Law Commons^™

The Common Law Right To Information, Joe Regalia

Richmond Public Interest Law Review

A once-thriving doctrine, today the common law right to information has been largely forgotten by U.S. courts at both the state and federal level. But courts have not paused to question whether the common law right still has a role to play in modern litigation. One reason may be the dearth of case law explaining the common law right's operation. Another may be that courts believe this doctrine has been eradicated by the advent of freedom of information laws. This article first brings together the disparate authority on the common law right in an attempt to pin down the precise …

Utilizing Credit Reports For Employment Purposes: A Legal Bait And Switch Tactic, James D. Phillips, David D. Schein

Richmond Public Interest Law Review

In our previous article, "Holding Credit Reporting Agencies Accountable: How the Financial Crisis May be Contributing to Improving Accuracy in Credit Reporting" we reviewed the legal history of the Fair Credit Reporting Act (FCRA), its amendments, and the federal case law by circuit. We suggested that the ability of consumers to ensure the accuracy and security of their credit reports might lead to an expansion of the litigation surrounding accurate credit reporting. This article takes the discussion further by exploring the ever-expanding use of credit reports in the employment law arena. We review the state legislation limiting the use of …

Testamentary Capacity Litigation In Virginia, F. Philip Manns Jr.

Richmond Public Interest Law Review

In Rust v. Reid, a 1918 case involving testamentary capacity, the Supreme Court of Virginia wrote the "cases upon this subject are almost without number, and they are not to be reconciled," but Rust referred to "all of the decisions of this court on the subject of competency of jurors," which also had been at issue in the case. However, in its decision in Rust, the Court easily could have leveled the same self-criticism about its cases deciding (1) which party bears the burden of proof in testamentary capacity litigation; (2) whether a presumption of testamentary capacity exists; and (3) …

Content-Based Confusion And Panhandling: Muddling A Weathered First Amendment Doctrine Takes Its Toll On Society's Less Fortunate, Clay Calvert

Richmond Public Interest Law Review

This article examines multiple problems now plaguing the fundamental dichotomy in First Amendment jurisprudence between content-based and content-neutral regulations of speech. The troubles were highlighted by the U.S. Supreme Court's 2014 divided decision in McCullen v. Coakley. Building from McCullen, this article uses a quartet of federal court rulings from 2014 and 2013 involving anti-begging ordinances affecting the homeless as analytical springboards for examining these issues in depth. Ultimately, the article proposes a three-step framework for mitigating the muddle and calls on the nation's high court to take action to clarify the proper test for distinguishing between content-based and content-neutral …

Gender Equity In The 21st Century: Keynote Address, Chai Feldblum

Richmond Public Interest Law Review

You have heard a lot this morning about the need in 1964 for Congress to enact prohibitions against discrimination on the basis of race, national origin and religion. I am going to use my time, therefore, to talk about gender equity: the addition of the sex discrimination prohibition in Title VII, the advances that have occurred since passage of that law, and the miles that we still have to go to achieve full gender equity.

Modern Sappers And Miners: The Rehnquist And Roberts Courts And The Civil Rights Act Of 1964, Jonathan K. Stubbs

Richmond Public Interest Law Review

this article is organized as follows. To orient readers on what is at stake, Section I provides a brief overview of the substantive provisions of the Civil Rights Act of 1964. Section II considers reasons why the Act was premised on Congress' Commerce Clause authority rather than the enforcement power that the Constitution confers upon Congress under the Thirteenth and Fourteenth Amendments. Section III evaluates several recent Supreme Court decisions that give the Commerce Clause a restrictive interpretation. For illustrative purposes, this section explores the impact on Title Two of the Act. Finally, the article closes with a few observations …

To End Divisions: Reflections On The Civil Rights Act Of 1964, Dr. Julian Maxwell Hayter

Richmond Public Interest Law Review

By focusing on a number of the CRA's key titles - without belittling the act's importance to Latinos, women, et al.- this commentary illustrates how the act moved beyond eliminating segregation; it addresses how the racial climate of the early 1960s shaped public policy. Broadly, the Civil Rights Act of 1964 sought to change the balance of racial (and genderbased) power in the America by using federal law to finally protect African Americans' right to live equal lives. After 1964, for the first time since Reconstruction, race was national policy agenda. This agenda and the Civil Rights Act of 1964 …

