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

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 …

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.

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.

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.

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 …

Universal Citation And The American Association Of Law Libraries: A White Paper, Timothy L. Coggins

Law Faculty Publications

This white paper is a collaborative endeavor of many individuals, including members of the American Association of Law Libraries and its Digital Access to Legal Information Committee (DALIC), formerly the Electronic Legal Information Access & Citation (ELIAC) Committee. First, Justice Yvonne Kauger introduces the topic by identifying the groundbreaking steps taken by the Oklahoma Supreme Court. Law librarians Carol Billings and Kathy Carlson next provide a detailed and comprehensive history of citation reform and the American Association of Law Libraries' leadership and involvement in the issue. They also summarize the citation reform steps taken in selected jurisdictions. Finally, John Cannan, …

Reviewing Holy Writ: Interpretation In Law And Religion, Henry L. Chambers, Jr.

Law Faculty Publications

Holy Writ: Interpretation in Law and Religion is precisely what its title suggests. The book consists of “assembled essays on interpretation in the field of law and religion” written by Justice Antonin Scalia and professors of law and philosophy from the University of Leiden and the University of Utrecht. The genesis of the book was “a conference in the honour of Justice Antonin Scalia, who visited the Leiden law department to celebrate the opening of the new faculty building.” (Preface, ix) The structure of the book makes it particularly enjoyable. The collection is aptly likened to a chain novel in …

Judge Thompson And The Appellate Court Confirmation Process, Carl W. Tobias

Law Faculty Publications

Judge 0. Rogeriee Thompson's appointment to the United States Court of Appeals for the First Circuit was an historic moment, as she became the tribunal's first African American member. The Senate confirmed her in five months on a 98-0 vote, more expeditiously than any of President Barack Obama's other appellate nominees. Indeed, Fourth Circuit nominee Judge Albert Diaz waited thirteen months for approval. The slow pace of judicial confirmation demonstrates that the charges and recriminations, the partisanship and the serial paybacks, which have infused appointments for two decades, remain. Judge Thompson's confirmation, accordingly, deserves celebration and recounting. It both illuminates …

Residential Renewable Energy: By Whom?, Joel B. Eisen

Law Faculty Publications

The technology already exists to put solar photovoltaic (PV) panels on millions of homes, but we have paid inadequate attention to getting them there. This current lack of focus on distribution will limit residential solar deployment indefinitely, unless it is addressed soon. While a number of solutions to this problem have been proposed or are in various stages of implementation, this Article finds that given the pressing need to address climate change, more rapid action is needed. In addition to pursuing other options for generating electricity using renewables (including onshore and offshore wind power, and utility-scale solar power stations), and …

Commercial Law's Complexity, David Frisch

Law Faculty Publications

This Article proceeds as follows. Part I briefly surveys prevailing ideas about the social costs of complexity and identifies additional costs that have escaped the attention of earlier commentators. The aim is to demonstrate why reducing the complexity of the commercial law system matters. Part II describes three legislative responses-two already enacted ·and one proposed- representing efforts to mediate the tension between the need for precise regulation and the generation of overly complex rules that often results. Part III provides a closer examination of these legislative responses and demonstrates that, taken together, they create an opportunity for the implementation of …

The Recent Amendments To Ucc Article 9: Problems And Solutions, David Frisch

Law Faculty Publications

This article examines three of the forthcoming amendments to Article 9 in some detail: (1) the required name of an individual on a financing statement; (2) the perfection of collateral following the debtor's relocation to a new jurisdiction; and (3) collateral acquired by a new debtor. In the interest of brevity, the discussion of other, less noteworthy, amendments of the statutory text and Official Comments is not as complete. The primary purpose of this article is to off er guidance to legal professionals confronting particular issues under current and future Article 9.

Authenticating Digital Government Information, Timothy L. Coggins

Law Faculty Publications

The quotation above from St. Clair v. Johnny's Oyster & Shrimp, Inc., a 1999 US federal district court case, captures a perception of the trustworthiness of digital information that over ten years later is, in many instances, still uncomfortably close to reality. It raises two important questions with which governments providing online information and users of that information must grapple: Is digital government information reliable and trustworthy? Has the government entity providing digital information online taken the care necessary to ensure its authenticity? This chapter presents a historical perspective of authenticity of government information, provides definitions of significantterms and phrases …

Liability Insurance Coverage For Clergy Sexual Abuse Claims, Peter N. Swisher

Law Faculty Publications

This article addresses issues that arise when a policyholder under a standard general liability insurance policy, not containing an express sexual abuse coverage endorsement (or an express sexual abuse exclusion), seeks insurance coverage for sexual abuse claims. Such cases continue to increase in frequency as the legacy of sexual abuse and molestation generates an unrelenting deluge of insurance coverage claims.

The purpose of this article is to explore and analyze the case law and various legal theories supporting and rejecting liability insurance coverage claims involving institutional sexual abuse allegations. This article concludes by recommending a better-reasoned objective concurrent causation legal …

Will You Go To Jail For Copyright Infringement?, James Gibson

Law Faculty Publications

We’ve all seen it. Stick a movie in the DVD player, and up pops a scary message from law enforcement: if you infringe copyright, the feds will come after you. Indeed, this threat is so ubiquitous that it has worked its way into popular perception; as any copyright expert knows from cocktail party conversations, laypeople seem to view copyright infringement as mostly a criminal matter.

It’s certainly possible to go to jail for violating copyright law, as long as the violation is willful and involves specific kinds or amounts of infringement. And the good news for copyright owners is that …

Virginia Should Abolish The Archaic Tort Defense Of Contributory Negligence And Adopt A Comparative Negligence Defense In Its Place, Peter N. Swisher

Law Faculty Publications

The purpose of this essay is to argue that the time has now come for Virginia, by judicial or legislative action, to abolish its archaic common law tort defense of contributory negligence and replace it with a comparative negligence defense. Adopting a comparative negligence defense would more equitably and more fairly recognize and apportion damages according to the bedrock underlying tort legal principles of accountability, deterrence, and distribution of loss.

Narrative And The Origins Of Law, Allison Anna Tait, Luke P. Norris

Law Faculty Publications

In order to understand these distinct narratives of legal origin through the tools of narratology, we will proceed in several steps. First, we will define more precisely the set of social contract theories that we consider. We will discuss our decision to narrow the focus down to two social contract theorists in particular, one contemporary and one classical, John Rawls and Jean-Jacques Rousseau. These two theorists seem worlds apart in many respects—yet the tools of narratology will enable us to see their shared enterprise. Second, the tools of narratology will help us to identify and discuss the component parts that …

Mancession Or Momcession? Good Providers, A Bad Economy, And Gender Discrimination, Allison Anna Tait

Law Faculty Publications

Against this backdrop of precarious and disappearing work, two new elements became important: who was out of work, and how those still employed were navigating bad jobs. These questions laid the foundation for a flood of stories concerning unemployment and bad employment. Unsurprisingly, gender played a leading role in the debates. This article will discuss these two concerns--employment and workplace discrimination-as they intersect with gender and gender stereotypes.

Book Review: Beyond Intellectual Property: Matching Information Protection To Innovation, Kristen Osenga

Law Faculty Publications

William Kingston frames this book around a clearly stated premise: the focus of information protection regimes has shifted from benefiting the public to benefiting private individuals with interests in the game—and this shift is not good. Early on, protection of information was shaped by actors with no personal stake but rather a desire to encourage invention and innovation for the public good. These actors were primarily limited by constitutional provisions and bureaucratic inefficiencies. As time went on,and as information became a more important commodity, information protection schemes were fashioned, or perhaps twisted, by the parties that would derive the most …