Law Commons^™

George Washington’S Constitution, Kurt T. Lash

Law Faculty Publications

The ghost of George Washington haunts almost every page of Saikrishna Prakash’s new book, Imperial from the Beginning: The Constitution of the Original Executive. It is a man, not a text, that dominates Prakash’s investigation of the creation of the American Presidency. From the Philadelphia Convention where Washington presided over (and likely influenced) the drafting of Article II, to the military quashing of the Whiskey Rebellion with Washington riding at the head of the new federal army--it is the “imperial” presence and practices of General Washington that Prakash believes generally represent the original understanding of Executive Power.

This is …

Justice Thomas's Kelo Dissent: The Perilous And Political Nature Of Public Purpose, Carol N. Brown

Law Faculty Publications

This Essay submits that the arguments that Justice Thomas constructed in his dissent were appropriately focused on the inherently political nature of the Fifth Amendment's Public Use Clause. Unlike the majority, Justice Thomas recognized that when the Supreme Court broadly interprets the public use restriction of the Fifth Amendment's Takings Clause, and at the same time defers to political actors in this arena, it fundamentally abdicates its constitutional responsibility. By deferring to political actors in this area, the Court in Kelo fundamentally abdicated its responsibility and also adopted a majoritarian doctrinal approach. Further, the Court conflated political ends with constitutional …

Fixing The Federal Judicial Selection Process, Carl W. Tobias

Law Faculty Publications

Federal court selection is eviscerated. Across five years in Barack Obama’s presidency, the judiciary confronted some eighty-five vacancies because Republicans never agreed to prompt Senate consideration. Only when the Democratic majority ignited the “nuclear option,” a rare action that permitted cloture with fewer than sixty votes, did gridlock end. However, openings quickly grew after the Grand Old Party (GOP) captured an upper chamber majority, notwithstanding substantial pledges that it would supply “regular order” again. Over 2015, the GOP cooperated little, approving the fewest jurists since Dwight Eisenhower was President. However, selection might worsen. This year is a presidential election year, …

Ferc’S Expansive Authority To Transform The Electric Grid, Joel B. Eisen

Law Faculty Publications

Using an unprecedented historical analysis of over 100 years of law dating to the Progressive Era, this Article concludes that the Supreme Court’s landmark decision in Federal Energy Regulatory Commission (“FERC”) v. Electric Power Supply Association properly asserted that FERC has ample authority to pursue broad environmental and energy goals in transforming the electric grid. Building on the Court’s finding that FERC may regulate “practices” that “directly affect” rates in wholesale electricity markets, the analysis develops a detailed standard that is consistent with interpretation of regulatory statutes in each of three distinct eras: the Progressive Era, the era of regulation …

A Golden Anniversary, P. Thomas Distanislao Iii, Ann Elizabeth Reid

University of Richmond Law Review

No abstract provided.

In Memoriam: J. Rodney Johnson, W. Hamilton Bryson

University of Richmond Law Review

No abstract provided.

Reforming Healthcare Reform, Jacqueline Fox

University of Richmond Law Review

No abstract provided.

A New Proposal To Address Local Voting Discrimination, Cody Gray

University of Richmond Law Review

No abstract provided.

Intellectual Property And The University: An Introduction, Jacob H. Rooksby

Law Faculty Publications

Higher education today faces many challenges. Adequately opening the doors of social mobility for students from diverse and non-traditional backgrounds. Rising tuition that has resulted in an entire generation of students emerging from college with student loan debt that can seem insurmountable. Declining state support of public institutions. Increased calls for institutions to contribute to local economies through job creation and workforce development. A growing administrative class in higher education that often only adds to bureaucracies and mounting costs instead of alleviating them. An increasing reliance on adjunct professors to teach core subjects and dwindling numbers of tenure-stream faculty. Urgent …