Public Hazard, Personal Peril: The Impact Of Non-Governmental Organizations In The Environmental Justice Movement, Andrea Y. Simpson

Richmond Public Interest Law Review

This article argues that the local emphasis of what I call micromovements that form the larger Environmental Justice Movement could gain more traction from relationships with Non-Governmental Organizations. Such partnerships are emerging on a national level; however, since the localized movements communicate with, but are not partners with, national organizations such as the National Black Environmental Network, it is unclear how such partnerships add value to the activities of local groups. Moreover, some partnerships are forged for the organization of a specific event such as a conference or working group study Part II of this article discusses an overview of …

Protecting The Digital Afterlife: Virginia's Privacy Expectation Afterlife And Choices Act, Mark Obesnshain

Richmond Public Interest Law Review

This article examines Virginia’s Privacy Expectation Afterlife and Choices Act. Part I surveys federal legislation and proposed uniform legislation that attempts to protect digital assets and records. Part II examines opposition to proposed legislation and another proposed law: the Privacy Expectation Afterlife and Choices Act. Part III details Virginia’s final version of the Privacy Expectation Afterlife and Choices Act. Part V concludes the Article.

What Role For Civility?, Bob Gibson

Richmond Public Interest Law Review

Every year recently, Virginians bemoan a loss of civility in a political arena that seems more callous, combative and partisan, less productive and turning churlish. Many view politics in Washington as hopelessly lost into gridlock and cycles of inaction, inattention to serious issues and retribution. Virginians hope that politics at the state level has not sunk as far.

What has happened to trust, civility, and respect in politics as it relates to this past General Assembly session?

Teaching To The Test: The Incorporation Of Elements Of The Bar Exam Preparation In Legal Education, Emmeline Paulette Reeves

Law Faculty Publications

This essay stops far short of advocating for a three-year bar exam course in place of a traditional law school education. It does not even argue for dedicating the final semester of law school to bar exam preparation. Rather, it suggests that the incorporation of elements of bar preparation into the law school curriculum actually can accomplish the dual objectives of, first, making law school education more efficient, and, second, enhancing the students' educational experience and grasp of the legal principles and skills necessary for passing the bar and, ultimately, becoming better lawyers.

Specifically, this essay urges law schools and …

Working With Cancer: How The Law Can Help Survivors Maintain Employment, Ann C. Hodges

Law Faculty Publications

Advances in cancer treatment are saving lives, but along with the benefits come challenges. Millions of cancer survivors of working age need to support themselves and their families. This Article looks at the impact of cancer on employment starting with the empirical evidence gathered by researchers affiliated with medical centers. This empirical research provides a base, not previously explored in the legal literature, for assessing the existing laws dealing with cancer and employment (or unemployment). Viewing the law through this lens, which reveals the complex relationship between cancer and employment, exposes both the promise and the weakness of existing laws …

How Reconstructing Education Federalism Could Fulfill The Aims Of Rodriguez, Kimberly J. Robinson

Law Faculty Publications

In the Rodriguez decision, the U.S. Supreme Court held that the plaintiffs did not have a right under the Constitution's Equal Protection Clause, which required the state of Texas to remedy disparities in funding for schools in high-wealth and low-wealth school districts. One of the principal reasons that the Court rejected the plaintiffs' claims was the need to maintain the current balance of power between the federal and state governments over education. Indeed, the Court acknowledged in Rodriguez that even though all equal protection claims implicate federalism, "it would be difficult to imagine a case having a greater potential impact …

Magna Carta's Rule Of Politics, John F. Preis

Law Faculty Publications

Eight hundred years ago last week in a meadow west of London, King John of England did something peculiar for a king: He promised to obey "the law of the land." And thus was born, we have been taught, America's "rule of law" - the principle that political leaders must act within boundaries set out in law.

