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Select Criminal Law And Procedure Cases From The U.S. Supreme Court's 2018-2019 Term, Eve Brensike Primus, Kristin Froehle

Articles

Although the 2018-19 Term at the Supreme Court did not include any blockbuster rulings like Carpenter v. United States, the Court issued a number of significant criminal law and procedure rulings. It addressed warrantless blood-alcohol testing, the dual-sovereignty doctrine, the right to trial by jury, ineffective assistance of trial counsel, questions of incorporation, prisoners' competence to be executed, permissible methods of execution, and some important statutory interpretation questions. Looking back on the Term, Justice Gorsuch clearly solidified his position as the libertarian "swing" vote in criminal procedure cases. He joined the liberals to uphold a defendant's right to trial …

How Animal Science Products, Inc. Plays A Role In The China And U.S. International Relations Saga, Tessa V. Mears

University of Miami Inter-American Law Review

“How Animal Science Products, Inc. Plays a Role in the China and U.S. International Relations Saga” takes a look at a June 2018 Supreme Court decision that ruled federal courts are not bound to defer to a foreign government’s interpretation of its own law. This paper discusses the pros and cons of absolute deference to foreign governments in these instances, in addition to examining the effectiveness of foreign amicus briefs in antitrust cases before the Supreme Court. This paper finishes with a discussion on the current state of international relations China and the U.S., with a summary of where the …

Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen

Cornell Law Review

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today's Supreme Court arguments are developed online: they are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent the parties or have even filed a brief in the case at all. This "virtual briefing" (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case …

Setting Our Feet: The Foundations Of Religious And Conscience Protections, Hanna Torline

Notre Dame Law Review

This Note does not attempt to claim that religion and conscience are not moral equivalents, that they are not equally important, or that they do not require equal legal treatment. Nor does it attempt to claim the converse. Simply put, it argues that a consideration of the different foundations underlying conscience protections and religious protections should give pause to anyone arguing that the two are equivalent. This Note concludes that the rationales behind protecting religion and conscience are different enough to merit consideration in the debate. For if religion and conscience are treated as equivalents under the law, they will …

Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen

Faculty Publications

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today's Supreme Court arguments are developed online: they are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent the parties or have even filed a brief in the case at all. This "virtual briefing" (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case …

A Call To Clarify The "Scope Of Authority" Question Of Qualified Immunity, Pat Fackrell

Cleveland State Law Review

It is no secret the doctrine of qualified immunity is under immense scrutiny. Distinguished jurists and scholars at all levels have criticized the doctrine of qualified immunity, some calling for it to be reconsidered or overruled entirely.

Amidst this scrutiny lies uncertainty in the doctrine’s application. Specifically, the federal courts of appeal are split three ways on the question of whether an official exceeding the official’s scope of authority under state law at the time of the alleged constitutional violation can successfully assert qualified immunity. Some courts of appeal do not require the official to demonstrate he acted within the …

Grab The Fire Extinguisher Comparing Uk Schemes Of Arrangement To U.S. Corporate Bankruptcy After Jevic, David S. Stevenson

Cleveland State Law Review

Corporations overwhelmed with debt frequently turn to the courts for help to restructure their credit obligations, but some courts are more helpful than others. This is especially true when creditors cannot agree on a particular resolution, let alone when some creditors will not be paid at all. International corporations often have a choice of forum—and substantive insolvency law—based on their legal and physical presence in dozens or even hundreds of countries. The UK and U.S. offer different avenues for using insolvency law to restructure debts without total liquidation, and the American avenue has become more difficult to navigate thanks to …

Juvenile Life Without Parole: How The Supreme Court Of Ohio Should Interpret Montgomery V. Louisiana, Grace O. Hurley

Cleveland State Law Review

Regardless of the numerous differences between juveniles and adults, some states, including the State of Ohio, continue to impose upon juvenile homicide offenders one of the harshest forms of punishment: life without parole. In 2016, the United States Supreme Court decided Montgomery v. Louisiana, and in doing so, the Court reiterated its previous contention that a sentence of juvenile life without parole should only be imposed upon juvenile homicide offenders whose crimes reflect "irreparable corruption." The Supreme Court of Ohio has yet to apply the Court’s Montgomery decision, but this Note suggests that if it does, the court should …

'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 …

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 …

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 …

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.

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.

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 …

Freedom Of Association, Extreme Partisan Gerrymandering, Justiciability And The Unmistakable Political Question Controversy, L. Darnell Weeden

Brigham Young University Journal of Public Law

No abstract provided.

Dimensions Of Delegation, Cary Coglianese

All Faculty Scholarship

How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional …

Table Of Contents

University of Richmond Law Review

No abstract provided.

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 …

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 …

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 …

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 …

From Animal Control To Zoning: 2019 Local Government Law Update, Tyler C. Southall

University of Richmond Law Review

The goal of this Article is to review significant recent developments in Virginia local government law. First, this Article discusses a number of Supreme Court of Virginia and Fourth Circuit Court of Appeals cases published between July 1, 2018 and July 1, 2019. These cases involve questions of the First Amendment and social media, the First Amendment and employment law, attorney client privilege and Freedom of Information Act requests, vested rights issues in zoning ordinances, the powers of the Virginia State Corporation Commission, and public finance. Second, this Article addresses new laws from the 2019 General Assembly. It is impossible …