Law Commons^™

Why America Still Needs Affirmative Action, Jonathan K. Stubbs

Law Faculty Publications

Affirmative action has gotten a bad rap.Many people think of affirmative action as race-based policies that favor unqualified persons because of the color of their skin. Resentments and misunderstandings flow from such perceptions in part because race remains America’s most inflammatory unfinished business.

To ignite a spirited, thoughtful discussion as well as practical action regarding affirmative action, this article briefly discusses what constitutes affirmative action; evaluates why affirmative action programs that consider race, gender, and class remain necessary; and offers some thoughts regarding when affirmative action should end.

Doctrinal Feedback And (Un)Reasonable Care, James Gibson

Law Faculty Publications

The law frequently derives its content from the practices of the community it regulates. Examples are legion: Tort's reasonable care standard demands that we all exercise the prudence of an "ordinary" person. Ambiguous contracts find meaning in custom and usage of trade. The Fourth Amendment examines our collective expectations of privacy. And so on. This recourse to real-world circumstance has in-tuitive appeal, in that it helps courts resolve fact-dependent disputes and lends legitimacy to their judgments. Yet real-world practice can depart from that which the law expects. For example, suppose a physician provides more than reasonable care - extra tests, …

Federal Policy, Western Movement, And Consequences For Indigenous People: 1790-1920, David E. Wilkins

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

In virtually every respect imaginable—economic, political cultural, sociological, psychological, geographical, and technological—the years from the creation of the United States through the Harding administration brought massive upheaval and transformation for native nations. Everywhere, U.S. Indian law (federal and state)—by which I mean the law that defines and regulates the nation's political and legal relationship to indigenous nations—aided and abetted the upheaval.

Of Inkblots And Originalism: Historical Ambiguity And The Case Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

Ever since Justice Goldberg's concurring opinion in Griswold v. Connecticut, the Ninth Amendment has been a flashpoint in debates over the merits of originalism as an interpretive theory. Judge Bork's comparison of interpreting the Ninth Amendment to reading a text obscured by an inkblot has been particularly subjected to intense criticism. The metaphor has been attacked as erasing the Ninth Amendment from the Constitution, and as representing the inevitably selective and inconsistent use of

text and history by so-called originalists.

It turns out, however, that not only was Judge Bork right to reject Justice Goldberg's reading of the Ninth Amendment, …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment's actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. The Ninth merely demands that such enumerated rights not be construed to deny or disparage other nonenumerated rights retained by the people. The standard use of the Ninth Amendment, in other …

Random Drug Testing, Henry L. Chambers, Jr.

Law Faculty Publications

Random drug testing coexists uneasily with a general Fourth Amendment right to be free of suspicionless government searches. Typically, a governmental search is accompanied by a warrant supported by individualized suspicion, that is, probable cause. Random drug testing involves a search without any particularized suspicion that the subject of the search has used drugs.

Opening Remarks To “No Place To Live: The Housing Crisis Facing Youth Aging-Out Of Foster Care,” A National Symposium Hosted By The Child Advocacy Clinic Of St. John’S School Of Law, March 28, 2008, Dale Margolin Cecka

Law Faculty Publications

Across the country, everyone is talking about a “housing crisis.” For youth who age out of foster care, just finding a place to sleep each night is a struggle. We know that nationally, 54% of recently aged-out youth are homeless or unstably housed. In addition, these youth face higher rates of unemployment, under-education, teen pregnancy, and incarceration. We are gathered here today to address the unique and dire housing needs of youth aging of foster care. I would usually begin a Symposium like this with a story of a young person’s plight, an illustration of the injustices this population faces. …

Seeking Shelter In Tough Times: Securing Housing For Youth Who Age Out Of Foster Care, Dale Margolin Cecka

Law Faculty Publications

Across the country, everyone is talking about a "housing crisis." For youth who age out of foster care, just finding a place to sleep each night is always a struggle. We know that nationally, 54% of recently aged-out youth are homeless or unstably housed. In addition, these youth face higher rates of unemployment, undereducation, teen pregnancy, and incarceration. In the last few years, lawmakers, advocates, and child welfare practitioners have finally started paying attention to adolescents discharged from foster care. This article focuses on laws and programs that target housing issues facing youth aging out of foster care. It also …

Alabama, Timothy L. Coggins

Law Faculty Publications

A report on the state of Alabama's authentication of online legal resources, the first update was recorded in 2007.

Building A Law Firm Library, Joyce Manna Janto

Law Faculty Publications

Opening a law practice is a daunting task. Renting space, equipping an office, and hiring staff are obvious first steps.But what about assembling a library?

