Law Commons^™

Solving Your Ethical Conundrums: Researching The Rules Of Professional Conduct, Joyce Manna Janto

Law Faculty Publications

Ms. Janto provides a practical guide to researching issues of attorney professional responsibilities using both print and online resources, emphasizing Virginia rules and decisions.

Law Libraries And Options Galore, Gail F. Zwirner

Law Faculty Publications

Ms. Zwirner outlines some of the challenges facing the researcher in deciding which resources to use in pursuing information, and makes a case for the continued value of professional law librarians' insight and experience for assisting in these pursuits.

A Hybrid Methodology For Seeking Attorney's Fees In The Eastern District Of Virginia's Rocket Docket, Timothy D. Patterson

Law Student Publications

As the costs of litigation continue to increase, in large part due to overly broad discovery, the skirmishes in motions to compel are taking on new importance as part of the strategy. Attorneys in large law firms are even developing a subpractice area known as “discovery counsel,” particularly with the explosion of e-discovery over electronically stored information. It is for another article to discuss whether discovery should become so large or complex that practitioners can specialize in it. Thus, it will not come as a surprise to anyone that parallel to this issue is the much sought after, but often …

Virginia Cle Sources: Important Practitioner Tools For Forty Years, Gail F. Zwirner

Law Faculty Publications

Observing the 40th anniversary of the Virginia Law Foundation, Ms. Zwirner highlights some of the foundation's continuing legal education publications of frequent value to practitioners.

This article focuses primarily on the deskbook sources that are the go-to materials in many subject areas for Virginia practitioners. The publisher offers all these sources on CD, USB, or downloads. The titles include the forms that practitioners savor as good starting points for their clients’ needs. These forms account for many reference desk success stories for practitioners who rely on Gouldman’s Virginia Forms and are disappointed when that group does not provide the specificity …

Religious Freedom Legislation In The 2013 Virginia General Assembly, Ellis M. West

Political Science Faculty Publications

If there is any Virginia law that deserves to be called "iconic," it is Section 16 of the Virginia Bill of Rights, which combines the religious freedom provision in Virginia's first Declaration of Rights (1776) with portions of Thomas Jefferson's Statute for Religious Liberty (1785). These two documents also inspired the religion clauses of the First amendment and are world famous.

[...]

This article consists of the following sections: Section one presents the content of the proposed amendment and explains the ways in which it is unclear, redundant, and otherwise poorly written. Section two addresses the issue of whether the …

Grave Injustice: Unearthing Wrongful Executions, Mary Kelly Tate

Law Faculty Publications

This book review discusses Richard A. Stack's book, Grave Injustice, which illustrates the flaws in America's use of capital punishment. "Simply put, the death penalty is shown to be a massive policy failure diminishing the legitimacy of the criminal justice system in the world's leading democracy. Stack uses his reportorial skills to distill the complex subject of the American death penalty into a digestible form, yet he never cuts corners with the human dimension. This dimension is always at the center of crime and punishment and, most hauntingly, at the center of the American death penalty and its tragic …

Using Experiential Education To Develop Human Resources For The Nonprofit Community: A Course Study Analysis, Ann C. Hodges

Law Faculty Publications

In this era of shrinking resources and increased pressure to produce "practice-ready" lawyers, law schools are seeking new and cost-effective ways to provide experiential education. This article reports and analyzes the results of a survey of graduates and students from a course in Nonprofit Organizations that incorporated a community-based project designed to develop skills, enhance learning and encourage post-graduation involvement with nonprofits. Although limited to one course, this course study, like a case study, offers valuable information. Consistent with other research on experiential education, the survey supports the conclusion that such projects, while less resource intensive and comprehensive than clinics, …

Death Penalty Drugs: A Prescription That's Getting Harder To Fill, Corinna Barrett Lain

Law Faculty Publications

Six states have abolished the death penalty in the past six years—Illinois, New York, New Jersey, Connecticut, Maryland, and New Mexico. We haven’t seen mass moves like that since the 1960s. What gives?

