Law Commons^™

Transitional Equality, Suzanne A. Kim

University of Richmond Law Review

Legal discussions of inequality often focus on the virtues of one legal status or regulatory structure over another, but a guarantee of the right to a particular legal status does not ensure a lived experience of equality in that status. In moments of legal change, when a person or class of persons obtain a new status or gain rights that had previously been denied to them, the path from one legal status to another becomes critically important and may itself be impacted by race, gender, age, and other factors. The process of transitioning to a new status can be complex …

Preface, Kurt D. Lockwood

University of Richmond Law Review

We are proud to present the fourth volume of the Online Edition of the University of Richmond Law Review. In the proud tradition of our publication, we have once again sought to publish timely and relevant scholarship.

Max's Taxes: A Tax-Based Analysis Of Pet Trusts, Gerry W. Beyer, Jonathan P. Wilkerson

University of Richmond Law Review

No abstract provided.

Acknowledgments, So Ra Ko

University of Richmond Law Review

I present the last book of Volume 53, the last in a series of four print issues the University of Richmond Law Review publishes throughout the academic year. Our publications would not have been possible without those who generously dedicated their time to this organization. As those before me, I take these first few pages of this final book to offer my gratitude to those who have contributed to the successes of the Law Review.

When The Problem Is The Solution: Evaluating The Intersection Between The U Visa “Helpfulness” Requirement And No-Drop Prosecution Policies, Diane Mickelson

University of Richmond Law Review

When Congress introduced the U visa in 2000, it intended to create a program that not only protected immigrant victims of domestic violence from deportation, but also strengthened law enforcement’s ability to investigate crimes and encouraged victims to report the abuse. Traditionally, immigrant victims are particularly vulnerable to domestic violence and have been provided with few options to leave the relationship without risking their immigration status. However, while the U visa provides immigration protections to broad categories of victims, it contains a unique “helpfulness” requirement that compels victims to continually cooperate with law enforcement in order to receive the necessary …

Silence Of The Liberals: When Supreme Court Justices Fail To Speak Up For Lgbt Rights, David S. Cohen

University of Richmond Law Review

In 1985, Justice Brennan did something that had never been done before and has, surprisingly, never been done again—penned a separate opinion from the Court’s left vigorously arguing for the protection of gay rights under the Constitution. Since then, even though the Court has repeatedly protected gay rights, none of the Court’s liberal Justices have said a word on the topic. Rather, the liberal Justices have ceded the territory on the issue of the Constitution and gay rights almost entirely to Justice Kennedy’s notoriously flowery but somewhat vacuous statements about the issue, as well as the pointed and often homophobic …

Eliminating Liability For Lack Of Informed Consent To Medical Treatment, Valerie Gutmann Koch

University of Richmond Law Review

The legal doctrine of informed consent, which imposes tort liability for failure to disclose the risks, benefits, and alternatives of a proposed medical intervention, is often criticized for emphasizing ritual over relationships, contributing to the deterioration of the doctor-patient relationship by encouraging the practice of defensive medicine. This article considers a rather radical response to the allegations that the tort of lack of informed consent does not serve the lofty goal of protecting patient self-determination by ensuring that treatment decisions are voluntary and informed, namely the elimination of liability for failure to provide informed consent to medical treatment. In doing …

Intellectual Property And Human Rights 2.0, Peter K. Yu

University of Richmond Law Review

Written in celebration of the seventieth anniversary of the Universal Declaration of Human Rights, this article calls for greater methodological engagement to refine existing human rights approaches to intellectual property and to devise new approaches to advance the promotion and protection of human rights in the intellectual property area. This article begins by briefly recapturing the past two decades of scholarship on intellectual property and human rights. It documents the progress scholars have made in this intersectional area. The article then draws on the latest research on human rights methods and methodology to explore whether and how we can take …

Improving Lawyers’ Health By Addressing The Impact Of Adverse Childhood Experiences, Karen Oehme, Nat Stern

University of Richmond Law Review

Although the legal profession has recognized the importance of improving attorneys’ mental health, it has largely ignored recent social and scientific research on how adverse childhood experiences (“ACEs”) can harm attorneys’ long-term well-being. This article reviews the science of ACEs and argues that law schools and the legal profession should educate law students and attorneys about the impact of prior trauma on behavioral health. Without such education, law schools and the legal system are missing a crucial opportunity to help lawyers prevent and alleviate the maladaptive coping mechanisms that are associated with ACEs. Until such knowledge is widespread, many lawyers …

