Law Commons^™

Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass

Law Faculty Publications

The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest …

In Memoriam: Robert R. Merhige, Jr., Ronald J. Bacigal

Law Faculty Publications

It is difficult to write about Judge Merhige in an academic journal. His greatness lay not in formulating abstract legal doctrine, but in applying the law to real life situations. When I began researching his biography in 1986, the most pleasant part of the process was personal interviews with the Judge spanning two and a half years and filling some fifty audio tapes. Unfortunately, I was never able to capture his humanity in print and may have done him a disservice by writing his biography the way a law professor does-focusing on the intellectual aspects of his famous cases, rather …

Once And Future Copyright, James Gibson

Law Faculty Publications

Copyright is like a well-meaning but ultimately bothersome friend, eager to help but nearly impossible to get rid of. It attaches indiscriminately to the simplest acts of expression, without regard for whether the author needs or wants its protection. This automatic propertization made sense in the print era, when mass distribution of information was an expensive process rarely undertaken by those with no plans to profit from their creativity. It makes little sense today. The following article shows that copyright's overly solicitous nature is the source of several seemingly unrelated and intractable problems - e.g., closed code, copyright as censorship, …

Google's (Fair) Use Of Copyrighted Work, James Gibson

Law Faculty Publications

Letters to the Editor on Google's (Fair) Use of Copyrighted Work

From The Treasurer: Aall Current Reserve Fund Restored, Joyce Manna Janto

Law Faculty Publications

This article reports on the fiscal health of the American Association of Law Libraries in 2005, including a comparative statement of revenues and expenses.

The Supreme Court: A Unique Institution, John Paul Jones

Law Faculty Publications

Established by the U.S. Constitution in 1789, the Supreme Court is both the final arbiter of significant legal cases and the prevailing authority on the constitutionality of individual laws. While the Constitution specifies the Court's original jurisdiction, it does not spell out how the Court should conduct its business, or even the number of justices who should serve on the Court or what their qualifications should be. Thus, the Founding Fathers provided a High Court for the nation with the adaptability to respond to the needs of its citizens.

The Limits Of Multiple Rights And Remedies: A Call For Revisiting The Law Of The Workplace, Ann C. Hodges

Law Faculty Publications

The IBM decision illustrates two major problems with current workplace regulation. First, there are two distinct but overlapping systems - the individual and the collective - which often collide. The result is, at best, an imperfect realization of rights under both systems, and perhaps more often, the sacrifice of rights under one to rights under the other. Second, the multitude of forums available for litigation results in multiple claims arising out of the same action, as well as tribunals deciding issues outside their expertise. After analyzing the IBM decision, I will consider the costs and benefits of the current regulatory …

The Lost Jurisprudence Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

It is widely assumed that the Ninth Amendment languished in constitutional obscurity until it was resurrected in Griswold v. Connecticut by Justice Arthur Goldberg. In fact, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation's history, including the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the constitutionality of the New Deal, and the legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment. The second of two articles addressing the Lost History of the Ninth Amendment, The Lost …

The Prerogative Of The Sovereign In Virginia: Royal Law In A Republic, William Hamilton Bryson

Law Faculty Publications

The history of the prerogative of the sovereign, the lex prerogativa, in Anglo American jurisprudence is long and complicated. It has exercised the minds of jurists and political philosophers for many centuries, and there has not been universal agreement as to its nature and scope. The purpose of this essay, as prompted by the two quotations just given, is to describe the prerogative law and trace its development from medieval England to modem Virginia.

Recapturing Summary Adjudication Principles In Disparate Treatment Cases, Henry L. Chambers, Jr.

Law Faculty Publications

In the last decade, just as Title VII jury trials have become common, the Supreme Court has given judges more latitude to dispose of both weak and fairly strong disparate treatment cases through summary adjudication, even when Title VII liability is plausible pursuant to the McDonnell Douglas test. 11 This article explains how the Court's disparate treatment jurisprudence results in the abandonment of the summary adjudication principle that weak but winnable cases should be tried before a jury and suggests that the Court correct its mistake. Part I of this article discusses the Supreme Court's summary adjudication doctrine. Part II …

Bork Was The Beginning: Constitutional Moralism And The Politics Of Judicial Selection, Gary L. Mcdowell

Law Faculty Publications

On October 23, 1987, the United States Senate committed what many considered then-and what many still consider today-to be an unforgivable political and constitutional sin. Wielding its power to advise and consent on nominations to the Supreme Court of the United States, the upper house voted 58-42 not to confirm Judge Robert H. Bork. The vote, which was the largest margin of defeat in history for a nominee to the Supreme Court, concluded one of the most tumultuous political battles in the history of the republic, a battle that would transform the process of judicial selection for years to come.

