Law Commons^™

Time To Bury The Shocks The Conscience Test, Rosalie Berger Levinson

Law Faculty Publications

The Supreme Court has acknowledged that "the Due Process Clause, like its forebear in the Magna Carta, was 'intended to secure the individual from the arbitrary exercise of the powers of government'...to prevent governmental power from being 'used for purposes of oppression.'"¹ Historically, Magna Carta was aimed a·t limiting the power of the king. Today, substantive due process is invoked to challenge arbitrary deprivations of life, liberty, and property by officials, such as police officers, jail guards, public-school educators, public employers, and members of zoning boards. However, the Supreme Court has emasculated its efficacy as a limitation on executive …

On The Legal Validation Of Sexual Relationships, Richard Stith

Law Faculty Publications

No abstract provided.

Reproduction, Distribution, And "Making Available", James Gibson

Law Faculty Publications

When an individual makes a music or movie file available for downloading by others, without the permission of the copyright owner, is that an infringing act? Or does infringement take place only when the file is actually downloaded?

This thorny copyright issue is at the heart of much of the controversy over file-sharing. It’s relatively simple for a copyright owner to prove that a file has been made available for download, but it’s much harder to prove that a download has actually occurred. So if liability attaches to the mere act of “making available,” record labels and movie studios will …

Why Should International Law Be Concerned About State Failure?, Chiara Giorgetti

Law Faculty Publications

In the last fifty years, the international community has undergone a transformation, as social, economic, and political dynamics have been altered. In fact, the international power structure has shifted towards a more complex structure, economies have been largely liberalized, new powerful international actors have emerged, and security threats have altered significantly. These transformations impacted all nation States. Indeed, a new standard of governance emerged that resulted in increased responsibility to each State's nationals. Similarly, States have become increasingly interindependent and have additional (both in numbers and substance) obligations towards each other and the international community in general. Certain States, however, …

The Price Of Pleasure, Shari Motro

Law Faculty Publications

This Article argues that unless sexual partners explicitly agree otherwise, pregnancy should create a unique type of legal relationship. This relational default would come with certain obligations: in limited circumstances, a woman would be expected to communicate the fact of a pregnancy to the man with whom she conceived, and a man would be required to help support her during pregnancy and recovery. Child support obligations should kick in only once a child is born; until and unless this happens, a man's economic responsibility should be conceptualized as a responsibility towards the woman herself.

The goal of this Article is …

Wills, Trusts And Estates (Annual Survey Of Virginia Law, 2009-2010), J. Rodney Johnson

Law Faculty Publications

The 2010 Session of the General Assembly enacted wills, trusts, and estates legislation (i) adopting the Uniform Power of Attorney Act, (ii) passing emergency legislation for the construction of tax-oriented wills and trusts of persons who die during 2010 with documents drafted prior thereto, (iii) revising the small-estate statutes, and (iv) clarifying the burial power of attorney. In addition, there were six other enactments, and seven opinions from the Supreme Court of Virginia during the one-year period ending June 1, 2010 that present issues of interest in this area. This article reports on all of these legislative and judicial developments, …

Forward, Daniel T. Murphy

Law Faculty Publications

Introduction to Symposium issue, "A Collision of Authority: The U.S. Constitution and Universal Jurisdiction."

The Wild West Of Supreme Court Employment Discrimination Jurisprudence, Henry L. Chambers, Jr.

Law Faculty Publications

This Essay considers three cases decided in the Supreme Court's 2008-2009 term and notes some of the major issues that are left open for discussion after these cases; its purpose is not to catalog every issue that these cases raise. Taken together, these cases challenge employment discrimination doctrine in a fundamental way. This provides the Fourth Circuit in particular the opportunity to continue doing what it has often done-think creatively about employment discrimination doctrine. This is an observation, not a criticism of the Fourth Circuit. It suggests that the Fourth Circuit can make a difference. Of course, the Fourth Circuit's …

Who's Afraid Of The Berne Convention?, James Gibson

Law Faculty Publications

A few months ago, I wrote an essay for this series that argued for reinstatement of formalities as a prerequisite to copyright protection. I left unaddressed one of the main objections to such a system: the fact that international law is unfriendly to formalities. I address that objection here.

The most pertinent international law is the Berne Convention, a multilateral treaty that dates to the 1800s. Since 1908, Article 5(2) of the treaty has prevented any signatory nation from requiring formalities such as registration and notice as a condition of copyright protection. It was the United States’ accession to the …

Diversity And The Federal Bench, Carl W. Tobias

Law Faculty Publications

Justice Sonia Sotomayor's appointment was historic. She is the first Latina Supreme Court member and President Barack Obama's initial appointment. Her confirmation is the quintessential example of his commitment to increasing ethnic and gender diversity in the judiciary; it epitomizes how the administration has nominated and appointed people of color and women to the appellate and district courts. Enhancing diversity honors valuable goals. Selection across a presidency's initial fifteen months also creates the tone. These ideas suggest that the nascent administration's judicial selection merits evaluation, which this paper conducts. Part I briefly assesses modern chief executives' divergent records in naming …

Much Ado About Nothing Much: Protestant Episcopal Church In The Diocese Of Virginia V. Truro Church, Henry L. Chambers, Jr.

Law Faculty Publications

Protestant Episcopal Church in the Diocese of Virginia u. Truro Church ("Truro") involves a property dispute. The core issue is who owns or controls property held in trust for an Episcopal congregation after a majority of that congregation votes to disaffiliate from the Episcopal Church of the United States of America ("TEC") and affiliate with a different church. Deciding a church property dispute is inherently difficult because courts are generally "not a constitutionally permissible forum" to resolve ecclesiastical issues. Indeed, the desire to avoid such issues can lead courts to decline to decide particular cases. However, faced with the property …

Formalities And Tiered Copyright Protection, James Gibson

Law Faculty Publications

In my last IP Issues entry, I discussed the advantages of reinstating formalities as prerequisites to copyright protection. In this entry, I will suggest one way in which this reinstatement might take place.

For most of modern copyright law’s existence, a work of expression received copyright protection only if the author complied with several formalities, such as registering the work with a government agency and placing a copyright notice on each copy of the work (the ubiquitous C-in-a-circle).

These formalities served two functions. The first is what I call the “threshold” function: They gave the author a chance to demonstrate …

Improving Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

Review of Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times (2006).