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1995

University of Richmond Law Review

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Annual Survey Of Virginia Law: Domestic Relations, Deanna D. Cook Jan 1995

Annual Survey Of Virginia Law: Domestic Relations, Deanna D. Cook

University of Richmond Law Review

It is well known that non-conforming payments or overpayment of support will not entitle a payor spouse to future credit against his obligations. This continues to be the rule in Virginia. In the case of Sanford v. Sanford, the Virginia Court of Appeals reversed the trial court's decision to credit excess spousal support payments made by the husband against his future obligations. The husband agreed to pay spousal support pursuant to a property settlement agreement, which was incorporated into the parties' final divorce decree. The husband was then terminated by his employer, but he received one year severance pay ...


Quantifying Liability Under The Architect's Standard Of Care, Murray H. Wright, David E. Boelzner Jan 1995

Quantifying Liability Under The Architect's Standard Of Care, Murray H. Wright, David E. Boelzner

University of Richmond Law Review

In recent years, architects and other design professionals have become the targets of claims arising from problems encountered in construction projects. In addition to incurring the costs of defending such claims, these design professionals (or their insurers) have often found themselves absorbing the liability for many "errors and omissions" that are difficult to defend when individually excerpted from a substantial project. This treatment of claims for defective design reflects a distortion of the architect's professional standard of care that is justified neither by the contractual liability assumed by the architect nor by the economic balance among the parties involved ...


Defending Pornography: Free Speech, Sex, And The Fight For Women's Rights, Melvin I. Urofsky Jan 1995

Defending Pornography: Free Speech, Sex, And The Fight For Women's Rights, Melvin I. Urofsky

University of Richmond Law Review

One of the more interesting, and at times more strident, debates in recent years is between a faction of the feminist coalition, proposing new and harsher methods of eliminating pornography and of punishing those who produce and purvey it, and civil libertarians, including many other feminists, who oppose such measures primarily on First Amendment grounds. The debate extends well beyond the cloistered halls of academe, and is far from arcane or hypothetical.


Form V. Substance: The Supreme Court Retreats Into Its Formalistic Shell In Oklahoma Tax Commission V. Jefferson Lines, Jason P. Livingston Jan 1995

Form V. Substance: The Supreme Court Retreats Into Its Formalistic Shell In Oklahoma Tax Commission V. Jefferson Lines, Jason P. Livingston

University of Richmond Law Review

The Constitution expressly authorizes Congress to "regulate Commerce with foreign Nations, and among the several States." However, it says nothing about the protection of interstate commerce absent any affirmative action by Congress. The Supreme Court has consistently recognized implicit in the language of the Commerce Clause "a further, negative command, known as the dormant Commerce Clause, prohibiting certain state taxation even when Congress has failed to legislate on the subject." In finding that states may constitutionally tax the local portion of interstate business transactions, the Court has held that "[it was not the purpose of the Commerce Clause to relieve ...


Procedural Labyrinths And The Injustice Of Death: A Critique Of Death Penalty Habeas Corpus (Part One), Alan W. Clarke Jan 1995

Procedural Labyrinths And The Injustice Of Death: A Critique Of Death Penalty Habeas Corpus (Part One), Alan W. Clarke

University of Richmond Law Review

Habeas corpus was once a broad writ of liberty: it served to give meaning to expanding notions of due process, it forced state judicial systems to obey constitutional commands, and it made effective modern conceptions of fundamental fairness. Although a simple implement of humble origin, U.S. habeas corpus became inextricably interwoven with the substantive rights it enforced. Without a practical remedy, cutting across state boundaries and affording uniform access, the substantive rights themselves lose meaning. A right without remedy is a right without meaning. Thus, habeas corpus became an important part of the substantive rights that it enforced.


Annual Survey Of Virginia Law: Civil Practice And Procedure, Donald P. Boyle Jr. Jan 1995

Annual Survey Of Virginia Law: Civil Practice And Procedure, Donald P. Boyle Jr.

University of Richmond Law Review

In Burroughs v. Palumbo, defendant was served with process through the Secretary of the Commonwealth. The grounds of defense was due to be filed on September 22, 1994. On September 29, 1994, defendant filed the notice of removal in federal court. On September 30, 1994, the state court entered default judgment against defendant. Later that same day, defendant filed the notice of removal with the state court. Between the time that defendant filed the notice of removal in federal court and the time that he filed it with the state court, both courts had jurisdiction over the case; therefore the ...