The Virginia Judicial System: Organization And Structure, W. Clark Williams Jr.

Law Faculty Publications

No abstract provided.

Annual Survey Of Virginia Law: Administrative Law, John Paul Jones

Law Faculty Publications

This article selects from developments since May of 2007 in the law of Virginia pertaining to the work of administrative agencies state and local, as well as access to their meetings and information in their custody. Elsewhere in this issue of the Annual Survey can be found reports of developments in the laws these agencies are bound to carry out.

The Electronic Workplace, Ann C. Hodges

Law Faculty Publications

The American workplace of the twenty-first century is in the midst of a vast transformation not unlike the Industrial Revolution of the late nineteenth century. The United States has moved from a manufacturing-based economy to a knowledge-based economy. This new era has been variously denominated the Technological Revolution, the Electronic Revolution, or the Digital Revolution. Thomas Friedman has described the transformative change as a flattening of the world. Historians will almost certainly have a name for this monumental change in the economy, which, of course, is affecting not only the United Sttttes but many other countries in the world as …

Kelo V. City Of New London And The Prospects For Development After A Natural Disaster, Carol N. Brown

Law Faculty Publications

The tension between private property rights, human rights, and community are at an all time high in many parts of the world. Social and political changes along with the pressures of globalization call for a new look at the role of private property and its place within the framework of democratic societies.This book addresses the current status of eminent domain and takings law jurisprudence. The focus is the relationship between private property, individual rights and community. The work covers a variety of points of view with respect to the legal, economic, and socio-legal aspects of property and of takings law, …

Procedural Due Process, John Paul Jones

Law Faculty Publications

Encyclopedia article on procedural due process.

Obesity, Poverty, And The Built Environment: Challenges And Opportunities, Wendy Collins Perdue

Law Faculty Publications

Obesity is linked to behaviors related to food consumption and physical activity. Although the factors affecting behaviors in these areas are complex, there is growing evidence that the physical characteristics of many of our communities, and particularly poorer communities, encourage obesity-generating behaviors including a sedentary lifestyle arid unhealthy eating habits. This paper explores the relationship between obesity causing behavior and the physical characteristics of communities and highlights some of the challenges and opportunities associated with changing those physical characteristics.

Beyond The Liability Wall: Strengthening Tort Remedies In International Environmental Law, Noah M. Sachs

Law Faculty Publications

Despite decades of effort, the international community has stumbled in attempts to craft tort remedies for victims of transboundary environmental damage. More than a dozen civil liability treaties have been negotiated that create causes of action and prescribe liability rules, but few have entered into force, and most remain unadapted orphans in international environmental law. In this Article, I explain the problematic record of tort liability regimes by developing a theoretical model of liability negotiations grounded in regime theory from political science. Based on this model, I conclude that negotiated liability regimes have foundered because of three main roadblocks: ( …

Virginia Law: It’S Online, But Should You Use It?, Timothy L. Coggins

Law Faculty Publications

A judge asks you to present her with a copy of the Virginia Code section you are referencing in court, or she asks you to provide a copy of the Supreme Court of Virginia opinion you cited. You used Virginia state government websites to find both the code section and the court opinion. This is easy, right? You give her the copy of what you found online. But could there be a problem? Is the court opinion that you retrieved from the court website considered an official version of the court opinion? Has the Virginia Code section that you provided …

Brownfields And Brac: A Surprising "Compatibility", Joel B. Eisen

Law Faculty Publications

In Part I of this Article, I describe the BRAC process and compare it to the process for remediating abandoned or underused sites in state brownfields programs. I find that while the two systems are different in many significant respects, these differences do not overwhelm the commonalities inherent in comparing two systems that focus on remediating sites and transferring them to their new owners. In Part II, I describe the environmental remediation process of BRAC and positive "surprises" in terms of the statutory preference for finality in remedial actions and for public participation at sites being closed and the more …

Corporate Misconduct And The Perfect Storm Of Shareholder Litigation, Jessica M. Erickson

Law Faculty Publications

When it comes to combating corporate misconduct, is more litigation necessarily better? The conventional wisdom is that we should deploy every weapon in the law's arsenal to combat corporate misconduct. This wisdom, however, reflects legal scholarship that is confined to analyzing securities class actions and derivative suits in isolation, with little inquiry into the interplay between them. By Jailing to take a broader view of shareholder litigation, legal scholars have missed an opportunity to provide courts with the conceptual tools necessary to meet the complex challenges of complex corporate litigation. In courtrooms and boardrooms across the country, a debate is …

Dear President Bush: Leaving A Legacy On The Federal Bench, Carl W. Tobias

Law Faculty Publications

The appointments of Chief Justice John Roberts and Justice Samuel Alito were milestones in your stated quest to transform the courts. Appreciating that a critical duty assigned to the president by the Constitution is nominating and, with Senate advice and consent, appointing judges, you vowed to recommend "strict constructionists." Selection has enhanced importance, given modern perceptions that judges are essentially the final arbiters of societal disputes, including such questions as terrorism and affirmative action. The Hamdan v. Rumsfeld and Grutter v. Bollinger opinions as well as the public school desegregation and Schiavo litigation trenchantly illuminate those notions.