A Time To Preserve: A Call For Formal Private-Party Rights In Perpetual Conservation Easements, Carol N. Brown

Law Faculty Publications

For more than a century, conservation easements have been used in the United States to maintain open space or protect the environment. Such easements produce a public good. They increase the amount of protected landscapes by preserving property encumbered by easements from private development or consumption while simultaneously allowing grantors the flexibility to negotiate the retention of development rights tailored to meet the grantors' needs. My thesis is that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief to enforce conservation easements and to sue for damages when they …

Casting Lots: The Illusion Of Justice And Accountability In Property Allocation, Carol N. Brown

Law Faculty Publications

When does resorting to random selection by casting lots produce a just distribution or allocation of property? Some argue generally in support of casting lots, asserting that it is a viable substitute for equal distribution of property. Others argue against casting lots, contending that it undermines distributive justice. This article considers instances of casting lots from the nineteenth century to the present and explains why the latter view is the better view.

The Antelope is one of the earliest United States Supreme Court cases addressing distribution of property by casting lots. It chronicles a dispute over the allocation of captured …

Entrance Ramps, Tolls, And Express Lanes – Proposals For Decreasing Traffic Congestion In The Patent Office, Kristen Jakobsen Osenga

Law Faculty Publications

This Article proposes implementing a multitier patent system by the creation of two additional "roads" or routes that a patent application may follow. Because many patents are not sought with the intention of pursuing the traditional patent reward of commercialization or profit through access control, that is, the exercise of the limited patent monopoly, there is no reason for every single application to follow the current route. The creation of an auxiliary, or "side road," would decrease crowding on the current patent grant highway while still allowing the nontraditional applications to enter and traverse the patent grant system with different …

The Environmental Responsibility Of The Regionalizing Electric Utility Industry, Joel B. Eisen

Law Faculty Publications

In this Article, I will address environmental issues in the context of our rapidly evolving understanding of "restructuring." The market for electricity is fast becoming a series of regional marketplaces for wholesale transactions, operating on bid-based systems that move power at the lowest cost. There are plenty of states where power is still delivered as it has been for decades: by "bundled" service provided by vertically integrated utilities. However, the trend is toward regionalization, where independent entities control the transmission grid and play a major role in determining how power is delivered. These market participants, confusingly, have been known by …

Regulatory Linearity, Commerce Clause Brinksmanship, And Retrenchment In Electric Utility Deregulation, Joel B. Eisen

Law Faculty Publications

The point of this Article is that if an agency has reached this point in the lifetime of its reinvention efforts by being "linear," then the experiment should end. In the case of restructuring, that is not the case, but two aspects of the situation make it exquisitely difficult to see this: an agency that is trying the same ideas repeatedly (FERC) and a complex set of variables that has hampered restructuring activity. Through this fog, the final point to be made is that if moving beyond the current stasis requires change, this should be contemplated. This industry is famously …

The Blackout Of 2003: What Is Next?, Joel B. Eisen

Law Faculty Publications

The blackout of August 2003 was a massive dislocation of American life, with millions of people in eight states and Canada losing power and a cost estimated in billions of dollars. As many as fifty million people were affected by the blackout. While the ultimate cause of the blackout is still being investigated, the implications for national policy may not be fully known for decades. The blackout was a wake up call and a watershed event that calls for reevaluation of just about every facet of the electric utility industry. We tend to think of a "wakeup call" as something …

Real-World And Academic Questions About Nonmonetary Obligations Under The 2005 Version Of 365(B), David G. Epstein

Law Faculty Publications

McLachlan, Countryman, Westbrook. More than most areas of bankruptcy law, the bankruptcy law of leases and contracts has been influenced by law professors. McLachlan is generally credited for inventing the bankruptcy law of leases and executory contracts; specifically, for drafting section 70(b) of the Bankruptcy Act-the predecessor of section 365. Countryman's law review articles based on work he did for the Commission to Study the Bankruptcy Laws of the United States led to the "Countryman definition" of "executory contracts." Additionally, Westbrook's article urging the elimination of the term "executory contract" and a clarification of the consequences of rejection shaped the …

Recoupment: Apples, Oranges And Fruit Basket Turnover, David G. Epstein

Law Faculty Publications

fiscal years and deducted the overpayment from its payments to H during that year. The fiscal year 2000 was also the year that H filed for Chapter 11. H filed an adversary proceeding against US contending that the deductions within four months before H's bankruptcy filing were voidable preferential transfers and that US's deductions after the bankruptcy filing were in violation of the automatic stay. The bankruptcy judge, the district court judge, and a unanimous appellate court panel looked to the law of recoupment to hold that US's reduction of payments was neither a preferential transfer nor a violation of …

Does The Efficient Market Theory Help Us Do Justice In A Time Of Madness, William O. Fisher

Law Faculty Publications

This Article questions how well the efficient market theory, as applied by event studies, works in cases originating during the Internet, high-tech, and telecommunications bubble of 1998 to 2001. In doing so, the Article discusses technical and theoretical challenges to the efficient market theory. Principally, however, this Article argues that the use of the efficient market theory-and relatedly the event study methodology-is inappropriate in bubble cases for normative reasons. The normative connection between the efficient market theory-applied through event studies-and the lOb-5 elements-reliance, materiality, loss causation, and damages-presupposes that the market acts rationally. Market professionals supposedly impose that rationality through …

Health Courts: Panacea Or Palliative?, Carl W. Tobias

Law Faculty Publications

Professor Tobias weighs the pros and cons of legislation proposed in several states that would create "health courts" for the handling of medical malpractice cases.

