Law Commons^™

Munchausen Syndrome By Proxy: Broadening The Scope Of Child Abuse, Michael T. Flannery

University of Richmond Law Review

In July 1989, five-month-old Ryan Stallings spent two weeks in a hospital after suffering abdominal pains. Ryan was subsequently placed in a foster home when police suspected that he ingested antifreeze while in the care of his mother, twenty-four-year-old Patricia Stallings. Police became suspicious of Patricia because Ryan could not walk and thus was unlikely to ingest antifreeze accidentally. Patricia was allowed to visit Ryan once every week while he remained in foster care under the supervision of the Missouri Division of Family Services. Shortly after her visit on August 31, 1989, Ryan was readmitted to the hospital with symptoms …

Reconsidering The Tribal-State Compact Process, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

This essay evaluates the tribal‐state compact process, as one of several alternative, nonadversarial processes, warranting attention. It argues that, because of its binding character and relatively low cost (in contrast to litigation), and because it is based in the idea of tribes and states exhibiting mutual respect, the compact process is an advanced version of negotiation and bargaining that tribes and states should consider where appropriate.

The U.S. Supreme Court's Explication Of "Federal Plenary Power": An Analysis Of Case Law Affecting Tribal Sovereignty, 1886-1914, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The concept of tribal sovereignty frequently conflicts with that of congressional plenary power, depending on the definition and basis of plenary power. Analysis of 107 federal court cases between 1886 and 1914 suggests that when plenary power is seen in terms of preemption and exclusivity, it may help to protect tribal sovereignty from private or state incursions. However, if plenary power is defined as absolute and unlimited, tribal rights are not constitutionally protected against federal actions. Although tribes are properly regarded as extra-constitutional entities, they are often treated as inferior in relation to Congress by the courts.

Intra-Tribal Confrontations: What Is To Be Done?, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Racial, ethnic, and religious wars and conflicts have plagued humanity since the primordial past. But since the thawing of the Cold War, there has literally been an explosion of devastating conflicts that seem far more complex than those which erupted in earlier eras. These are also potentially more threatening to international peace because of their breadth, scope, and probable duration.

These and the multitude of other ethnic, racial, and religious conflicts around the world are far more brutal and ruinous than anything most indigenous people have experienced since the federal government's aberrant and fortunately short-lived policy of Termination and Relocation, …

Twentieth-Century Virginia Legal Periodicals: A Bibliography And Commentary, William Hamilton Bryson

Law Faculty Publications

Periodicals have played an important role in the Virginia legal community, serving as a medium for scholarly legal commentary and debate, for keeping practitioners abreast of developments in the law, and for providing information on current events and activities in the legal community. Although the fundamental purposes of the legal periodical have remained somewhat constant, the number and circulation of Virginia legal periodicals have expanded greatly and, as a result, so has their role in the Virginia legal community. A chronological examination of legal periodicals in twentieth-century Virginia reveals that the role of the legal periodical has significantly increased from …

Annual Survey Of Virginia Law: Charitable Immunity: What Price Hath Charity?, Barbara Ann Williams

University of Richmond Law Review

It is well settled in Virginia that charitable organizations are immune from liability arising from tort claims asserted by persons who accept the organizations' charitable benefits. The determination of whether a plaintiff is the beneficiary of charitable bounty is a legal issue for the court to decide. Although most older Virginia cases discuss charitable immunity as it applies to hospitals, the doctrine has been applied to many other types of charitable organizations.

Annual Survey Of Virginia Law: Wills, Trusts, And Estates, J. Rodney Johnson

University of Richmond Law Review

The 1994 Session of the General Assembly enacted legislation dealing with wills, trusts, and estates that added, amended, or repealed a number of sections of the Code of Virginia (the Code). In addition to this legislation, there were six Supreme Court of Virginia opinions, one federal district court opinion, one Virginia Circuit Court opinion, and one Virginia Attorney General's opinion in the year ending June 1, 1994 that involved issues of interest to both the general practitioner and the specialist in wills, trusts, and estates. This article analyzes each of these legislative and judicial developments.