Part of the answer is that those states weren’t executing anyway. More people in those states were dying on death row waiting to be executed than were actually being executed, and the death penalty is breathtakingly expensive to maintain (a point to which I’ll return in a moment).

So why weren’t the states executing? We tend to hear about innocence claims, trench warfare litigation, official moratoriums, study …

Amending The Foreign Corrupt Practices Act: Should The Bribery Act 2010 Be A Guideline?, Michael Peterson

Law Student Publications

This paper is divided into four sections. The first section discusses the individual legal aspects of the FCPA and the Bribery Act of 2010; the second section discusses the differing features of the two acts; the third section discusses the criticisms of each of the acts; and the fourth section lays out a proposal of effective amendments which the author feels should be made to the FCPA.

"Ice" Capades: Restitution Orders And The Fcpa, Shane Frick

Law Student Publications

This comment discusses federal restitution orders and why they are not a viable source of compensation for FCPA victims. Section I provides background information on the FCPA and outlines how it is enforced. Section II discusses victims' rights under a series of pieces of federal legislation. Section III looks at the primary precedent in the arena and explains why it shows that the restitution statutes do not provide sufficient FCPA victim restitution. Section IV discusses the pending Wal-Mart case and the issues facing Wal-Mart victims. Section V outlines other avenues of recovery for FCPA victims and proposes new measures for …

Snapchat And Sexting: A Snapshot Of Baring Your Bare Essentials, Nicole A. Poltash

Law Student Publications

This comment explores sexting between minors and its inseparable link to Snapchat. Part II provides background information on the practice and prevalence of sexting. Part III explains the Snapchat application and its various uses. Part IV discusses the implications of sexting, legal and otherwise. Part V examines how Snapchat directly conflicts with current law.13 Lastly, Part VI proposes possible solutions.

Vertical Boilerplate, James Gibson

Law Faculty Publications

Despite what we learn in law school about the “meeting of the minds,” most contracts are merely boilerplate—take-it-or-leave-it propositions. Negotiation is nonexistent; we rely on our collective market power as consumers to regulate contracts’ content. But boilerplate imposes certain information costs because it often arrives late in the transaction and is hard to understand. If those costs get too high, then the market mechanism fails. So how high are boilerplate’s information costs? A few studies have attempted to measure them, but they all use a “horizontal” approach—i.e., they sample a single stratum of boilerplate and assume that it represents the …

Spelling Out Lgbt: Enumerating Sexual Orientation In Virginia's Bullying Law, Melissa Wright

Law Student Publications

This comment explores the various steps being taken to stop LGBT bullying in the Commonwealth of Virginia. Section I discusses why it is important to address the issue of bullying and the deep impact that bullying can have on students' lives. Section II provides a comprehensive look at how other states have addressed bullying and provided enumerated protection for LGBT students. This section also examines federal laws that have been used in bullying claims in the absence of federal anti-bullying legislation. Section III focuses specifically on Virginia anti-bullying legislation and the steps that Virginia has taken to combat LGBT bullying …

Nonprofit Organizations, For-Profit Corporations, And The Hhs Mandate: Why The Mandate Does Not Satisfy Rfra's Requirements, Jonathan T. Tan

Law Student Publications

In 2012, the federal government spawned an enormously divisive issue when it promulgated a regulation that requires certain employers to provide contraception coverage to their employees without cost-sharing. The mandate's supporters see it as an important step in expanding access to vital healthcare for women, whereas its detractors see it as an attempt by the government to force them into violating their deeply held religious beliefs. In a clash between values, the mandate favors access to contraception over the concerns of religious groups....Section II provides background information on the mandate and the convoluted process by which the Departments of Health …

Did We Miss The Boat? The Clean Water Act And Sustainability, Ryan P. Murphy

Law Student Publications

This comment argues for more political accountability and more scientific consideration when addressing water quality. It begins, in Section I, with an overview of the Clean Water Act, its distinction between point and nonpoint sources, and the connection between nonpoint source pollution, water use, and land use. Section II considers the tension between beneficial uses and environmental degradation by taking a look at a dramatic example of hydrologic modification. 5 Section III considers an effluent dominated waterbody-the Los Angeles River-and the difficulties that regulating point sources to the river presents. Finally, Section IV suggests a different approach-one that is modeled …

The Oath: The Obama White House And The Supreme Court By Jeffrey Toobin (Book Review), John Paul Jones

Law Faculty Publications

For anyone with an interest in the politics of courts, Jeffrey Toobin’s The Oath is a good read. Laypersons might see it as a busman’s holiday for lawyers working in American appellate courts, but NAACA members surely appreciate more than most how unique a judicial institution is the Supreme Court of the United States. Thus, there is much to which those working backstage in other venues can relate, but much more offering them frissons of the unusual.

