Law Commons^™

Where Tradition Meets Innovation: Providing A Practice-Oriented Curriculum, Andrea Lyon

Law Faculty Publications

No abstract provided.

Appellate Court Rules Governing Publication, Citation, And Precedential Value Of Opinions: An Update, David R. Cleveland

Law Faculty Publications

In the mid-1970s, the federal courts of appeals began to issue opinions designated “unpublished” that were not typically published, citable, or accorded any precedential value. Many states followed suit. A great debate ensued questioning the practice, which has consumed considerable academic attention and appellate rulemaking time.1 States continue to vary in their treatment of unpublished opinions and even in the wake of Federal Rule of Appellate Procedure 32.1, intended to provide uniformity, the federal circuits remain inconsistent.

Facing The Unborn, Richard Stith

Law Faculty Publications

(excerpt) An ultrasound video of an unborn child sucking its thumb makes a case against abortion that reason hardly need supplement. But a zygote photographed just after an in vitro conception is not so easily recognizable as a human being or person. Pro-lifers often assume that this difficulty has been overcome by modern science. Since the 1820s, when evidence of ovular fertilization first became known, it has been clear that the life of a human being runs from conception to death.

Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, D. A. Jeremy Telman

Law Faculty Publications

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put …

The Status Of Nonstatus, Geoffrey Heeren

Law Faculty Publications

No abstract provided.

Of Valentines, Diamonds, Emeralds And Peanuts: Heart Balm In Virginia, Paul M. Birch

Law Faculty Publications

A light look at heart balm statutes and Peter v. Langley, Civ. 89241 (Va. Cir. Ct. Nov. 6, 2014).

Divorce Equality, Allison Anna Tait

Law Faculty Publications

The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution-marriage as an economic …

The Killer Robots Are Here: Legal And Policy Implications, Rebecca Crootof

Law Faculty Publications

In little over a year, the possibility of a complete ban on autonomous weapon systems—known colloquially as “killer robots”—has evolved from a proposal in an NGO report to the subject of an international meeting with representatives from over eighty states. However, no one has yet put forward a coherent definition of autonomy in weapon systems from a law of armed conflict perspective, which often results in the conflation of legal, ethical, policy, and political arguments. This Article therefore proposes that an “autonomous weapon system” be defined as “a weapon system that, based on conclusions derived from gathered information and preprogrammed …

Greenhouse Gas Mitigation Measures In The United States Electric Power Industry, Joel B. Eisen

Law Faculty Publications

This chapter addresses greenhouse gas (GHG) mitigation measures in the US energy sector, and, specifically, those applying to the US electric power industry. The focus is on the systems of federal, state, regional, and local regulation of GHG emissions associated with electricity generation, transmission and distribution, concentrating on the regulatory trends likely to have the largest impacts on mitigating GHG emissions. In addition, this section will discuss the extent to which these systems of regulating GHG emissions have evolved over the past decade.

The Three-Act Argument: How To Write A Law Article That Reads Like A Good Story, Shari Motro

Law Faculty Publications

Why do so many law articles—my own included—leave readers cold? One reason may be that they lack fundamental elements that make up a good story. They lack tension. They lack narrative arc. Over my years teaching seminars and exchanging drafts with colleagues, I’ve developed a recipe that helps me organize ideas into a form that better engages the reader. I’ve also found it to be conducive to a richer, more generative writing process.

The recipe is inspired by guides on dramatic plot. It has three parts: exposition, confrontation, and resolution. The exposition introduces the conflict. In many instances, this conflict …

Sir John Randolph's Reports Of Cases In The General Court Of Virginia (1729-1735), William Hamilton Bryson

Law Faculty Publications

This second edition of Sir John Randolph's Virginia reports was prompted by the discovery in the Library of Congress of another manuscript copy, which was heretofore unknown. I would like to thank Nathan Dorn, of the Law Department of the Library of Congress for bringing it to light. The importance of this discovery is the addition of three cases to the first edition, which was published over a hundred years ago.

In this new edition of these law reports, I have presented these cases in a more usable format for members of the legal profession by extending the abbreviations of …

Judicial Selection In Congress' Lame Duck Session, Carl W. Tobias

Law Faculty Publications

This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.