The Earned Income Tax Credit As A Tax Expenditure: An Alternative To Traditional Welfare Reform, Timothy J. Eifler

University of Richmond Law Review

Welfare has become a common topic of concern recently as President Clinton and his political adversaries begin battle over the second major element of Clinton's agenda for reform. As a necessary corollary to, and a direct complement of the health care proposal, the welfare system presents the next area that requires reform for a truly effective agenda for change.

Human Rights And Peace-Keeping Operations, Diego Garcia-Sayan

University of Richmond Law Review

The purposes of the United Nations, as specified in Article 1 of the United Nations Charter, are to "maintain international peace," to promote and encourage "respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion" and to "achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character."

Classifications That Disadvantage Newcomers And The Problem Of Equality, Robert C. Farrell

University of Richmond Law Review

For those concerned with the substantial fiscal problems of government, we have a solution. The solution is - Newcomers. Newcomers are those who will become part of our community in the future but who are not here yet. Like unidentified holders of a contingent remainder, newcomers are not yet around to vote, to peddle influence, or to protect their turf. Since newcomers are not here to complain, now is the time to shift burdens onto their shoulders. Make them pay a larger share of taxes. Assign to them a smaller share of government largesse. Thanks to disarray in American policy …

Tax Treatment Of Contingent Liabilities: The Need For Reform, Ellen H. De Mont

University of Richmond Law Review

The proper tax treatment of the assumption of deductible and nondeductible contingent liabilities' for both the buyer and seller in transactions involving taxable asset acquisitions is currently under debate. Case law precedents and the current state of the law are contradictory or, at best, uncertain. Authority on the buyer's side in particular is undefined and authority on the seller's side is sparse. From a tax policy perspective, it is desirable to avoid rules that yield inconsistent results. A healthy economy depends in part upon businesses being able to make decisions based upon expected tax consequences, and currently, a comfortable level …

Considering Religion As A Factor In Foster Care In The Aftermath Of Employment Division, Department Of Human Resources V. Smith And The Religious Freedom Restoration Act, Thomas J. Cunningham

University of Richmond Law Review

Most rights considered by Americans to be "fundamental" are granted a special level of protection by the decisions of the United States Supreme Court. The standard is often described as "strict scrutiny" or "compelling interest." Under this standard of protection, a state must have more than just a good reason for writing legislation that encroaches upon its citizens' fundamental rights. Rather, the state must be able to prove a "compelling" interest in achieving some desired result, a result which necessitates the curtailment of fundamental rights. In 1990, however, the United States Supreme Court substantially restricted a right from this list: …

Withrow V. Williams And Collateral Review Of Miranda Violations: The Supreme Court Rejects The Rule Of Stone V. Powell Under A Revised View Of Applicable Prudential Concerns, John K. Byrum Jr.

University of Richmond Law Review

More than fifty years before ratification of the Fourth and Fifth Amendments to the Constitution, Lord Camden observed: [I]t is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle. There, too, the innocent would be confounded with the guilty. Over one hundred years later, in Mapp v. Ohio, the Supreme Court affirmed this relationship between Fourth and Fifth Amendment liberties, holding that …

City Of Cincinnati V. Discovery Network, Inc.: Towards Heightened Scrutiny For Truthful Commercial Speech?, Robert T. Cahill Jr.

University of Richmond Law Review

Only recently' has the Supreme Court given First Amendment protection to commercial speech. Initially, the Court refused to extend constitutional protection to commercial utterances. In Valentine v. Chrestensen, the Court, without citing any precedent, held that "we are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising." However, soon after the Chrestensen decision, in the wake of post-war economic development, the Court began to express doubt about its validity. This doubt eventually culminated in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council.