Changes In The Clean Water Act Since Kepone: Would They Have Made A Difference?, Wiliam Goldfarb Jan 1995

Changes In The Clean Water Act Since Kepone: Would They Have Made A Difference?, Wiliam Goldfarb

University of Richmond Law Review

In the anti-regulatory climate that currently pervades the American political scene, it is important to emphasize the palpable and significant accomplishments of environmental regulation. One measure of the success of environmental law during the past twenty-five years is that long-term, relatively localized environmental contamination-such as the pollution of the lower James River by Kepone between 1966 and 1975-probably can no longer occur in the United States. Major environmental statutes, enacted during the decade between 1976 and 1986, have precluded continuing environmental abuses of this scope and magnitude. The Resource Conservation and Recovery Act (RCRA), enacted in 1976, establishes a compre- ...


University Of Richmond Law Review Jan 1995

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.


Participatory Government And Communal Property: Two Radical Concepts In The Virginia Charter Of 1606, Finbarr Mccarthy Jan 1995

Participatory Government And Communal Property: Two Radical Concepts In The Virginia Charter Of 1606, Finbarr Mccarthy

University of Richmond Law Review

On April 26, 1607, about one hundred English men landed on the Atlantic shore of North America near Jamestown, Virginia. There they established the foundation for what would become the first permanent English colony in America. These men, and the men and women who followed in the next decade, left as their legacy a society that combined a rudimentary form of popular government with a system of private property. But these settlers established that society only after conducting seventeen turbulent years of social experiments. Had those experiments conducted in that Virginia swamp turned out differently, we might now live under ...


Annual Survey Of Virginia Law: Business And Corporate Law, Katherine Ennis Wychulis, David S. Haddock Ii Jan 1995

Annual Survey Of Virginia Law: Business And Corporate Law, Katherine Ennis Wychulis, David S. Haddock Ii

University of Richmond Law Review

This article reviews recent developments in the law affecting Virginia businesses and corporations. Part II discusses recent judicial decisions in Virginia courts involving businesses and corporations. Part III discusses several acts of the 1995 session of the Virginia General Assembly that amend Virginia's corporate, partnership, limited liability company and securities act statutes.


"Dancing In The Courthouse": The First Amendment Right Of Access Opens A New Round, Eugene Cerruti Jan 1995

"Dancing In The Courthouse": The First Amendment Right Of Access Opens A New Round, Eugene Cerruti

University of Richmond Law Review

Shortly after World War II, concern mounted over the government's ability and tendency to institutionalize secrecy in government. The initial concern was with the anti-communist sleuthing of various legislative bodies which dramatized the power of secretly held information to control the public agenda of both domestic and foreign policy debate. From this emerged the call for a more "open" government and the political claim that the electorate had a "right to know"' the information acquired and relied upon by government officials. For the press in particular, "access" increasingly became the watchword, the icon, of the new era. The mounting ...


Annual Survey Of Virginia Law: Criminal Law And Procedure, Cullen D. Seltzer Jan 1995

Annual Survey Of Virginia Law: Criminal Law And Procedure, Cullen D. Seltzer

University of Richmond Law Review

The past year has been an active one for the Virginia courts and General Assembly in the areas of criminal law and procedure. Developments include cases regarding the allowance of expert assistance to indigent criminal defendants and a defendant's right to a new trial based on after-discovered evidence. Driving under the influence [DUI] defendants are no longer entitled to their choice of a blood or breath test as a function of the implied consent law, and for felons convicted of committing an offense after December 31, 1994, parole is no longer an option. This article surveys these and other ...


Liberalism And The Possibility Of Multicultural Constitutionalism: The Distinction Between Deliberative And Dedicated Cultures, Robert Justin Lipkin Jan 1995

Liberalism And The Possibility Of Multicultural Constitutionalism: The Distinction Between Deliberative And Dedicated Cultures, Robert Justin Lipkin

University of Richmond Law Review

Liberalism and multicultural constitutionalism are on a collision course destined to become the next great battlefield in the unfolding odyssey of American constitutional law. The impending battle will define the scope and limits of liberal constitutionalism and its role as the model for democracy around the world. While turbulence between liberalism and multicultural constitutionalism occurs across a panoply of controversies, the eye of the storm focuses on one central question: Can liberalism tolerate non-liberal cultures? This article explores the hypothesis that liberalism's deep structure precludes it from explaining and justifying the toleration of non-liberal cultures. If so, this hypothesis ...


