Law Commons^™

Rural America As A Commons, Ann M. Eisenberg

University of Richmond Law Review

With many ready to dismiss non-urban life as a relic of history, rural America’s place in the future is in question. The rural role in the American past is understandably more apparent. As the story of urbanization goes in the United States and elsewhere, the majority of the population used to live in rural places, including small towns and sparsely populated counties. A substantial proportion of those people worked in agriculture, manufacturing, or extractive industries. But trends associated with modernity—mechanization, automation, globalization, and environmental conservation, for instance—have reduced the perceived need for a rural workforce. Roughly since the industrial revolution …

“If You Build It, They Will Come”: Reverse Location Searches, Data Collection, And The Fourth Amendment, Matthew L. Brock

University of Richmond Law Review

On January 6, 2021, the world looked on, stunned, as thousands of rioters stormed the U.S. Capitol on live television in support of then-President Donald Trump. In the days and weeks that followed, federal law enforcement scrambled to identify those involved in the attack, in what has become the largest criminal investigation in American history. Whereas even 20 years prior it would have been difficult to identify those involved, as of February 2023, more than 950 people have been identified and charged in relation to the January 6th Capitol attack. Many of these individuals were identified using a wide array …

“Fundamental Fairness”: Finding A Civil Right To Counsel In International Human Rights Law, Meredith Elliott Hollman

University of Richmond Law Review

Every other Western democracy now recognizes a right to counsel in at least some kinds of civil cases, typically those involving basic human rights. The World Justice Project’s 2021 Rule of Law Index ranked the United States 126th of 139 countries for “People Can Access and Afford Civil Justice.” Within its regional and income categories, the United States was dead last. The United Nations and other international treaty bodies have urged the United States to improve access to justice by providing civil legal aid. How did we fall behind, and what can we learn from the rest of the world? …

The Legal Ethics Of Family Separation, Milan Markovic

University of Richmond Law Review

On April 6, 2018, the Trump administration announced a “zero tolerance” policy for individuals who crossed the U.S. border illegally. As part of this policy, the administration prosecuted parents with minor children for unlawful entry; previous administrations generally placed families in civil removal proceedings. Since U.S. law does not allow children to be held in immigration detention facilities pending their parents’ prosecution, the new policy caused thousands of children to be separated from their parents. Hundreds of families have yet to be reunited.

Despite a consensus that the family separation policy was cruel and ineffective, there has been minimal focus …

Fighting For Whiteness In Ukraine, Marissa Jackson Sow

Law Faculty Publications

Teri McMurtry-Chubb’s Race Unequals: Overseer Contracts, White Masculinities, and the Formation of Managerial Identity in the Plantation Economy offers groundbreaking insights into the gendered economic hierarchies internal to the body politic of whiteness through its examination of the limitations that plantation overseers’ contracts in the American Deep South placed on their ability to exercise the proprietorship and contracting authority prerequisite to white identity. This Essay uses the Ukrainian campaign to be recognized as a liberal white nation, and formally become a member of the West, as a contemporary case study of how whiteness remains hegemonized and subject to the ability …

Enhancing Rural Representation Through Electoral System Diversity, Henry L. Chambers Jr.

Law Faculty Publications

Rural Virginians face disparities in outcomes regarding healthcare, access to important infrastructure, and other services. Some disparities may be related to rurality. The sparseness of population in rural areas may limit the sites where people may access services, triggering the need to travel significant distances to obtain goods and services in such areas. Limited access may lead to disparities even when the quality of goods and services in rural areas is high. The disparities affect all rural Virginians, but disproportionately affect rural Virginians of color. The causes of the disparities are complex and myriad, and may be based on race, …

“If You Build It, They Will Come”: Reverse Location Searches, Data Collection, And The Fourth Amendment, Matthew L. Brock

Law Student Publications

On January 6, 2021, the world looked on, stunned, as thousands of rioters stormed the U.S. Capitol on live television in support of then-President Donald Trump. In the days and weeks that followed, federal law enforcement scrambled to identify those involved in the attack, in what has become the largest criminal investigation in American history. Whereas even 20 years prior it would have been difficult to identify those involved, as of February 2023, more than 950 people have been identified and charged in relation to the January 6th Capitol attack. Many of these individuals were identified using a wide array …

When Dirty Data Leads To Dirty Policing, Madison Blevins

Law Student Publications

"On May 25th, 2020, George Floyd was tragically killed by police officers in Minneapolis. While George Floyd’s death was the shock that catapulted the Black Lives Matter (“BLM”) movement to the center of international attention, it was also just the tip of the iceberg. Floyd’s death was not the first death of a black person at the hands of the police, nor would it be the last. “A black person is killed by a police officer in America at a rate of more than one [person] every other day.” These repeated incidents across the country have ignited a mass movement …