Taking The Sizzle Out Of The Frye Rule: Daubert V. Merrell Dow Pharmaceuticals Opens The Door To Novel Expert Testimony, Kimberly Ann Satterwhite

University of Richmond Law Review

In Frye v. United States, the Court of Appeals of the District of Columbia affirmed a trial court's exclusion of lie detector test results on the ground that such tests had not been "generally accepted" by the scientific community. The Frye rule, or "general acceptance" standard, quickly became the dominant test for the admission of scientific evidence. Decided in 1923, Frye governed evidentiary decisions in a majority of federal circuits for the next seventy years. The adoption of the Federal Rules of Evidence in 1975, however, prompted several judges to question the validity of Frye. Since the enactment of the …

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Brooke Group Ltd. V. Brown & Williamson Tobacco Corp.: A Victory For Consumer Welfare Under The Robinson-Patman Act, Keith Allen May

University of Richmond Law Review

The preservation of competition among business entities is vital to the success of any economy. Recognizing the importance of competition, the United States Congress has passed antitrust laws that seek to enhance productivity and protect consumers. Although the antitrust laws, like all statutes, are vulnerable to a variety of different interpretations, "[t]he language of the antitrust statutes, their legislative histories, the major structural features of the antitrust law, and considerations of the scope, nature, consistency, and ease of administration of the law all indicate that the law should be guided solely by the criterion of consumer welfare." The antitrust laws …

The Evolution Of Quasi-Judicial Activism In The Legislative Branch: Canadian Commercial Corp./Heroux, Inc., John M. Holloway Iii

University of Richmond Law Review

During the First Congress' debate over the bill to establish the Treasury Department, James Madison described the principal responsibility of the Comptroller of the Treasury as "deciding upon the lawfulness and justice of claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the Executive Branch of Government." With the passage of the Budget and Accounting Act of 1921, the General Accounting Office (GAO) was created and the responsibility to settle …

Annual Survey Of Virginia Law: Antitrust And Trade Regulation, Michael F. Urbanski, Francis H. Casola

University of Richmond Law Review

Once again this past year, the Fourth Circuit and the federal courts in Virginia proved inhospitable to antitrust plaintiffs. Plaintiffs consistently lost on summary judgment and only one plaintiff survived a motion to dismiss. The only major development in the law in the Fourth Circuit came from the Western District of Virginia where Judge James C. Turk refused to recognize the theory of monopoly leveraging under Section 2 of the Sherman Act.

Annual Survey Of Virginia Law: Civil Practice And Procedure, Donald P. Boyle Jr.

University of Richmond Law Review

Virginia courts and the General Assembly have effected a number of changes in civil practice and procedure during the past year. This article focuses on some significant developments of interest to the general litigation attorney.

Annual Survey Of Virginia Law: Domestic Relations, Ronald S. Evans, Deanna D. Cook

University of Richmond Law Review

The 1993 Virginia General Assembly enacted two bills to implement the Judicial Council's report to the Governor and General Assembly recommending the creation of a Family Court in Virginia. The Family Court was to be in effect January 1, 1995, provided that the 1994 legislative session passed the necessary funding and appropriation bills. The 1994 Session did not allocate funds; however, rather than allowing the Family Court project to lapse by inaction, the legislature delayed implementation of the court until July 1, 1996.

Money Laundering And Drug Trafficking: A Question Of Understanding The Elements Of The Crime And The Use Of Circumstantial Evidence, Thomas M. Dibiagio

University of Richmond Law Review

Drug trafficking in the United States generates millions of dollars in cash profits daily. The cash generated from narcotics trafficking usually follows one of two distinct paths. Domestically, the profits are converted into usable currency by disguising the association between the cash and the narcotics enterprise. Monies not spent domestically are transferred back to the nar- cotics source or drug cartel to be enjoyed by the drug traffickers and to provide operating capital for the enterprise. This conversion and transfer process has become known commonly as money laundering.