Expert Witness Testimony: Back To The Future, L. Timothy Perrin Jan 1995

Expert Witness Testimony: Back To The Future, L. Timothy Perrin

University of Richmond Law Review

Expert witnesses are at once detested and treasured. The scorn is significant because of the increasingly prominent role experts play in both civil and criminal litigation. Experts are seen as mercenaries, prostitutes or hired guns, witnesses devoid of principle who sell their opinions to the highest bidder. Experts are not impartial professionals who explain difficult concepts to the trier of fact. Rather, experts become advocates for the side who hired them. The consequences of this role change are not desirable: experts testify to matters beyond their expertise, render opinions that are unreliable, speculative or outside what the experts would be ...


Federal Minimums: Insufficient To Save The Bay, Roy A. Hoagland, Jean G. Watts Jan 1995

Federal Minimums: Insufficient To Save The Bay, Roy A. Hoagland, Jean G. Watts

University of Richmond Law Review

In this era of deregulation, streamlining, and government reform, the voices of state government often ring out the philosophy of "no stricter than federal law" when discussing environmental initiatives. The argument that federal minimums can serve as a minimalistic, one-size-fits-all framework for environmental protection not only contradicts the same voices' arguments for flexibility and site-specific solutions, but also ignores the reality that federal minimums alone simply cannot and will not restore our waters, conserve our land, or protect our air.


University Of Richmond Law Review Jan 1995

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.


The Dead Hand Loses Its Grip In Virginia: A New Rule For Trust Amendment And Termination?, Jessica L. Lacey Jan 1995

The Dead Hand Loses Its Grip In Virginia: A New Rule For Trust Amendment And Termination?, Jessica L. Lacey

University of Richmond Law Review

The majority rule in America for the amendment and termination of trusts was first adopted in Claflin v. Claflin and came to be known as the Claflin Doctrine. This rule states that "a testator has a right to dispose of his own property with such restrictions and limitations, not repugnant to law, as he sees fit, and that his intentions ought to be carried out, unless they contravene some positive rule of law, or are against public policy." In effect, the Claflin Doctrine is codified in the Restatement (Second) of Trusts, which states that trust beneficiaries cannot compel a trust ...


Annual Survey Of Virginia Law: Employment Law, Paul G. Beers Jan 1995

Annual Survey Of Virginia Law: Employment Law, Paul G. Beers

University of Richmond Law Review

This article focuses upon Virginia employment law between June 1994 and May 1995. Special topics, such as public sector employment and unemployment compensation, lie outside the scope of this article, as do developments under federal statutes.


University Of Richmond Law Review Jan 1995

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.


Federal Minimums: Insufficient To Save The Bay, Roy A. Hoagland, Jean G. Watts Jan 1995

Federal Minimums: Insufficient To Save The Bay, Roy A. Hoagland, Jean G. Watts

University of Richmond Law Review

In this era of deregulation, streamlining, and government reform, the voices of state government often ring out the philosophy of "no stricter than federal law" when discussing environmental initiatives. The argument that federal minimums can serve as a minimalistic, one-size-fits-all framework for environmental protection not only contradicts the same voices' arguments for flexibility and site-specific solutions, but also ignores the reality that federal minimums alone simply cannot and will not restore our waters, conserve our land, or protect our air.


Annual Survey Of Virginia Law: Campaign And Election Law, Claudia T. Salomon Jan 1995

Annual Survey Of Virginia Law: Campaign And Election Law, Claudia T. Salomon

University of Richmond Law Review

This is the first year the University of Richmond Law Review has surveyed recent developments in Virginia's campaign and election laws. Thus, this article provides a general overview of the laws governing state and local candidates concerning (1) qualifications for candidacy, (2) campaign finance, and (3) campaign and election misconduct.


Annual Survey Of Virginia Law: Environmental Law, Brian L. Buniva, James R. Kibler Jr. Jan 1995

Annual Survey Of Virginia Law: Environmental Law, Brian L. Buniva, James R. Kibler Jr.

University of Richmond Law Review

Since publication of the 1994 Annual Survey of Virginia Law' several significant judicial decisions, state statutes and state regulatory initiatives have demonstrated the increasing nexus between federal and Virginia environmental law. The federal and state courts have helped define the interrelationships between environmental law, tort law, land use law, and procedural/jurisdictional issues related to environmental law.


Facing A Time Of Counter-Revolution-- The Kepone Incident And A Review Of First Principles, Zygmunt J.B. Plater Jan 1995

Facing A Time Of Counter-Revolution-- The Kepone Incident And A Review Of First Principles, Zygmunt J.B. Plater

University of Richmond Law Review

The Kepone contamination episode of 1966-75 was a milestone that focused an entire nation's attention on environmental hazards and our need to do better in recognizing and avoiding them. We have learned a great deal from that unfortunate story. The evolution of American environmental law since the Kepone debacle has repeatedly used the incident as a touchstone in identifying environmental pollution's causes, effects, and potential solutions.