“Fundamental Fairness”: Finding A Civil Right To Counsel In International Human Rights Law, Meredith Elliot Hollman

Law Student Publications

Every other Western democracy now recognizes a right to counsel in at least some kinds of civil cases, typically those involving basic human rights. The World Justice Project’s 2021 Rule of Law Index ranked the United States 126th of 139 countries for “People Can Access and Afford Civil Justice.” Within its regional and income categories, the United States was dead last. The United Nations and other international treaty bodies have urged the United States to improve access to justice by providing civil legal aid. How did we fall behind, and what can we learn from the rest of the world? …

Going The Extra Mile: Expanding The Promoting Affordable Housing Near Transit Act, Emily Casey

Law Student Publications

The Promoting Affordable Housing Near Transit Act (“Act”), introduced in Congress in June 2021 and signed into law six months later, proposes a goal of balancing the disproportionately-high costs of housing and transportation felt by lower-income families by combining these resources in one project: transit-oriented housing developments. Middle-income and wealthy suburbanites have ready access to cities by car, but lower-income urbanites lack access to the suburbs without a private vehicle. While the goal of the Act recognizes this disparate outcome, the Act’s failure to include expansion of mass transit into the suburbs will continue to restrict low-income minorities to urban …

Movement Lawyers: Henry L. Marsh's Long Struggle For Educational Justice, Danielle Wingfield-Smith

University of Richmond Law Review

Born in 1933 in Richmond, Virginia, Henry Marsh was a protégé of legendary Virginia civil rights attorney Oliver Hill, who was a member of a civil rights legal team with Spotswood Robinson and commissioned by Charles Hamilton Houston to investigate school inequalities and prepare a legal strategy for dismantling segregationist laws. Growing up in Virginia during the 1930s, 40s, and 50s, Marsh was reared in the apartheid culture of Jim Crow society. Later, under Oliver Hill and Samuel W. Tucker’s mentorship, Marsh studied Virginia’s legal and educational systems and learned how to navigate Virginia’s seemingly tranquil Jim Crow politics called …

Ensuring Black Lives Matter When The Penalty Is Death, Sidney Balman

Law Student Publications

"Trayvon Martin. Michael Brown. Breonna Taylor. George Floyd. These are several of the names that come to mind when we think about the Black Lives Matter (BLM) movement. They are the faces of institutional oppression of Black men and women in their daily interactions with law enforcement. Thus far, the BLM movement has focused on police brutality against Black communities—the vagaries of violence perpetrated on minority communities by those whose duty is to protect them. But there is another place where Black Lives should Matter, but don’t—the death penalty." [..]

How The Conflict Between Anti-Boycott Legislation And The Expressive Rights Of Business Endangers Civil Rights And Antidiscrimination Laws, Debbie Kaminer, David Rosenberg

University of Richmond Law Review

This Article examines how opponents of anti-BDS laws may extend First Amendment rights in the business context to a point at which they actually threaten the validity of much antidiscrimination legislation. Part I discusses the BDS movement and state-based initiatives that attempt to penalize businesses that actively engage in a boycott of Israel. It examines the handful of cases in which federal courts have addressed the constitutionality of laws that require state contractors to affirm that they are not actively boycotting that country. Part II transitions to a discussion of the ways the Supreme Court has historically resolved conflicts between …

Religious Exemptions As Rational Social Policy, Justin W. Aimonetti, M. Christian Talley

University of Richmond Law Review

In its 1963 decision Sherbert v. Verner, the Supreme Court interpreted the Free Exercise Clause to permit religious exemptions from general laws that incidentally burdened religious practice. Sherbert, in theory, provided stringent protections for religious freedom. But those protections came at a price. Religious adherents could secure exemptions even if they had no evidence the laws they challenged unfairly targeted their religious conduct. And they could thereby undermine the policy objectives those laws sought to achieve. Because of such policy concerns, the Court progressively restricted the availability of religious exemptions. In its 1990 decision Employment Division v. Smith …

Entrenched Racial Hierarchy: Educational Inequality From The Cradle To The Lsat, Kevin Woodson

Law Faculty Publications

For my contribution to this special issue of the Minnesota Law Review, I will attempt to situate the problem of black underrepresentation at America’s law schools within the broader context of racial hierarchy in American society. The former has generated an extensive body of legal scholarship and commentary, centering primarily on the racial impact of law schools’ admissions criteria and procedures, particularly the substantial weight placed upon the Law School Admissions Test (“LSAT”). This focus is understandable: given the substantial racial disparities in LSAT performance and the test’s relatively limited value in predicting academic and professional outcomes, it makes sense …

Bostock, The Crown Acts, And A Possible Right To Self-Expression In The Workplace, Henry L. Chambers, Jr.