Annual Survey Of Virginia Law: Legal Issues Involving Children, Robert E. Shepherd Jr.

University of Richmond Law Review

The past year has been another significant year for children and the legal system with the completion of the Virginia Commission on Youth's Serious Juvenile Offender study and the enactment of comprehensive legislation intended to implement the recommendations of that study as the General Assembly continues to focus on juvenile delinquency and school behaviors. The Governor and General Assembly failed to agree on a funding scheme for the Family Court, created in 1993, which consequently postponed the date for the Family Court's implementation from January 1, 1995 until July 1, 1996. Also, the past year experienced a series of different …

Annual Survey Of Virginia Law: Property Law, Charles H. Rothenberg, Gina M. Burgin, L. Charles Long Jr.

University of Richmond Law Review

This article reviews some of the more significant cases and legislation affecting Virginia property law over the past year. The Virginia Supreme Court revisited a wide range of issues, including the level of visibility to which an adverse use must rise to establish title by adverse possession. The court also revisited the steps that a mechanic's lienor must take in order to protect his or her lien. Additionally, the court also explored some new issues, such as the applicability of the rule against perpetuities to a purchase option contained in a lease.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

"Speech Acts" And The First Amendment, Lawrence Friedman

University of Richmond Law Review

Of the 1989 student protests in Beijing's Tiananmen Square, one image lingers still: a lone figure standing motionless before a column of tanks, an extreme act of self-expression in defense of the right to express oneself. The makeshift Statue of Liberty erected by the students occupying the Square pointed to the country providing their inspiration. The foundations of that inspiration may in turn be traced to the handful of words---"Congress shall make no law...abridging the freedom of speech, or the press . . . "--which have become synonymous with American-style democracy.'

Defender Or Offender: America's Role In The Protection Of International Human Rights?, Kimberly Satterwhite

University of Richmond Law Review

The recent caning of an eighteen year old American student by officials in Singapore sparked much debate over the appropriateness of corporal punishment in criminal cases. Many Americans question the humaneness of criminal penalties imposed in foreign lands. While quick to identify human rights violations around the world, the United States government has been reluctant to concede that abuses occur within the American-criminaljustice system.

The Civil Rights Act Of 1991, Retroactivity, And Continuing Violations: The Effect Of Landgraf V. Usi Film Products And Rivers V. Roadway, Leonard Charles Presberg

University of Richmond Law Review

The Civil Rights Act of 1991 (the Act) made significant changes to the major employment discrimination statutes. In addition to restoring the law that was in effect prior to a number of Supreme Court decisions which eroded the civil rights statutes, the Act also added remedies that were omitted from previous legislation. One important area that was unclear at the time of the Act's passage was the issue of retroactivity. In light of the Act's unclear legislative history, ambiguous statutory language, and seemingly contradictory Supreme Court precedent, the Act's retroactive nature has been widely litigated and discussed.

America's Offshore Refugee Camps, Harold Hongju Koh

University of Richmond Law Review

America's offshore refugee camps rank among the most startling, yet invisible, features of United States foreign policy in the post-Cold War era. Since 1991, our Government has almost continuously maintained tent cities holding thousands of men, women, and children, surrounded by rolls of razor-barbed wire, amid the sweltering heat of the U.S. Naval Base at Guantanamo Bay, Cuba, and the former Panama Canal Zone. Those incarcerated in the camps have witnessed birth and death, hope and despair, and untold waves of frustration and tedium.

Subsidiarity And/Or Human Rights, Daniel T. Murphy

University of Richmond Law Review

The post-Maastricht world of the European Union is only about two years old. Within that new world, however, few concepts are as important, and yet as elusive or unsettled, as the doctrine of subsidiarity. On the other hand, the European Community has for many years evidenced concern over human rights. The purpose of this essay is to consider the implications of the concept of subsidiarity for human rights law and enforcement within the European Community and the European Union.