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'It Wasn't Supposed To Be Easy': What The Founders Originally Intended For The Senate's 'Advice And Consent' Role For Supreme Court Confirmation Processes, Michael W. Wilt

Channels: Where Disciplines Meet

The Founders exerted significant energy and passion in formulating the Appointments Clause, which greatly impacts the role of the Senate and the President in appointing Supreme Court Justices. The Founders, through their understanding of human nature, devised the power to be both a check by the U.S. Senate on the President's nomination, and a concurrent power through joint appointment authority. The Founders initially adopted the Senate election mode via state legislatures as a means of insulation from majoritarian passions of the people too. This paper seeks to understand the Founders envisioning for the Senate's 'Advice and Consent' role as it …

Justice Scalia Got It Right, But For The Wrong Reasons: Scalia’S Recognition Of The Supreme Court’S “Southern Exception” In U.S. Constitutional Jurisprudence And The Connection Of “Southern Exceptionalism” To “American Exceptionalism", James D. Wilets

University of Miami Law Review

The late Justice Scalia has repeatedly and sardonically noted that the Supreme Court has discounted the views of Southern states in determining whether there is a consensus among the states with regards to a Constitutional norm. This Article has termed that Supreme Court position as “Southern Exception” and can be viewed as an effort by some Justices to address the unique social, economic, religious and cultural traditions in the South engendered by its unique" and “exceptional” history. This Article will also explore how this "Southern Exception" affected American jurisprudence to the point of rendering it "exceptional" from much of the …

Brett Kavanaugh Vs. The Exonerated Central Park Five: Exposing The President's "Presumption Of Innocence" Double Standard, Sofia Yakren

Journal of Civil Rights and Economic Development

(Excerpt)

In the service of Justice Brett Kavanaugh’s confirmation to the United States Supreme Court, the President of the United States (and Republican Senators) both misappropriated and further eroded the already compromised concepts of due process and presumption of innocence. This Essay uses the prominent “Central Park Five” case in which five teenagers of color were wrongly convicted of a white woman’s widely-publicized beating and rape to expose the President’s disparate use of the presumption along race and status lines. This narrative is consistent with larger systemic inequities that leave poor black and brown criminal defendants less likely to benefit …

Hearing Women: From Professor Hill To Dr. Ford, Stephanie M. Wildman

Journal of Civil Rights and Economic Development

(Excerpt)

One of the recent traumas, another skirmish in today’s civilian conflict over what kind of society America will be, arose from Dr. Christine Blasey Ford’s testimony about sexual assault she had endured. Her composed, measured statement during the nowJustice Brett Kavanaugh confirmation hearing exemplified bravery in the face of adversity. The Senate and the nation’s response to her testimony underscored the high stakes in the ongoing ideological conflict, beyond the obvious prize of a Supreme Court seat. Constituents in the current ideological battle had differing reactions to Ford’s testimony and to this hearing, reflecting a range of views about …

"I Still Like Smear": The Senate Judiciary Committee's Obstructing Politics Surrounding The Kavanaugh Hearing And A Solution To The Chaos That Ensued, Frank J. Tantone

Journal of Civil Rights and Economic Development

(Excerpt)

The incredible events and raucous behavior by members of the Committee that colored Justice Kavanaugh’s confirmation process rose to a level of intensity and virulence never seen before in this specific area of American government and politics. Nevertheless, the most analogous situation that somewhat closely reflects the events that transpired in 2018 occurred seventeen years earlier. President George H.W. Bush, on July 1, 1991, nominated then District of Columbia Circuit Court Judge, Clarence Thomas, to replace Justice Thurgood Marshall on the Supreme Court. Thomas’s confirmation hearing was also opposed from the outset but by civil rights and feminist organizations …

How The Boogeyman Saved Brett Kavanaugh, Cathren Page

Journal of Civil Rights and Economic Development

(Excerpt)

We love to hate these boogeymen. When the societal narrative creates these invisible boogeymen, people can pour their rage against sexual abuse into these faceless antagonists. At the same time, the enraged survivors and protectors avoid conflicts with family, neighbors, colleagues, and social acquaintances who might actually commit or enable sexual abuse. We can dodge sticky questions regarding how a churchgoer, a judge, or an Ivy Leaguer could have committed a heinous act. The survivors can avoid all the victim-blaming backlash, threats of violence, and invalidation that accompanies reporting a sexual offense. Moreover, having less power on their own, …

The Master's Tools Will Never Dismantle The Master's House: Kavanaugh's Confirmation Hearing And The Perils Of Progressive Punitivism, Hadar Aviram

Journal of Civil Rights and Economic Development

(Excerpt)

This essay proceeds in four parts. In Part I, I problematize the idea of the accused’s demeanor as evidence of guilt, remorse, or entitlement, arguing that we tend to overestimate our ability to deduce internal states of mind from people’s behavior and expressions. Part II assesses the potential (or lack thereof) of public performances of reckoning to produce a valuable expression of remorse, discussing the value of contingent apologies. Part III expands the framework to examine the way our politically fractured field responds to partisan efforts to excoriate culprits, arguing that “starting a national conversation” on the basis of …

Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson

Washington and Lee Law Review

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is …

Table Of Contents

University of Richmond Law Review

No abstract provided.