Law Faculty Publications

Employment at-will is the default rule in American law. In the absence of an employment contract, employers are generally free to discharge workers for any reason not barred by statute or public policy. Typically, an employee can be fired when an employer dislikes an employee's self-expression that is not specifically protected by law. However, recent developments in employment discrimination law may provide the foundation for a burgeoning right to self-expression in the workplace. In its recent case Bostock v. Clayton County, the Supreme Court ruled sexual orientation discrimination and transgender discrimination necessarily involve sex discrimination under Title VII. The Court's …

How Judicial Application Of Cda § 230 And Fha § 3604 Have Created Safe Havens For Online Housing Discrimination, Sophia A. Studer

Law Student Publications

This article analyzes how the anti-discrimination language of Fair Housing Act section 3604 is currently out of reach for people being discriminated against online through the exclusionary language of Communications Decency Act section 230(c). The exclusionary language in CDA section 230(c) prevents liability from attaching to interactive computer service providers so long as the interactive computer service provider is not a creator or developer of information. Through the decisions of Zeran, Craigslist, and Roommate, the federal appellate courts created broad shield of immunity for interactive computer service providers, leading to a safe haven for discrimination online. Together the courts and …

The Bivens "Special Factors" And Qualified Immunity: Duplicative Barriers To The Vindication Of Constitutional Rights, Amelia G. Collins

University of Richmond Law Review

Part I of this note traces the history of the Bivens cause of action and analyzes the original “special factors” that concerned the Supreme Court. Part I also outlines the purpose behind implying a Bivens cause of action for plaintiffs bringing constitutional claims. Part II includes the same analysis of the qualified immunity defense, both to its history and purpose. Part III demonstrates how the Supreme Court has incorporated the concerns addressed by qualified immunity into the “special factors” analysis, rather than acknowledging the mitigating nature of immunity defenses when examining if any “special factors” exist. Finally, Part IV argues …

Balancing Religious Liberties And Antidiscrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda Bauges

University of Richmond Law Review

Finally, this Article concludes by analyzing different potential methods for trying to balance religious liberty claims with antidiscrimination concerns, and thus Establishment Clause concerns, in public employment. This Article argues for a combination of relevant tests that balances the magnitude and likelihood of third party harm, substantiality of burden to religious liberty, and availability or prevalence of secular accommodations. This test provides room for factual inquiry and context-specific value judgments, while still allowing a workable framework, the results of which are sufficiently predictable that employers and employees are not left to wonder about the boundaries by which their relationship should …

Framing Legislation Banning The "Gay And Trans Panic" Defenses, Jordan Blair Woods

University of Richmond Law Review

This Article, prepared for the University of Richmond Law Reviewsymposium commemorating the fiftieth anniversary of the Stonewall Riots of 1969, uses the Stonewall Riots as an opportunity to analyze and theorize the political dimensions of legislation banning the gay and trans panic defenses. As a moment of resistance to state violence against LGBTQ people, the Stonewall Riots are a useful platform to examine the historical and current relationship between the state and the gay and trans panic defenses. Drawing on original readings of medical literature, this Article brings the historical role of the state in the growth of gay …

From The Mattachine Society To Megan Rapinoe: Tracing And Telegraphing The Conformist/Visionary Divide In The Lgbt Rights Movement, Kyle C. Velte

University of Richmond Law Review

From the beginning of the LGBT civil rights movement, there has been an intracommunity debate concerning strategies and tactics to effect legal and social change. On one end of the spectrum, the lesbian and gay organizations of the 1950s—the Mattachine Society and the Daughters of Bilitis—advocated an assimilationist strategy that sought tolerance rather than full acceptance and integration. The tactics to affect this strategy are best described as conservative and conventional—to look and act as “straight” as possible in order to convince courts, legislatures, and the public that lesbians and gay men should be left alone rather than fired from …

Dead Hand Vogue, Anthony Michael Kreis

University of Richmond Law Review

For decades, courts read employment antidiscrimination laws’ prohibition of sex discrimination to exclude gay, lesbian, bisexual, and transgender workers’ sexual orientation and gender identity discrimination claims—purportedly because the claims were not linked to employees’ status as a man or a woman. And while significant doctrinal developments have afforded some gender-nonconforming persons critical workplace safeguards under sex antidiscrimination laws, many older decisions that deemed sexual orientation and transgender discrimination claims to be outside the ambit of sex discrimination still control. These decades-old precedents all suffer from the same analytical error: a failure to adhere to the principle that antidiscrimination law does …

Shared Histories: The Feminist And Gay Liberation Movements For Freedom In Public, Elizabeth Sepper, Deborah Dinner

