating corporate fraud. The legal system has developed a remarkable array of litigation options shareholder derivative suits, securities class actions, SEC enforcement actions, even criminal prosecutions all aimed at preventing the next corporate scandal. Scholars have long assumed that these different lawsuits offer different avenues for deterring the masterminds of corporate fraud yet this assumption has gone untested in the legal literature. This Article aims to fill that gap through the first empirical examination of the broader world of corporate fraud litigation. Analyzing over 700 lawsuits, the study reveals that …

A Brave New World Of Stop And Frisk, Ronald J. Bacigal

Law Faculty Publications

In this article, the author Ron Bacigal discusses the editorials, The Shame of New York by Bob Herbert and Fighting Crime Where the Criminals Are by Heather MacDonald. These editorials were prompted by the New York City Police Department's release of figures regarding "stop and frisk" incidents within New York City.' MacDonald and Herbert reacted to the same statistical report by putting two very different spins on the raw data. While it's always helpful to compile empirical evidence, Bacigal suggests that we also need to look beyond the mere numbers. If you put aside anecdotal versions of encounters between minorities …

Education & Practice (Newsletter Of The Section On Education Of Lawyer, Virginia State Bar) - V. 19, No. 3 (Spring 2011), Dale Margolin Cecka

Law Faculty Publications

Contents

What Every Lawyer Should Know About the Economic Realities of a Legal Education, by Heather Jarvis, a student loan lawyer and founder of askheatherjarvis.com

Chair’s Column, by Professor A. Benjamin Spencer of Washington and Lee School of Law

Beyond Langdell, by Professor A. Benjamin Spencer

Law Faculty News

News and Events Around the Commonwealth

Section’s Website Update

2011-2012 Board of Governors

A Future Of Equality For Virginia's Tribes: Reform The Federal Recognition Process To Repair Injustice, Katherine A. Womack

Law Student Publications

This article first examines the historical background of the Virginian-American Indian identity after European contact in Part I. This section looks at the early interactions between American Indians and colonial settlers, the treaties that defined American Indian identity, and the first government-to-government relationships between the tribes and colonial powers. It also follows the changing social attitudes toward American Indians. Part II discusses how social attitudes in the early twentieth century about American Indians led to long-reaching legal effects for Virginian-American Indians. Part III details the federal recognition process, and discusses how and why it denies Virginia’s tribes an equal place …

Health Care: Why Jurisdiction Matters, Kevin C. Walsh

Law Faculty Publications

Congress’s enactment of comprehensive healthcare reform legislation last year was the culmination of one round of an intense debate that continues today. The second round began the same day that the first round ended, when President Obama signed the legislation. In this second round, the locus of debate has shifted from Congress to the courts, which are processing a slew of lawsuits filed immediately after enactment.

One of the most prominent is Virginia v. Sebelius. The lawsuit presents on its face a prominent and critically important question of federalism: Did Congress exceed the limits of its enumerated legislative powers by …

Legislative Control Of The Menhaden Fishery, Matthew G. Curtis

Law Student Publications

This article aims to highlight the unique stance taken by Virginia’s legislature and explain why this management is better left to the commission responsible for managing every other fishery in the Commonwealth. While there may not be a conclusive link between reduction industry practices and a decline in water quality, Virginia’s legislators should recognize the shift towards an ecosystem-based model as the most effective way to sustainably manage fisheries and all natural resources.

How House Bill 2063 And The Expansion Of Access To Protective Orders Could Have Saved Yeardley Love's Life, Amy Weiss

Law Student Publications

This paper will examine Virginia protective order law before the enactment of House Bill 2063, how Yeardley Love’s death was a catalyst for reform of the law, how the law will change under House Bill 2063, and possible future developments in legislative reform that could further help victims of intimate partner violence.

With Great Technology Comes Great Responsibility: Virginia's Legislative Approach To Combating Cyberbullying, Kelsey Farbotko

Law Student Publications

This comment will examine Virginia’s statutory response to the growing problem of cyberbullying, focusing particularly on the bills introduced in the most recent Virginia General Assembly session. Section II will define cyberbullying and other cybercrimes, as well as discuss the effects of this form of harassment and the importance of regulating speech in this manner. Section III will describe current statutes that regulate cyberbullying, as well as the three bills that came before the Virginia General Assembly in its 2011 session. Particularly important is House Bill 2059, which differs from the other two bills not only because it was the …

When Responsive Legislation Ignores The Forest For The Trees, Matthew G. Curtis

Law Student Publications

Large-scale financial disasters have resulted in equally large-scale overhauls of the system responsible for financial industry regulation. Choice over responding parties to these disasters is minimal, and the public inevitably looks to the government for assistance and explanation. The increasingly globalized economy causes any nationwide financial regulation in the U.S. to be felt throughout international markets. U.S. environmental regulation, while not felt immediately abroad, can have drastic impacts on business planning, environmental risk-management, and human rights in the developing world.