Can You Truly Be Happy In Law School? An Analysis Of Law School Advice, Michael Conklin

University of Richmond Law Review

There are many books available to help students navigate the more concrete aspects of law school, such as studying, exam strategies, how to brief a case, making law review, and on-campus interviews. Kathryne M. Young, in her 2018 book, How to Be Sort of Happy in Law School, primarily focuses on the more intangible side. The 300-page book dedicates only forty-three pages to the topics of studying and exam strategies. Young’s format frees up space to cover the more amorphous aspects of law school. This review will analyze the book’s coverage of critiques of the law school structure, indoctrination attempts, …

Curating Campus Speakers, Henry L. Chambers Jr.

University of Richmond Law Review

Curation—the picking and choosing of materials for pedagogical reasons—regularly occurs on college campuses both inside and outside of the classroom. This brief essay explains that curation in two contexts. Part I discusses the curation of courses inside the classroom. Part II discusses the curation of campus speakers outside the classroom. Though applied to different topics, the process of curation is similar in both contexts. Considering both forms of curation can help illuminate and resolve some of the most important issues underlying the debate regarding controversial campus speakers.

Life, Liberty, And The Pursuit Of Paid Parental Leave: How The United States Has Disadvantaged Working Families, Kate Miceli

University of Richmond Law Review

This article argues the critical need for the United States to pass a comprehensive paid parental leave program, specifically, the FAMILY Act, to support all families’ financial and caregiving needs and eliminate gender bias in the workplace. First, this article explains the current state of federal parental leave in the United States. Next, it details what an ideal parental leave policy should look like. Finally, it explores current paid parental leave options on the state level as well as proposed federal legislation.

The First Amendment And The Great College Yearbook Reckoning, Maryann Grover

University of Richmond Law Review

I advance my argument in three parts. In Part I, I discuss the law as it currently applies to student publications. I begin by briefly addressing the law as it applies to student publications in high schools as a way of demonstrating the lack of clarity in the law as it applies to student publications on college campuses. I then discuss the current state of speech regulation for student publications, including yearbooks, on college campuses. In Part II, I discuss each of the categories of unprotected speech as they are currently interpreted by the Supreme Court, and I demonstrate how …

Table Of Contents

University of Richmond Law Review

No abstract provided.

Fair Housing Act At Fifty, Sara Pratt

University of Richmond Law Review

I’m going to talk a little bit about why it is that the Fair Housing Act at fifty still is relevant. I mean, after all, should it really be relevant?

How is it that a law that languished in Congress for years and then was abruptly passed when our country was in deep anger, grief, and disbelief at the assassination of Dr. Martin Luther King is still relevant? There’s virtually no legislative history around the passage of the law. It was going nowhere in Congress until Dr. King was assassinated. There was no time to build up to it in …

Table Of Contents: Allen Chair Symposium 2009

University of Richmond Law Review

No abstract provided.

Housing Supply And The Common Wealth, Benjamin P. Campbell

University of Richmond Law Review

It’s a powerful thing to mark the fiftieth anniversary of the Fair Housing Act of 1968, something that actually happened and has actually had an effect. I grew up in segregated Virginia, so I have a pretty powerful sense of the passage of time here. It’s given us the opportunity today to review and mark human progress, to take stock of where we are and to identify the efforts and issues of our time. The victories here have changed the nation, and the task is still daunting.

Coordinated Action On School And Housing Integration: The Role Of State Government, Megan Haberle, Philip Tegeler

University of Richmond Law Review

In this essay, we assess the prospects for more coordinated government efforts to address housing and school segregation at the federal, state and local level. We conclude that multiple barriers to concerted action at the federal and local level, particularly to addressing racial and economic segregation across local boundaries, suggest a more central role for state governments than has previously been the case. State-level laws and programs can succeed as drivers of integration in a way that is distinct from either federal or local interventions, because of the state’s direct control over the key policies that drive modern school and …

Unjust Cities? Gentrification, Integration, And The Fair Housing Act, Olatunde C.A. Johnson

University of Richmond Law Review

What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification’s harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to advance …

The Opportunity And The Danger Of The New Urban Migration, Richard Sander

University of Richmond Law Review

Twenty-first century America is witnessing a broad and unprecedented migration of middle- and upper-middle class families to old, dense, and often low-income urban neighborhoods. This “new urban migration” has the potential to create wholly gentrified neighborhoods that displace existing residents, or to engender racially and economically integrated neighborhoods that strengthen both neighborhoods and central cities. I argue that valuable lessons can be learned from the 1970s, when another large intraurban migration—the vast metropolitan movement of black households into white neighborhoods that followed passage of the Fair Housing Act—produced patterns of resegregation in many cities, but genuine housing integration in others. …