The Challenge And Recusal Of Judges Of The International Court Of Justice, Chiara Giorgetti

Law Faculty Publications

The rules and mechanisms to challenge and recuse a judge of the International Court of Justice ("ICJ") are unique and pertain to the control mechanisms proper to permanent international dispute resolution bodies, characterized by a plurality of representative, elected judges. Indeed, the Statute of the ICJ ("Statute") provides a series of control mechanisms aimed at ensuring the independence and impartiality of its judges. The drafters of the Statute adopted a multi-tiered approach, relying first on self-control of each judge, and then envisaging a subsidiary control role for the President and the Court as a whole. Third-party requests for recusals are …

Valparaiso University Law School Guide To Faculty Publications 1879-2014, Steven Probst

Law Faculty Publications

The Valparaiso University Law School Guide to Faculty Publications 1879 – 2014, published on the 135^th anniversary of the Law School, intends to provide a comprehensive view of faculty publications throughout the history of the institution. It includes the published books, articles, book chapters, essays, introductions, forewords and book reviews written or edited by the Valparaiso Law School faculty.

Opening The Barnyard Door: Transparency And The Resurgence Of Ag-Gag & Veggie Libel Laws, Nicole Negowetti

Law Faculty Publications

Over the past several decades, as the agricultural system became increasingly industrialized and the steps from farm to plate multiplied, consumers became farther removed from the sources of their food. Until recently, most consumers in America were content to eat their processed, cheap, and filling foods without giving a second thought to how these foods were produced. The tides are changing. Increasingly, consumers are calling for more transparency in the food system. Repulsed by images of animal cruelty and shocked by unsavory food production practices, consumers want the food industry’s veil lifted and are demanding changes in food production. The …

Amnesty International Report On Police Use Of Force, Wesley M. Oliver

Law Faculty Publications

Amnesty International last week harshly criticized the US for not providing standards strictly limiting the use of lethal force by police to those occasions when no other options are available and such force is essential to save lives.

War, Responsibility, And Killer Robots, Rebecca Crootof

Law Faculty Publications

In War and Responsibility, John Hart Ely argues that Congress has willingly and cravenly surrendered its rightful role as the branch responsible for determining when and the extent to which the United States engages in armed conflicts. Since the publication of this seminal work on the war power, presidents have continued to commit troops to hostilities absent or outside of explicit congressional authorizations-and the legislature and the judiciary rarely challenge such actions.

Meanwhile, the United States is investing heavily in unmanned military weapon systems, and the U.S. Department of Defense has described increasing weapons' autonomous capabilities as a "high priority." …

Fair Use And The Faces Of Transformation, Part Ii, James Gibson

Law Faculty Publications

In my last IP Viewpoints entry, I discussed the origin of “transformation” as a major factor in copyright’s fair use doctrine. In particular, I focused on “expressive” transformation, in which the user changes the actual content of the copyrighted work. Taking old works and turning them into something new is the way that culture usually evolves, so it is no surprise that copyright law would sometimes allow users to engage in such conduct without needing to pay for the privilege.

Yet there is also a second kind of transformation, one that does not involve the alteration of the underlying material. …

Scholarship Against Desire, Shari Motro

Law Faculty Publications

This article uses my own experience navigating the law review placement process to reflect on the dynamics that shape intellectual life at American law schools. My recent work focuses on the legal relationship between unmarried lovers who conceive. At its heart, it is about the law’s role in shaping the precursor to pregnancy—heterosexual sex. When I began researching this topic what I was most curious about was how law and culture might conspire to foster connections that are more loving and less violent, more authentic and less alienated. Pursuing this topic—which would entail exploring big existential questions to which I …

Tribute To Gail Zwirner, Paul Birch

Law Faculty Publications

A tribute to professional law librarian Gail Zwirner on her retirement from the University of Richmond Muse Law Library.

Freedom From Official Corruption As A Human Right, Andrew B. Spalding

Law Faculty Publications

International law does not currently regard an act of official corruption as the violation of a human right. But as recent steps by Chinese leaders, political shifts in India, the EuroMaidan in Ukraine, and the Arab Spring all reflect, an international consensus is emerging that corruption is a pervasive and pernicious social problem, structural obstacle to economic growth and threat to global security.

Death As A Bargaining Chip: Plea Bargaining And The Future Of Virginia's Death Penalty, John G. Douglass

Law Faculty Publications

Virginia now averages less than a single death sentence each year, a far cry from its not-too-distant history as the second most active death penalty state in the nation. The numbers alone tempt us to forecast the death of Virginia's death penalty: a death by disuse. But those numbers leave much of the story untold. The plummeting number of death sentences is only the diminishing tip of a larger, more stable iceberg of capital case litigation. That iceberg is melting very slowly, if at all.