University of Richmond Law Review

This Symposium on the fiftieth anniversary of the Stonewall Rebellion presents the opportunity to evaluate the regulation and deregulation of gender and sexuality in public space. In 1969, LGBTQ people erupted against policing, harassment, and exclusion in public spaces. While they had engaged in earlier, smaller protests and reforms, Stonewall ignited a mass gay liberation movement and sparked popular awareness of LGBTQ people’s civil rights struggles. LGBTQ activists demanded their rights to express identity, associate with one another, and engage in queer behavior. That same year, the newly burgeoning feminist movement also launched protests and called for women’s equality in …

Building Queer Families And The Ethics Of Gestational Surrogacy, Kimberly Mutcherson

University of Richmond Law Review

Throughout American history, government has used the law to deny some citizens the right to create or sustain families with children to show contempt for those citizens. As LGBT people fought for dignity, equality, and justice from Stonewall to the present, one of the greatest success stories of that fight is the change in how the law defines and protects families. Into the 1990s, people in samesex relationships had cause to fear that their sexual orientation could be used to deprive them of custody of their children. Now, many states, through statute or case law, routinely recognize two parents of …

The Ripple Effects Of Gideon: Recognizing The Human Right To Counsel In Civil Adversarial Proceedings, Jonathan K. Stubbs

Law Faculty Publications

Procedural fairness and equal protection were the core of Gideon’s reasoning for a right to counsel for indigent criminal defendants. Under the same constitutional values, there should be a right to legal assistance of counsel for indigent civil litigants, especially in adversarial proceedings. This Article outlines the constitutional basis for a civil right to counsel. Further, it stresses the need for legislation to address the massive shortfall in legal representation available to indigent persons in the United States. Recognition of civil Gideon as part of the Constitution’s promise of justice accommodates a moral revolution. It exemplifies a shift in …

Making The Invisible Visible: Exploring Implicit Bias, Judicial Diversity, And The Bench Trial, Melissa L. Breger

University of Richmond Law Review

All people harbor implicit biases—which by definition, are not always consciously recognized. Although trial judges are specifically trained to compartmentalize and shield their decisions from their own biases, implicit biases nonetheless seep into judicial decision making. This article explores various strategies to decrease implicit bias in bench trials. Questions are then raised about whether a judge who has faced bias personally would be more amenable and more open to curbing implicit bias professionally. Ultimately, does diversifying the trial court judiciary minimize implicit bias, while also creating a varied, multidimensional judicial voice comprised of multiple perspectives? This article will explore this …

Transitional Equality, Suzanne A. Kim

University of Richmond Law Review

Legal discussions of inequality often focus on the virtues of one legal status or regulatory structure over another, but a guarantee of the right to a particular legal status does not ensure a lived experience of equality in that status. In moments of legal change, when a person or class of persons obtain a new status or gain rights that had previously been denied to them, the path from one legal status to another becomes critically important and may itself be impacted by race, gender, age, and other factors. The process of transitioning to a new status can be complex …

The First Amendment & The Great College Yearbook Reckoning, Maryann Grover

Law Student Publications

"“Yearbooks are meant to double as time capsules. There’s aspiration woven into their portrayals of things. . . .” As with all time capsules, some yearbooks contain things that would be better left in the past. Blackface, celebration of the Confederacy and white supremacy, even depictions of students in Nazi uniforms are surely things that most people believe should be left in the past, or should not have even existed in the past to begin with. However, the reality is that such racial and discriminatory depictions have historically been prevalent in student publications. In fact, out of 900 publications across …

Pardon Me Please: Cyntoia Brown And The Justice System’S Contempt For The Rights Of Black People, Danielle Wingfield-Smith

Law Faculty Publications

"The outcry that precipitated Cyntoia Brown’s pending release on August 7, 2019 is a resonating reverberation of the voices of counter-resistance, which continue to echo in the halls of American injustice. From the social media platforms for social justice to the chambers of the Supreme Court, the pleas for pardon are nothing new. Pardon me for driving, pardon me for walking home from the store, pardon me for walking in the street with friends, pardon me for playing with toys—all while Black. While you’re at it, excuse me for wanting the right to equal education. As a matter of fact, …

The People's Lawyer: The Role Of Attorney General In The Twenty-First Century, Mark J. Herring

University of Richmond Law Review

For the last five years, it has been my privilege to serve the people as their attorney general. The origin of the position of attorney general can be traced back centuries, but in a world that has become more interconnected, complex, and fast-paced, what does the role of a state attorney general entail in the twenty-first century and beyond? Is the proper role as a diligent but reactive defender of statutes and state agencies, or is there a deeper responsibility that calls for a more proactive and engaged use of its tools and authority? I have found that the job …