University Of Richmond Law Review Jan 1995

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.


Annual Survey Of Virginia Law: Wills, Trusts, And Estates, J. Rodney Johnson Jan 1995

Annual Survey Of Virginia Law: Wills, Trusts, And Estates, J. Rodney Johnson

University of Richmond Law Review

The 1995 Session of the General Assembly enacted legislation dealing with wills, trusts, and estates that added, amended, or repealed a number of sections of the Code of Virginia. In addition to this legislation, there were five Supreme Court of Virginia opinions and one Fourth Circuit opinion in the year ending June 1, 1995 that involved issues of interest to both the general practitioner and the specialist in wills, trusts, and estates. This article analyzes each of these legislative and judicial developments.


Annual Survey Of Virginia Law: Workers' Compensation, Wood W. Lay, Bruin S. Richardson Iii Jan 1995

Annual Survey Of Virginia Law: Workers' Compensation, Wood W. Lay, Bruin S. Richardson Iii

University of Richmond Law Review

The Annual Survey last addressed Virginia Workers' Compensation law in 1992. The Virginia Workers' Compensation Commission [the Commission] decides almost 1500 decisions a year and, on average, 300 of these are appealed to the Court of Appeals of Virginia. Consequently, this article discusses only the most significant developments in workers' compensation between January 1993 and June 1995. In doing so, the article attempts to highlight areas of controversy and inconsistency.


Foreword, John M. Holloway Iii Jan 1995

Foreword, John M. Holloway Iii

University of Richmond Law Review

At the question and answer session following the Panel that examined the Kepone litigation twenty years later, Judge Merhige posed the "question that no one has asked... did [I do] the right thing?" The settlement that created the Virginia Environmental Endowment with the contribution from Allied Chemical remains both controversial and innovative today. This Symposium is a product of that settlement and it was created with the hope that we, as citizens and policy-makers, will continue to ask ourselves Judge Merhige's question. We also hope that the State of the Chesapeake Bay Symposium and that the annual Robert R ...


Lesnick V. Hollingsworth & Vose Co. - The Pure Stream Of Commerce No Longer Flows Through The Fourth Circuit, Lori Elizabeth Jones Jan 1995

Lesnick V. Hollingsworth & Vose Co. - The Pure Stream Of Commerce No Longer Flows Through The Fourth Circuit, Lori Elizabeth Jones

University of Richmond Law Review

Personal jurisdiction over nonresidents in a forum state has been problematic in our federal system for quite some time. Today, in order to establish personal jurisdiction over a nonresident defendant, the nonresident must have minimum contacts with the forum state. While the test may be stated succinctly, determining whether a person or corporation has minimum contacts with the forum state is an extremely complex process, as seen in the line of personal jurisdiction cases following International Shoe Co. v. Washington.


Clinging To History: The Supreme Court (Mis)Interprets Federal Rule Of Evidence 801(D)(1)(B) As Containing A Temporal Requirement, Christopher A. Jones Jan 1995

Clinging To History: The Supreme Court (Mis)Interprets Federal Rule Of Evidence 801(D)(1)(B) As Containing A Temporal Requirement, Christopher A. Jones

University of Richmond Law Review

The adoption of the Federal Rules of Evidence (the Rules) resulted in a more liberal standard for the admission and use of various forms of evidence. For example, the Rules altered the definition of "relevant evidence" increasing the scope of evidence that can be presented to a jury. Also, the Rules per- mit prior inconsistent statements to be admitted as substantive evidence rather than for impeachment purposes only. The Advisory Committee enunciated these changes, and other changes resulting from the adoption of the Rules, in their notes accompanying the Rules.


Using Experience To Improve Superfund Remedy Selection, Robert H. Abrams Jan 1995

Using Experience To Improve Superfund Remedy Selection, Robert H. Abrams

University of Richmond Law Review

The Comprehensive Environmental Response, Cleanup, and Liability Act (CERCLA, a.k.a. "Superfund")' has earned its share of criticism, most volubly for the expense and unfairness of its cost allocation scheme, but also for its remedy selection process. In deciding how to remediate sites, CERCLA employs a lengthy formal process that, on average, takes over eight years from site awareness to the selection of a remedy. Less damningly, perhaps, only the last fifty-eight months of that time elapses after the site is scored as one serious enough to be placed on the National Priorities List as a site eligible to ...