Response To Reasonable Expectations In Sociocultural Context, David G. Epstein

Law Faculty Publications

The Article starts 6 (and ends)7 with the premise that contract law should enforce the reasonable expectations of the parties. This is a hard premise to challenge.8 And an even harder premise to apply.9 The Article recognizes the two problems with applying this premise: (1) how does a court decide what expectations are “reasonable,”10 and (2) what does a court do when the contracting parties have different reasonable expectations.11 The Article then uses two cases to illustrate how “sociocultural dissonance between a judge and contracting party”12 exacerbates these problems.

History Repeats Itself: The Post-Furman Return To Arbitrariness In Capital Punishment, Lindsey S. Vann

Law Student Publications

Part I of this comment provides a brief review of Furman and the circumstances leading to the decision. Part II discusses the factors indicating current arbitrariness and other recurring fac-tors surrounding the American death penalty. Part III examines the development of the Cruel and Unusual Punishments Clause since Furman. Finally, Part IV discusses how the Supreme Court should apply its contemporary Eighth Amendment doctrine to the current circumstances surrounding the imposition of the death penalty.

The Silver Lining In The Red Giant: China’S Residential Mortgage Laws Promote Temperance Among The Surging Middle Class, Clayton D. Laforge

Law Student Publications

This comment examines the rise of China‘s middle class and proactive governance to protect its economy from a housing bubble during the global downturn. An analysis of recently enacted Chinese labor and corporate laws demonstrates how the government facilitated the rise of the middle class. The comment dis-cusses the ramifications of strict domestic residential mortgage regulations and how China‘s tempered investment structure secured its domestic housing market. Part II of this comment examines China‘s investment and consumption patterns compared to domestic growth. Part III discusses how the surging middle class grew to seek investment opportunities in the real estate market …

A Critical Look At The Anti-Counterfeiting Trade Agreement, David M. Quinn

Law Student Publications

This Article examines two of the more credible criticisms leveled against the ACTA and evaluates the credibility of each. First, some allege that the agreement is a treaty masquerading as an executive agreement. The distinction is significant because treaties may modify U.S. law and require congressional approval, while executive agreements must accord with existing law and require only presidential approval. The second criticism is the systemic lack of transparency throughout the negotiation process. Though these are not the only criticisms – far from it – they are the two most significant and stand on the most solid ground.

"Till Death (Or Doma) Does Us Part": How Doma Imposes An Unconstitutional Classifying And Coercive Condition On Federal Funding In The Wake Of Massachusetts V. United States Department Of Health And Human Services, Erin Bender

Law Student Publications

Part II of this Note provides a short legislative history of DOMA and an overview of Spending Clause jurisprudence. Part III provides an overview of Judge Tauro‘s opinion in Massachusetts. Finally, Part IV of this Note analyzes Section Three of DOMA under the proposed classifying/coercive condition approach to the Spending Clause and concludes that Section Three of DOMA would be unconstitutional as either type of condition.

Re-Mapping Privacy Law: How The Google Maps Scandal Requires Tort Law Reform, Lindsey A. Strachan

Law Student Publications

This Comment explores how the law should handle such privacy claims. In analyzing both the photographic privacy claims as well as the Wi-Fi data privacy claims, this paper argues that current tort law is inadequate for such technologically advanced legal issues. Section II explores the background of Google Maps Street View and current privacy law, while Section III looks at the holes in current privacy torts in the context of the images displayed on Street View. Section IV examines the privacy implications surrounding the Wi-Fi scandal, and finally, Section V reviews the solution and provides a conclusion.

A Demographic Snapshot Of America's Federal Judiciary: A Prima Facie Case For Change, Jonathan K. Stubbs

Law Faculty Publications

Nearly a decade ago, then judge Sonia Sotomayer gave a speech at the U.C. Berkeley Law School and asked a simple question: “What it all will mean to have more women and people of color on the bench?” This article places Justice Sotomayer’s perceptive question in historical context by providing a demographic profile of the gender and race of federal judges confirmed to the bench from September 24, 1789 through January 13, 2011. The paper focuses principally upon federal courts of general jurisdiction, specifically, the Supreme Court, the various Courts of Appeal and the federal district courts. After presenting historical …

Top 10 Law School Home Pages Of 2010, Roger V. Skalbeck

Law Faculty Publications

This ranking report attempts to identify the best law school home pages based exclusively- on objective criteria. The goal is to assess 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.