Johnson V. Degrandy, Henry L. Chambers, Jr.

Law Faculty Publications

512 U.S. 997 (1994), argued 4 OCT. 1993, decided 30 June 1994 by vote of 7 to 2 Souter for the Court, O'Connor concurring, Kennedy concurring in part and concurring in the judgment, Thomas and Scalia in dissent.

Marriage And Some Troubling Issues With No-Fault Divorce, Peter N. Swisher

Law Faculty Publications

The purpose of this Article is to challenge these erroneous assumptions, that fault is "no longer an issue" in modem American divorce law, and that a spouse on divorce should not be compensated for his or her non-economic contributions to the marriage and to the well-being of the family.

Patent Claim Interpretation And Information Costs, Christopher A. Cotropia

Law Faculty Publications

The concept of invention is crucial to patent law. Inventions of patentable quality are what the patent system is trying to encourage. In order to provide this incentive to produce such inventions, the patent system must provide protection for the invention. The problem the patent system runs into is that inventions are dijjicult to define-the dijjiculty stemming in part from the intangible nature of inventions. As a result, patent law encounters an information cost problem. Everyone in the patent system needs information about the invention, but the invention's intangibleness makes this information costly to produce, collect, and comprehend. Patent law …

Wills, Trusts And Estates (Annual Survey Of Virginia Law, 2004-05), J. Rodney Johnson

Law Faculty Publications

The General Assembly enacted legislation dealing with wills, trusts, and estates that added or amended a number of sections of the Virginia Code in its 2005 Session. In addition, there were two opinions from the Supreme Court of Virginia that presented issues of interest to the general practitioner as well as to the specialist in wills, trusts, and estates during the period covered by this review. This article reports on all of these legislative and judicial developments.

Implications Of A Uniracial Worldview: Race And Rights In A New Era, Jonathan K. Stubbs

Law Faculty Publications

This article begins by asking, "What is Race: Some Modem Western Perspectives?" Section I surveys race from various vantage points, including views associated with social and natural scientists, jurists, and members of the general public. In short, Section I grapples with what we currently mean when we use the term race.

Many people, especially westerners, believe that the human family consists of multiple races. Such thinking flows from and reinforces multi-racial worldviews. Thus, Section II asks: "What Does a Multi-racial Worldview Look Like?" Here, using graphic symbols we attempt to communicate some sense of what a multi- racial perspective involves. …

Balancing Security And Human Rights: Post 9/11 Reactions In United States And Europe, Chiara Giorgetti

Law Faculty Publications

The acts of 11 September 2001 demonstrated how vulnerable civilians are; in any part of the world, to terrorist attacks. This awareness led to a determined response by the international community to fight international terrorism iri all its forms. As governments and international organizations alike reevaluated the effectiveness and appropriateness of their counter-terrorist measures, the challenge emerged of conducting the fight against terrorism while respecting human rights and civil liberties. In fact, the wide consensus that actions are necessary to confront terrorism does not undermine the necessity to balance human rights considerations and preserve the democratic process.

As portrayed throughout …

Building Healthy Cities: Legal Frameworks And Considerations, Wendy Collins Perdue

Law Faculty Publications

This chapter will explore the range of laws and government policies that have shaped the physical structure of U.S. cities and thereby impacted the health of those cities' residents. This analysis will highlight the many, apparently "private" decisions that have been impacted by government policies. Though some of the laws, policies, prohibitions, and incentives have been formulated explicitly to take into account health considerations, others have unintended effects - both good and bad - on the health of urban populations.

A Legal Framework For Preventing Cardiovascular Diseases, Wendy Collins Perdue

Law Faculty Publications

Cardiovascular diseases are major contributors to death, disability, disparities, and reduced quality of life in the United States. Successful prevention and control of these diseases requires a comprehensive approach applied across multiple public health settings and in all life stages. Individual lifestyle and behavior change, as well as the broader social, environmental, and policy changes that enable healthy lifestyles, are necessary. Legal strategies can be powerful tools in this endeavor. This review presents seven such strategies applicable at the federal, state, and local levels that can be employed by healthcare providers, public health practitioners, legislators, and other policymakers. They include …

Cool Data On A Hot Issue: Empirical Evidence That A Law School Bar Support Program Enhances Bar Performance, Emmeline Paulette Reeves

Law Faculty Publications

Many law schools have become increasingly concerned about the bar passages rates of their graduates. Low bar passage rates may negatively impact student morale, accreditation, and future admissions. Law schools are also concerned about the emotional and financial impact on their graduates of failing the bar examination. What, if anything, can and should law schools do to improve their graduates' chances of passing the bar examination?

Many law schools are deciding that they should do something. A significant number of law schools are now offering programs "specifically designed" to improve their graduates' performance on the bar examination. And these schools …