Brief For Federal Energy Regulatory Commission As Amici Curiae Of Energy Law Scholars Supporting Petitioners, Joel Eisen

Law Faculty Publications

Amici curiae are law professors who have significant research and teaching experience in the field of energy law, with a particular focus on electric power markets. They are listed in the Appendix to this brief. They are submitting this brief because they believe that the U.S. Court of Appeals for the District of Columbia Circuit made serious errors when it held that the Federal Energy Regulatory Commission (FERC) lacked authority to regulate operators’ rules for demand response (DR) in the wholesale electricity markets.

Modern "Sappers And Miners": The Rehnquist And Roberts Courts And The Civil Rights Act Of 1964, Jonathan K. Stubbs

Law Faculty Publications

o orient readers on what is at stake, Section I provides a brief overview of the substantive provisions of the Civil Rights Act of 1964. Section II considers reasons why the Act was premised on Congress' Commerce Clause authority rather than the enforcement power that the Constitution confers upon Congress under the Thirteenth and Fourteenth Amendments. Section III evaluates several recent Supreme Court decisions that give the Commerce Clause a restrictive interpretation. For illustrative purposes, this section ex- plores the impact on Title Two of the Act. Finally, the article closes with a few observations of the implications of the …

God, Civic Virtue, And The American Way: Reconstructing Engel, Corinna Barrett Lain

Law Faculty Publications

If ever a decision embodied the heroic, counter majoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer-Engel v. Vitale. Engel provoked more outrage, more congres- sionalattemptsto overturnit, andmoreattackson theJusticesthanperhapsany other decision in Supreme Court history. Indeed, Engel's counter majoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case.Itdoesnot. Usingprimary source materials, this Article reconstructs the story of Engel, then explores the implicationsof this reconstructednarrative. Engel is not the countermajoritarian case it seems, but recognizing that allows us to see Engel …

How The Federal Cause Of Action Relates To Rights, Remedies, And Jurisdiction, John F. Preis

Law Faculty Publications

Time and again, the U.S. Supreme Court has declared that the federal cause of action is "analytically distinct" from rights, remedies, and jurisdiction. Yet, just pages away in the U.S. Reports are other cases in which rights, remedies, and jurisdiction all hinge on the existence of a cause of action. What, then, is the proper relationship between these concepts?

The goal of this Article is to articulate that relationship. This Article traces the history of the cause of action from eighteenth-century England to its modem usage in the federal courts. This history demonstrates that the federal cause of action is …

Stigmatized Sites And Urban Brownfield Redevelopment, Joel B. Eisen

Law Faculty Publications

This chapter addresses the "stigmatized sites" located in urban areas in the United States and Europe and the "brownfields" redevelopment programs aimed at removing the stigma and promoting remediation and reuse of these sites. Although the European Union has put regulatory frameworks in place, the United States has led the global effort to address brown fields redevelopment, and the discussion in this chapter will focus on American models for brown fields remediation and reuse.

The Secret Economy Of Charitable Giving, Allison Anna Tait

Law Faculty Publications

Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor intent …

Telescoping And Collectivizing Religious Free Exercise Rights, Henry L. Chambers Jr.

Law Faculty Publications

If courts are willing to expand religious liberty so that people may be allowed to choose-on the basis of their own religious beliefs-whether certain laws will apply to non-religious entities they create, those courts should take that step very carefully. This Paper explores the issue and pro- ceeds as follows. Part I discusses three recent Supreme Court cases that il- luminate the telescoping and the collectivization of free exercise rights. Part II considers problems that accompany telescoping and collectivizing free exercise rights. Part III suggests how courts should critically evaluate the telescoping and collectivizing of free exercise rights. This Paper …

Filling The Federal Appellate Court Vacancies, Carl W. Tobias

Law Faculty Publications

Multiple observers have criticized President Barack Obama’s discharge of his Article II constitutional responsibility to nominate and confirm federal judges. Senators have blamed the administration for slowly making nominations, liberals have contended that the executive appointed myriad candidates who are not sufficiently centrist, and conservatives have alleged that President Obama proffered many nominees who could become liberal judicial activists. Despite the sharp criticisms, the President has actually realized much success when nominating and confirming well qualified moderate jurists. President Obama has named more judges than Presidents George W. Bush and Bill Clinton had at this juncture in their tenure, while …