Employment Law, Bret G. Daniel, Erin B. Edwards

University of Richmond Law Review

Virginia has historically been regarded as an employer-friendly jurisdiction. However, in recent years, the Fourth Circuit Court of Appeals has issued an increasing number of opinions that tend to favor employees. With a state legislature largely reluctant to interfere in the employer-employee relationship, developments in employment law generally occur via Fourth Circuit jurisprudence. Given the predominance of federal employment law in Virginia, the following discussion regarding developments in this practice area focuses less on state statutes and courts, and more on decisions handed down from the federal bench. This Article provides an update on recent developments in employment law in …

"In The Little World": Breaking Virginia's Foster-Care-To-Prison Pipeline Using Restorative Justice, Joanna R. Steele

University of Richmond Law Review

This Comment proposes that integrating restorative justice conferencing into Virginia’s foster care system can help break its foster-care-to-prison pipeline. Part I details Virginia’s foster care system and the foster-care-to-prison pipeline. Part II reviews and explains how restorative conferencing in Glenmona, Northern Ireland’s equivalent foster care system correlates strongly with decreased incarceration of foster children. Part III outlines how Virginia can implement the same restorative conferencing in its foster care system and pioneer a program that could affect its foster-care-to-prison pipeline.

The Downfall Of "Incumbent Protection": Case Study And Implications, Jeffrey R. Adams, Lucas I. Pangle

University of Richmond Law Review

On January 9, 2019, the United States Court of Appeals for the Fourth Circuit struck down Virginia Code section 24.2-509— Virginia’s long-standing “Incumbent Protection Act” (or the “Act”). The Incumbent Protection Act was the only statute of its kind, and had endured criticism by grassroots commentators. Yet, the Incumbent Protection Act had long evaded scrutiny in the courtroom. Indeed, the Incumbent Protection Act’s courtroom history is labyrinthine, replete with interesting and significant commentaries on party rights, standing, and public policy preference for primaries. In fact, before its eventual demise, it had been implicated in several lawsuits bringing constitutional challenges to …

Taxation, Craig D. Bell, Michael H. Brady

University of Richmond Law Review

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (the “Tax Department”) and the Attorney General of Virginia over the past year. Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, recordation taxes, and administrative local tax procedures. The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia …

An Analysis Of Intentional Infliction Of Emotional Distress Claims In The Virginia Workplace, Stephen Allred

University of Richmond Law Review

This Article first traces the development of the tort of intentional infliction of emotional distress as applied to the workplace in the Commonwealth of Virginia in Part I, and offers some observations about the significant hurdles a plaintiff may face in trying to successfully hold an employer accountable for conduct that many in our society would deem unacceptable. After reviewing the evolution of the doctrine since it was first recognized in Virginia nearly fifty years ago in Part II, Part III returns to the incident described above involving Linda Bodewig and her employer, and offers an analysis of how her …

Preface, Matthew L. Pangle

University of Richmond Law Review

The University of Richmond Law Review is proud to present the thirty-fourth issue of the Annual Survey of Virginia Law. Since 1985, the Annual Survey has striven to provide a comprehensive resource detailing recent legislative, judicial, and administrative changes in Virginia. Today, the Annual Survey is the most widely read publication of the University of Richmond Law Review, reaching lawyers, judges, legislators, and students in every corner of the Commonwealth. In continuing the Annual Survey tradition, we have selected pieces we believe are timely, compelling, and useful to staying informed of relevant legal and social issues.

In Memoriam: Michael Morchower, John W. Luxton

University of Richmond Law Review

October of 1974 brought an offer of employment to work for Michael Morchower as his first legal associate. We met in my last semester of law school when I did an internship with Robert W. Duling of the Richmond Commonwealth’s Attorney Office. Contested cases I observed between the two were spirited. When the case was over, however, the two future legends of the Richmond legal community would congratulate one another in a sincere and thoughtful manner.

Civil Practice And Procedure, Christopher S. Dadak

University of Richmond Law Review

This Article’s focus and analysis encompasses the past year of Supreme Court of Virginia opinions, legislation, and revisions to the Rules of the Supreme Court of Virginia affecting Virginia civil procedure.1 This Article is not meant to be all-encompassing, but does endeavor to capture the highlights of changes or analysis regarding Virginia civil procedure. The opinions discussed throughout this Article do not all reflect changes in Virginia jurisprudence on civil procedure, but also address clarifications or reminders from the court on certain issues it has deemed worthy of addressing (and that practitioners continue to raise). The Article first addresses opinions …

Criminal Law And Procedure, Rachel L. Yates, John I. Jones Iv, Brittany Dunn-Pirio

University of Richmond Law Review

This Article surveys recent developments in criminal procedure and law in Virginia. Because of space limitations, the authors have limited their discussion to the most significant appellate decisions and legislation.

Corporate And Business Law, Laurence V. Parker Jr.

University of Richmond Law Review

This year there were a number of significant legislative changes to the Virginia Stock Corporation Act (“VSCA”) and the Virginia Limited Liability Company Act. Part I discusses certain statutory changes related to Virginia Corporations. Part II summarizes the changes to VSCA, including changes related to ratification of defective corporate acts, appraisal rights in asset sale transactions, multiple changes related to interspecies transactions, improving and making the effect of merger, domestication, and conversion language more uniform, refining the process for abandoning fundamental transactions, regulating the second step merger following a tender offer, modifying the corporate opportunity doctrine, allowing for a court …

Wills, Trusts, And Estates, J. William Gray Jr., Katherine E. Ramsey

University of Richmond Law Review

The 2019 Virginia General Assembly did not enact any major new legislation, but it did pass several significant amendments. Among the most useful was an amendment to the Virginia Uniform Transfers to Minors Act which extended the maximum age for custodianships from twenty-one to twenty-five. The legislature also decided to cease imposing income taxes on estates and trusts whose sole connection to the Commonwealth is that they are being administered here. It responded to two recent court cases involving the required execution formalities for leases and the right to award attorneys’ fees in actions involving an agent’s breach of fiduciary …