Avoiding Legal Seduction: Reinvigorating The Labor Movement To Balance Corporate Power, Ann C. Hodges

Law Faculty Publications

This Article begins by briefly describing how legal and political action has come to be a central strategy for labor unions. Next, it analyzes the ways in which the law has failed the labor movement, reviewing various laws that have been enacted to protect employees, often at the behest of unions, and how those laws have been perversely twisted to the detriment of workers. The Article, then, looks at unions and employee movements that have succeeded in the face of unfavorable laws and analyzes the determinants of those union successes. Finally, based on these strategies, the Article provides suggestions about …

Price Includes Tax: Protecting Consumers From Tax-Exclusive Pricing, Hayes R. Holderness

Law Faculty Publications

This Note contributes to the debate regarding the behavioral effects of the salience of taxes on taxpayers by examining the impact of including the value of sales taxes in the displayed prices of goods. The Note concludes that consumers should make more beneficial decisions regarding consumption when the value of sales taxes is included in or with displayed prices.

The Origins Of The Privileges Or Immunities Clause, Part Ii: John Bingham And The Second Draft Of The Fourteenth Amendment, 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 interpretation 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 sharply distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.

This article, the second in an extended investigation of the origins of the …

Reviewing Joan Delfattore's Knowledge In The Making, Suzanne Corriell

Law Faculty Publications

A book review of Joan DelFattore's Knowledge in the Making.

Notice And Takedown, Here And Abroad, James Gibson

Law Faculty Publications

The Digital Millennium Copyright Act has been around for more than a dozen years now. Some of its provisions were just weird, such as the one that established sui generis protection for boat hull designs. Others have had a skeptical reception in the courts, like the anti-circumvention provisions that forbid certain forms of hacking through technological protections for copyrighted works.

But one DMCA provision that has proved popular in both the copyright community and the courts is the notice-and-takedown procedure codified at 17 U.S.C. § 512(c). When a copyright owner finds that some Internet user has illegally posted its copyrighted …

Polygamy, Publicity, And Locality: The Place Of The Public In Marriage Practice, Allison Anna Tait

Law Faculty Publications

This Article offers a reading of State v. Holm that highlights the Utah court's struggle to define marriage and presents the court's eventual definition of marriage as one that is based on visual indicators.

Principles Of Insurance Law, Peter N. Swisher

Law Faculty Publications

No abstract provided.

Preglimony, Shari Motro

Law Faculty Publications

Unmarried lovers who conceive are strangers in the eyes of the law. If the woman terminates the pregnancy, the man owes her nothing. If she takes the pregnancy to term, the man's obligation to support her is limited. The law reflects this lovers-as-strangers presumption by making a man's obligation towards a woman with whom he conceives derivative of his paternity-related obligations; his duty is towards his child, not towards the woman in her own right. Thus, a pregnant woman's lost wages and other personal costs are her private problem, and if there is no child at the end of the …

Saving Some Green: Free Resources On Environmental Law, Suzanne B. Corriell

Law Faculty Publications

Environmental legal research often requires examining federal, state, and local laws, in addition to understanding science and technology. While there are many print and subscription-based resources available for a fee, websites also can help you navigate the laws and stay current with environmental news, and legal and scientific developments.

Strength Of The International Trade Commission As A Patent Venue, Christopher A. Cotropia

Law Faculty Publications

The data suggests that the ITC is here to stay and almost all patent enforcement actions will take place, at least in part, in the ITC. The landscape of patent enforcement has permanently changed, and the ITC is a solid part of it. This Article reaches these conclusions by first, in Part I, describing the unique features of the ITC that make it a favored venue of patentees. Part II describes the Federal Circuit's decision in Kyocera and the various postulates as to its impact. Part III describes the study, the specific data obtained, and the results. Part IV analyzes …

From Coverture To Contract: Engendering Insurance On Lives, Mary L. Heen

Law Faculty Publications

In the 1840s, state legislatures began modifying the law of marital status to ease the economic distress of widows and children at the family breadwinner's death. Insurance-related exceptions to the common law doctrine of "marital unity" under coverture permitted married women to enter into insurance contracts and protected life insurance proceeds from their husbands' creditors. These early insurance-related statutory exceptions to coverture introduced an important theoretical question that persisted for the rest of the nineteenth century-and into the next-as broader legal and social reforms took hold. How could equality of contract for married women be reconciled with the traditional dependencies …

Cooperative Patent Prosecution: Viewing Patents Through A Pragmatics Len, Kristen Jakobsen Osenga

Law Faculty Publications

This Article constructs a linguistics-based framework to consider patent claim construction and demonstrates that the often-told story that claim construction is broken is, in fact, wrong. Rather, it is the underlying conversations that comprise the patent acquisition process that are to blame. In Part I of this Article, I use linguistics to describe the characteristics of everyday conversation, as well as how it is interpreted. In Part II, I explain what patent conversations look like and how they are similar to and different from everyday conversation. In Part III, I apply the theories of interpreting everyday conversation to patent conversation. …