You can still …

St. George Tucker, William Hamilton Bryson

Law Faculty Publications

An encyclopedia entry on St. George Tucker's practice at the bar and how his distinction as a lawyer led to his appointment to the ,General Court of Virginia on January 4, 1788. On January 6, 1804, he was elevated to the Court of Appeals of Virginia.

Baker V. Carr, 369 U.S. 186 (1962), Henry L. Chambers, Jr.

Law Faculty Publications

Baker v. Carr, 369 U.S. 186 (1962) marked the U.S. Supreme Court's entry into the "political thicket" of apportionment and electoral politics that Justice Felix Frankfurter, in his opinion in Colegroe v. Green, 328 U.S. 549 (1946), warned the Court that it should avoid.

Civil Rights Act Of 1964, Henry L. Chambers, Jr.

Law Faculty Publications

The Civil Rights Act of 1964 (42 U.S. C.A.) (the 19 Act) likely has had the greatest transformative effect on American society of any single law. By prohibiting discrimination based on race, color, sex, religion, a national origin in places of public accommodation, in federally assisted programs, in employment, in schools and with respect to voting rights, this massive law has had profound effects on almost every facet of American society.

Lock & Load? The 2nd Amendment Arrives On Campus, Porcher L. Taylor Iii, Beth Anne Simonds

School of Professional and Continuing Studies Faculty Publications

Thanks to the U.S. Supreme Court’s watershed decision regarding the Second Amendment in June, state lawmakers, university policymakers and campus safety personnel nationwide face a conundrum that must be answered in a prudent way. The solution will greatly impact the daily lives of everyone on campus.

Google's New Monopoly? How The Company Could Gain By Paying Millions In Copyright Fees, James Gibson

Law Faculty Publications

Last week, Google settled a controversial copyright case by agreeing to pay tens of millions in licensing fees to authors and publishers, with more to come. At first glance, it looks like this great champion of the free flow of information has caved to copyright interests. But in fact, Google may be better off with a settlement than an outright win. Before the court approves this agreement, then, it must consider the deal's anti-competitive effects. [..]

The Slave, The Fetus, The Body: Articulating Biopower And The Pregnant Woman, Kevin Kuswa, Paul Achter, Elizabeth Lauzon

Rhetoric and Communication Studies Faculty Publications

Many slaveholders attempted to justify the institution of slavery in the United States by claiming that the practice of slavery was actually in the interests of the slaves themselves. Not only are these arguments invalid because they justify inhumane treatment and the imprisonment of innocent human beings, they also contain a dangerous paternalism (a “speaking for”) that has not vacated the social sphere. Indeed, this same logic—the notion that bodies can be regulated and controlled for their own protection—is presently being used to speak for the fetus in order to justify fetal rights. Borrowing from Berlant (1997), these fetal rights …

Radical Labor In A Feminine Voice: The Rhetoric Of Mary Harris 'Mother' Jones And Elizabeth Gurley Flynn, Mari Boor Tonn

Rhetoric and Communication Studies Faculty Publications

Two women in particular, Mary Harris “Mother” Jones and Elizabeth Gurley Flynn, earned stature as labor movement legends. Jones persists as an icon for contemporary champions of progressive causes. Separated in age by nearly six decades, both gained reputations for their “leather-lunged” and militant oratory, their disarming fearlessness, and their uncanny talent for captivating the minds and hearts of audiences regardless of sex or ethnicity. Some observers have linked the pair through what Marx termed “the feminine ferment” of the movement. “The fiery example of Mother Jones had one conspicuous follower,” note Lloyd Morris, “Elizabeth Gurley Flynn.”

A Surprising Book, David G. Epstein

Law Faculty Publications

Review of 1910 book, American Law & Procedure, Volume 1, edited by James Parker Hall.

New Research Uses For Patent And Trademark Data, Roger V. Skalbeck

Law Faculty Publications

In this article, I examine alternative uses for information found in patent and trademark filing databases, suggesting ways to locate a law firm's clients, perform competitive intelligence, and locate or investigate expert witnesses. Finally, I talk about an interesting non-law use of patent data, i.e., historical research.