Imagining U.S. Labor Relations Without Union Security, Ann C. Hodges

Law Faculty Publications

Attacks on union finances are intensifying. These assaults, which come in various forms, have the potential to jeopardize the current systems of labor relations in the United States in both private and public sectors. This essay analyzes what might happen if the challenges are successful. Unions may shrink further in size or power, or alternatively, respond to new conditions in ways that strengthen them. Removal of union security might prompt legal change such as elimination of the duty of fair representation, elimination of the system of exclusive representation, or permitting the union to charge nonmembers for actual representation. These changes, …

Making Juvenile Justice More Humane And Effective, Julie Ellen Mcconnell

Law Faculty Publications

Long commutes, high costs and too much time away from family are among the most common frustration for workers in Virginia. But while those annoyances may be tolerable when it comes to our daily commutes, they have become an unfortunate feature of Virginia’s youth justice system, which confines hundreds of youth in large institutions far from their homes.

When young people have regular visits with their family and other members of the community, they have a much higher chance of being rehabilitated and successfully returning to those communities. Currently, many incarcerated youth in Virginia are held far from their families, …

Speech-Facilitating Conduct, Jud Campbell

Law Faculty Publications

Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law— restrictions on photography and audiovisual recording, limits on campaign contributions, putative newsgathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on …

Three Supreme Court “Failures” And A Story Of Supreme Court Success, Corinna Barrett Lain

Law Faculty Publications

Plessy v. Ferguson. Buck v. Bell. Korematsu v. United States. Together, these three decisions legitimated ‘separate but equal,’ sanctioned the forced sterilization of thousands, and ratified the removal of Japanese Americans from their homes during World War II. By Erwin Chemerinsky’s measure in The Case Against the Supreme Court, all three are Supreme Court failures—cases in which the Court should have protected vulnerable minorities, but failed to do so. Considered in historical context, however, a dramatically different impression of these cases, and the Supreme Court that decided them, emerges. In two of the cases—Plessy and Buck—the Court’s ruling reflected the …

Commentary For Price Waterhouse V. Hopkins, Dale Margolin Cecka

Law Faculty Publications

Price Waterhouse is primarily known for its addressing of sex stereotyping. The word “stereotype” appears ten times in the various opinions of Price Waterhouse , but the Court did not clarify what kind of stereotype-influenced behavior and workplace environment is illegal. The Court had in the record extensive expert testimony from Dr. Susan Fiske about stereotyping, but it dismissed that testimony as mere “icing on the cake” and it was not integral to the holding. The Court concluded summarily that partners reacted “negatively to [Hopkins’s] personality because she is a woman.” It alluded to the “possible ways of proving that …

Confirm Myra Selby For The Seventh Circuit, Carl W. Tobias

Law Faculty Publications

President Barack Obama recently nominated Myra Selby for a vacancy on the U.S. Court of Appeals for the Seventh Circuit. The nominee is a highly accomplished lawyer who has compiled a distinguished record in both the public and private sectors. For example, Selby was the first African American to earn partnership in a substantial Indianapolis law firm, and both the first African American and the first female Justice to serve on the Indiana Supreme Court. Therefore, concerted White House attempts to confirm her were unsurprising. Nonetheless, with 2016 being a presidential election year, delays have inevitably infused appointments, which have …

Confirming Circuit Judges In A Presidential Election Year, Carl W. Tobias

Law Faculty Publications

Over 2016, President Barack Obama tapped accomplished, mainstream candidates for seven of twelve federal appeals court vacancies. Nevertheless, the Senate Judiciary Committee has furnished a public hearing and vote for merely three nominees and did not conduct a hearing for any other prospect this year. 2016 concomitantly is a presidential election year in which appointments can be delayed and stopped—a conundrum that Justice Antonin Scalia’s Supreme Court vacancy exacerbates. Because appellate courts comprise tribunals of last resort for practically all cases and critically need each of their members to deliver justice, the appointments process merits scrutiny. The Essay first evaluates …

The President As Spiritual Leader: Pardons, Punishment, Forgiveness, Mercy, And Justice, Henry L. Chambers Jr.