Back To The Bad Old Days: President Putin's Hold On Free Speech In The Russian Federation, Rebecca Favret

Law Student Publications

This paper addresses new laws promulgated in Russia that restrict freedom of speech. Each implicitly reflects the Kremlin's hostility toward political dissidence in the aftermath of serious protests following President Putin's reelection and elections to the legislature. Disturbed by the outcry, which took place in cities across Russia but also infiltrated the Internet, the Russian legislature passed strict laws censoring Internet speech, prohibiting behavior and speech deemed "extremist," and curbing the size and type of public gatherings.

The new legislation is examined through the lens of some of the Kremlin's most infamous and recent targets: namely, the Internet blacklist and …

No Child Left Behind And Special Education: The Need For Change In Legislation That Is Still Leving Some Students Behind, Stephanie S. Fitzgerald

Law Student Publications

In four parts, this article focuses on NCLB’s negative impact on special education. Part II outlines the provisions of NCLB and examines the differences between NCLB and the Individuals with Disabilities Education Act (“IDEA”). Part III provides a detailed explanation of the existing scholarly opinions in support of, and in disagreement with, NCLB. Part IV discusses the current political landscape and NCLB’s pending reauthorization. Finally, Part V, based on an analysis of the issues plaguing the current system, suggests a solution to improve the existing relationship between special education and NCLB. Furthermore, Part V addresses the positive aspects and possible …

Education & Practice (Newsletter Of The Section On Education Of Lawyer, Virginia State Bar) - V. 21, No. 1 (Spring 2013), Dale Margolin Cecka

Law Faculty Publications

Contents

Changing the Dynamics of Legal Education: Now What About that “Professional Responsibility” Class?, by Leslie Haley, Esq., founder of Haley Law PLC in Midlothian, VA.

Chair’s Column, Professor A. Benjamin Spencer of Washington and Lee School of Law

Work of the ABA’s Standards Review Committee, by Thomas Edmonds, Distinguished Visiting Professor at Charleston School of Law.

William R. Rakes Leadership in Education Award

Law Faculty News

News and Events Around the Commonwealth

Section’s Website Update

2012-2013 Board of Governors

Union Dues In The Public Sector: Legislative Changes And Legal Challenges, Ann C. Hodges

Law Faculty Publications

The economic crisis that began in 2008 led many states and localities to look for ways to reduce labor costs, which form a substantial portion of government budgets. Some state legislatures focused on collective bargaining laws, with Wisconsin being the most high profile example. Along with the restrictions on bargaining, a number of states moved to limit the collection of union dues. The limitations were not across the board, but primarily directed at either political expenditures of unions or at particular unions, most commonly education unions. Not surprisingly, the laws enacted were immediately subjected to legal challenge sinceunions, like every …

Inkblot: The Ninth Amendment As Textual Justification For Judicial Enforcement Of The Right To Privacy, Kurt T. Lash

Law Faculty Publications

One of the more indelible moments in late twentieth century legal discourse occurred when Judge Robert Bork described the proper response of a judge confronted with the Ninth Amendment. Nominated to replace retiring Supreme Court Justice Lewis Powell, Judge Bork appeared before the Senate Judiciary Committee and declared that courts had no business enforcing the mysterious clause at all. Given the scarcity of historical evidence regarding the original meaning of the amendment, using the Ninth Amendment to strike down a law would say more about the predilections of the judge than the requirements of the text. Here is the famous …

The Top Three Copyright Cases Of 2012, James Gibson

Law Faculty Publications

In my last entry in this series, I examined three important patent law cases from 2012 – one at the Supreme Court level, one at the appellate level, and one at the trial court level. I’ll now do the same thing with regard to copyright cases.