Racism Knocking At The Door: The Use Of Criminal Background Checks In Rental Housing, Valerie Schneider

University of Richmond Law Review

One of the harshest collateral consequences of an arrest or conviction is the impact a criminal record can have on one’s ability to secure housing. Because racial bias permeates every aspect of the criminal justice system as well as the housing market, this collateral consequence—the inability to find a place to live after an arrest or conviction—disproportionately affects minorities.

In 2016, after decades of appearing to encourage local public housing providers to adopt harsh policies barring applicants with criminal records, the Office of General Counsel for the United States Department of Housing and Urban Development (“HUD”) issued guidance instructing public …

Acknowledgements, Carly M. Celestino

University of Richmond Law Review

No abstract provided.

Affordable Housing: Of Inefficiency, Market Distortion, And Government Failure, Michael Diamond

University of Richmond Law Review

In this essay, I examine the types of costs that are imposed on society as a whole due to the absence of a sufficient number of decent housing units that are affordable to the low-income population. These costs present themselves in relation to health care, education, employment, productivity, homelessness, and incarceration. Some of the costs are direct expenditures while others are the result of lost opportunities. My hypothesis is that these costs are significant and offer, at the very least, a substantial offset to the cost of creating and subsidizing the operation of the necessary number of affordable housing units …

Fifty Years Of Fair Housing: Learning From The Past, Looking To The Future, Douglas Wilder

University of Richmond Law Review

I think sometimes you need to wonder where we were in 1968. It wasn’t just the Fair Housing Act that was passed in 1968. What happened in 1968? George Wallace was running for president. Hubert Humphrey was running for president, and Richard Nixon as well. It wasn’t just the assassination of Dr. King, we also had the assassination of Robert Kennedy. We likewise had the Vietnam War, and America was a mess. We had something else occurring in 1968. That was the Kerner Commission Report, that Dr. Crutcher mentioned had been instrumental in the fair housing bill. And they made …

Table Of Contents

University of Richmond Law Review

No abstract provided.

A New Home For Haters—Online Home Sharing Platforms: A Look At The Applicability Of The Fair Housing Act To Home Shares, Allison K. Bethel

University of Richmond Law Review

In 2018, we celebrated the fiftieth anniversary of the Fair Housing Act which outlawed discrimination in residential transactions. When the FHA was passed, the home search process was very different. Fifty years ago, most people searched for housing by viewing listings in newspapers and other printed publications or perhaps used a realtor. Today, most people use the internet to search for housing. Home sharing, where all or part of a home is rented on a short-term basis, has become very popular since 2008 when Airbnb entered the market. It has become a multimillion-dollar business and proponents see great potential in …

Superficial Proxies For Simplicity In Tax Law, Emily Cauble

University of Richmond Law Review

Simplification of tax law is complicated. Yet, political rhetoric surrounding tax simplification often focuses on simplistic, superficial indicators of complexity in tax law such as word counts, page counts, number of regulations, and similar quantitative metrics. This preoccupation with the volume of enacted law often results in law that is more complex in a real sense. Achieving real simplification—a reduction in costs faced by taxpayers at various stages in the tax planning, tax compliance, and tax enforcement process—often requires enacting more law, not less. In addition, conceptualizing simplicity in simplistic terms can leave the public vulnerable to policies advanced under …

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. …

Partnership Lost, Christine Hurt

University of Richmond Law Review

A century ago, two distinct business entities existed that could best be defined by describing either one of them as simply not the other. The corporation and the general partnership were mirror images of one another and opposites on a spectrum of corporate governance, limited liability, and taxation. Partnerships, seen as small, livelihood enterprises between active-owner partners, had personal liability but pass-through taxation. Corporations, seen as larger, capital-intensive enterprises with passive-owner shareholders, had limited liability but double taxation. The tax distinctions survive today, but the stereotypical partnership does not; in fact, the modern partnership is more corporation-like than partnership-like.

Today, …

The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman

University of Richmond Law Review

Thirty-five states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax—commonly called the “tampon tax”—represents an expense that girls and women must bear on top of the cost of biologically necessary items that they need in order to attend school, work, and otherwise participate in public life. This article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any disadvantageous …