Law Faculty Publications

The Constitution of the United States empowers the president of the United States to curtail or eliminate punishment for actual or possible federal criminal wrongdoing by issuing pardons. As the quotes that begin this chapter suggest, the nature of a presidential pardon is subject to dispute. A pardon can be thought to be an act of grace or an extension of the president's executive power to administer the criminal justice system, or something in between. This chapter does not resolve the issue, but considers the nature of the pardon power while considering whether or how the president can or should …

Preserving The Llsdc Legislative Source Book With Perma.Cc, Roger V. Skalbeck

Law Faculty Publications

With LLSDC’s Legislative Source Book, Rick McKinney was constantly concerned about the collection’s stability, functionality, and availability. With any major revision to the LLSDC.org website, Rick worked to ensure that content was accessible and that he and members of the Legislative Research SIS could keep it updated. In an effort to preserve the Legislative Source Book, the collection’s core elements were captured using the Perma.cc service. These links reference archived versions of each source, presented in parallel to its current form. There is more depth and detail than presented here, which shows the collection’s complex and comprehensive coverage.

Minor Federal Government Regulatory Agencies, Kathleen Klepfer

Law Faculty Publications

Rick McKinney’s “Federal Administrative Law: A Brief Overview” is a succinct and helpful place to find information about rulemaking, common administrative law statutes, and the major administrative agencies. But what about those unsung heroes, the minor regulatory agencies whose necessity—and sometimes purpose—are lost to history? We propose this addendum to Rick’s article to give a couple of these minor agencies their due.

Leveraging Narratives: Communicating Value With Qualitative Content, Roger V. Skalbeck

Law Faculty Publications

The contemporary law library is embodied by its information resources, physical space, technology infrastructure, and the people who make it all happen. Each of these elements can change dramatically with new information tools, shifting organizational demands and emerging service models.

Commentary To The U.S. Copyright Office Regarding The Section 512 Study: Higher Education And The Dmca Safe Harbors, Christopher A. Cotropia, James Gibson

Law Faculty Publications

The nearly twenty-year history of the Digital Millennium Copyright Act’s safe harbor provisions has been marked by criticism from content owners, online service providers, and end users. Content owners complain about the cost of monitoring online content and sending take-down notices. Online service providers complain about the cost of receiving and processing the notices. And end users complain about their legitimate use of copyrighted works being subject to DMCA take-down. Colleges and universities have been at the forefront of this controversy; as providers of online services to their students, they have been a focus of both Congress and copyright owners. …

Understanding Your Domestic Relations Rights In Virginia, 2016-2017, Julie Ellen Mcconnell

Law Faculty Publications

The Metropolitan Richmond Women’s Bar Association has published this booklet to help you understand the general legal circumstances that you may face in resolving domestic relations problems under Virginia law. Each person faces unique circumstances that may not be specifically addressed in a broad overview. This booklet is not intended to provide specific advice to you or to address your specific situation. You should use this document only as an introduction to understanding your legal rights.

This booklet is based on laws in effect in Virginia on July 1, 2016. Because laws are always subject to change, you should consult …

Between Legitimacy And Control: Challenges And Recusals Of Arbitrators And Judges In International Courts And Tribunals, Chiara Giorgetti

Law Faculty Publications

Challenges of judges and arbitrators in international courts and tribunals is a vastly understudied subject. To correct this imbalance, this Article makes three novel contributions. First, and for the first time, it details and compares challenge procedures across a variety of international courts and tribunals, including both permanent and ad hoc institutions. Second, it provides unique data on challenges and provides a detailed analysis of their outcomes. Third, it makes two concrete recommendations that should be adopted as baseline requirements to improve and harmonize existing challenge procedures: (1) it proposes that an external or semi-external institution take decisions on challenges, …