My Supreme Court choice is Golan v. Holder, in which the Court upheld a statute that restored U.S. copyright protection to certain foreign works, thus removing them from the public domain. Such works had lost their protection – or had never acquired it in the first place – because of their failure to comply …

In Defense Of Implied Injunctive Relief In Constitutional Cases, John F. Preis

Law Faculty Publications

If Congress has neither authorized nor prohibited a suit to enforce the Constitution, may the federal courts create one nonetheless? At present, the answer mostly turns on the form of relief sought: if the plaintiff seeks damages, the Supreme Court will normally refuse relief unless Congress has specifically authorized it; in contrast, if the plaintiff seeks an injunction, the Court will refuse relief only if Congress has specifically barred it. These contradictory approaches naturally invite arguments for reform. Two common arguments-one based on the historical relationship between law and equity and the other based on separation of powers principles--could quite …

Mass Tort Claims In International Investment Proceedings: What Are The Lessons From The Ecuador-Chevron Dispute?, Chiara Giorgetti

Law Faculty Publications

In parallel to the La go Agrio and Aguinda litigations in the U.S. and Ecuadorian proceedings that have been discussed already,l the Chevron dispute includes an international dimension that presents equally complex and important challenges, but focuses on very different issues and involves different parties. My remarks introduce these international proceedings first to explain the different actions taken by the parties in different forums. I then assess the viability of international dispute resolution mechanisms for mass tort claims in general, before considering more specifically whether they can provide sufficient redress to mass tort claimants. Finally, I briefly introduce alternative dispute …

Foreign And International Legal Research, Maureen Moran

Law Faculty Publications

As you have been learning, the American legal system is only one of hundreds in the world. Each of those legal systems has its own rules, sources, and authorities. But these systems do not exist in a vacuum. What rules govern when two or more States or entities interact? What are the enforcement mechanisms? The study of these questions comprises the fields of foreign law and international law. The purpose of this chapter is not to give you a comprehensive review of all the resources available for researching this vast field of law. Rather, the goal is to give you …

Bank Recapitalizations: A Comparative Perspective, Da Lin

Law Faculty Publications

We have been here before. No matter how different the latest financial frenzy or crisis always appears, there are usually remarkable similarities with past experience from other countries and from history.

Constructing Courts: Architecture, The Ideology Of Judging, And The Public Sphere, Allison Anna Tait

Law Faculty Publications

In several countries, governments have embarked on major building expansion programs for their judiciaries. The new buildings posit the courtroom as their center and the judge as that room’s pivot. These contemporary projects follow the didactic path laid out in Medieval and Renaissance town halls, which repeatedly deployed symbolism in efforts to shape norms. Dramatic depictions then reminded judges to be loyal subjects of the state. In contrast, modern buildings narrate not only the independence of judges but also the dominion of judges, insulated from the state. The significant allocation of public funds reflects the prestige accorded to courts by …

Harry L. Carrico And The Ideal Of The Lawyer-Statesman, Wendy Collins Perdue

Law Faculty Publications

“Professionalism.” This is a word that will always be associated with Justice Carrico—not only because he was a consummate professional himself, but also because he was dedicated to assuring that all lawyers understood the full ethical, social, and behavioral implications of their role as lawyers. Under his leadership, Virginia became the first state to require all newly-admitted lawyers to take a day-long course in professionalism. It is a model that has been widely emulated around the country.

Tribute To Chief Justice Harry L. Carrico, John G. Douglass

Law Faculty Publications

An insightful personal perspective of Chief Justice Harry L. Carrico by Professor John G. Douglass.

The Virtues Of Thinking Small, Corinna Barrett Lain

Law Faculty Publications

Professor Lain argues that, in efforts to determine how close American states are to abolishing the death penalty, scholars should "think small," examining the ground level issues that affect its imposition. Among the issues she explores are exonerations of defendants, the legality and obtainability of lethal injection drugs, and the high costs of seeking and imposing capital punishment.