Derivative Racial Discrimination, Kevin Woodson

Law Faculty Publications

This Article introduces the concept of derivative racial discrimination, a process of institutional discrimination in which certain social and cultural dynamics impede the careers of minority workers in predominantly white firms even in the absence of racial biases and stereotypes. Derivative racial discrimination is a manifestation of cultural homophily, the universal tendency of people to gravitate toward others with similar cultural interests and backgrounds. Although not intrinsically racial, cultural homophily disadvantages minority workers in predominantly white work settings due to various race-related social and cultural differences. Seemingly inconsequential in isolation, these differences produce racial disparities in the accrual of valuable …

Human Capital Discrimination, Law Firm Inequality, And The Limits Of Title Vii, Kevin Woodson

Law Faculty Publications

This Article advances the legal scholarship on workplace inequality through use of evidence derived from interviews of a sample of black attorneys who have worked in large, predominantly white law firms. It does so by calling attention to the manner in which these firms operate as sites of human capital discrimination — patterns of mistreatment that deprive many black associates of access to the substantive work opportunities crucial to their professional development and career advancement. This Article identifies the specific arrangements and practices within these firms that facilitate human capital discrimination and describes the varied, often subtle harms and burdens …

A Meaningful Floor For "Meaningful Human Control", Rebecca Crootof

Law Faculty Publications

To the extent there is any consensus among States, ban advocates, and ban skeptics regarding the regulation of autonomous weapon systems (AWS), it is grounded in the idea that all weaponry should be subject to "meaningful human control." This "intuitively appealing" principle is immensely popular, and numerous States have explicitly declared their support for it or questioned the lawfulness of weapons that operate without such control. Lack of opposition has led some to conclude that it is either a newly developed customary norm or a preexisting, recently exposed rule of customary international law, already binding on all States.

But this …

Consent Is Not Enough: Why States Must Respect The Intensity Threshold In Transnational Conflict, Rebecca Crootof

Law Faculty Publications

It is widely accepted that a state cannot treat a struggle with an organized non-state actor as an armed conflict until the violence crosses a minimum threshold of intensity. For instance, during the recent standoff at the Oregon wildlife refuge, the U.S. government could have lawfully used force pursuant to its domestic law enforcement and human rights obligations, but President Obama could not have ordered a drone strike on the protesters. The reason for this uncontroversial rule is simple—not every riot or civil disturbance should be treated like a war.

But what if President Obama had invited Canada to bomb …

Change Without Consent: How Customary International Law Modifies Treaties, Rebecca Crootof

Law Faculty Publications

In 1903, Panama ceded its sovereign rights over the Panama Canal to the United States in perpetuity. The 1930 London Naval Treaty required submarines to comply with the contemporary law of war, including the prohibition on neutralizing enemy merchant vessels without having first ensured the safety of their passengers and crew. In 1945, the United Nations Charter prohibited its members from threatening or using force against another state, save for two limited exceptions. And, in 1969, Spain and Morocco concluded a permanent fisheries convention, setting the limit of their territorial seas at twelve miles.

Some of these treaties were bilateral …

Virginia Practice Series: Jury Instructions, Ronald J. Bacigal, Margaret Ivey Bacigal

Law Faculty Publications

Virginia Practice Series-Jury Instructions is a continuation and update of previous editions, which won widespread approval among the bench and bar for almost 40 years.

As in the past, this book is primarily confined to the most common areas of jury trial work, torts and criminal law. Where possible, the language of the instructions is taken directly from reported cases or case records. Where this is not possible, we have set out instructions that should meet both the general rules regarding the form of instructions and the specific substantive legal rules. In the latter cases, close attention has been paid …

Changes To Bankruptcy Forms And Pending Bankruptcy Rule Changes, Kathleen Klepfer

Law Faculty Publications

Nearly every form used by the bankruptcy courts went through a significant overhaul in December as part of a seven-year project designed to streamline the filing process. The voluntary petition—old Form B1—has now been split into three separate forms: B101 for individual debtors, B201 for nonindividual debtors, and B401 for foreign proceedings. This overhaul altered the format of most additional forms and schedules, including the internal “director’s forms,” all of which are now available on the court’s main form page. Because most form numbers changed as well, the courts have provided a conversion chart that aligns the old and new …