English kings at that time did not feel bound to obey the law (much less anything else), so John's promise is typically celebrated as a huge step forward in the history of good government. It is entirely proper to remember Magna Carta for …

Friedrichs V. California Teachers Association: The American Labor Relations System In Jeopardy, Ann C. Hodges

Law Faculty Publications

The petitioners in Friedrichs v. California Teachers Association seek to overturn longstanding law relating to union security in the public sector. A decision in favor of the petitioners will invalidate provisions in thousands of collective bargaining agreements covering millions of workers. Additionally, it has the potential to upend the labor relations system in the United States. To understand how this might be the case, this Issue Brief will review the history of union security and the Supreme Court decisions that upheld union security agreements in the public sector. The Issue Brief will then look at the Friedrichs case itself, engaging …

The Challenge And Recusal Of Judges Of The International Court Of Justice, Chiara Giorgetti

Law Faculty Publications

The rules and mechanisms to challenge and recuse a judge of the International Court of Justice ("ICJ") are unique and pertain to the control mechanisms proper to permanent international dispute resolution bodies, characterized by a plurality of representative, elected judges. Indeed, the Statute of the ICJ ("Statute") provides a series of control mechanisms aimed at ensuring the independence and impartiality of its judges. The drafters of the Statute adopted a multi-tiered approach, relying first on self-control of each judge, and then envisaging a subsidiary control role for the President and the Court as a whole. Third-party requests for recusals are …

How Child Abuse Hotlines Hurt The Very Children They’Re Trying To Protect, Dale Margolin Cecka

Law Faculty Publications

The recent media obsession with “free range” parenting has illuminated a policy issue which rarely affects parents who debate free range parenting: the exploitation of child abuse reporting hotlines.

War, Responsibility, And Killer Robots, Rebecca Crootof

Law Faculty Publications

In War and Responsibility, John Hart Ely argues that Congress has willingly and cravenly surrendered its rightful role as the branch responsible for determining when and the extent to which the United States engages in armed conflicts. Since the publication of this seminal work on the war power, presidents have continued to commit troops to hostilities absent or outside of explicit congressional authorizations-and the legislature and the judiciary rarely challenge such actions.

Meanwhile, the United States is investing heavily in unmanned military weapon systems, and the U.S. Department of Defense has described increasing weapons' autonomous capabilities as a "high priority." …

Defining Domain: Higher Education's Battles For Cyberspace, Jacob H. Rooksby

Law Faculty Publications

Juliet famously mused, “What’s in a name? that which we call a rose / By any other word would smell as sweet.” The same cannot be said for Internet domain names. One’s inability to own a specific domain name has delayed product launches, caused companies to change names, and led to disputes with alleged cybersquatters. The utility of domain names has led to a robust secondary market of buyers and sellers, where domain names that encompass generic words, or are comprised of very few letters or numbers, often change hands for hundreds of thousands of dollars, or more. In short, …

The Twilight Zone: Perspectives From A Man On Death Row, Leah Stiegler

Law Student Publications

This interview was conducted through a series of written correspondences between Gerald Dean Cruz and Leah Stiegler, the Allen Chair Editor for Volume 49 of the University of Richmond Law Review. This exchange was reproduced, in excerpts, for the sole purpose of giving readers a rare glimpse into the perspective of a death row inmate.

Making Sure We Are Getting It Right: Repairing "The Machinery Of Death" By Narrowing Capital Eligibility, Ann E. Reid

Law Student Publications

This comment argues that, starting with the framework of the federal system, there is a way to reconcile modern concerns about the death penalty with society's need for leverage over those criminals who truly are the worst of the worst-those who present grave threats to society even after incarceration. This reconciliation can be achieved by amending the Federal Death Penalty Act to require prosecutors to establish one additional element before they can secure a capital conviction: future dangerousness of the defendant in prison..

A Survey Of The History Of The Death Penalty In The United States, Sheherezade C. Malik, D. Paul Holdsworth

Law Student Publications

Since the founding of Jamestown Colony in 1607, few topics in American life and culture have generated as much controversy, both in terms of persistence and volatility, as the death penalty. Foreign policy, economic recessions, and social movements come to the forefront of national discussion in their own respective ebbs and flows. Capital punishment, however, has been a staple of the American criminal justice system since the early inhabiting of the continent, and has remained a permanent vehicle through which we can enact retribution on the most heinous criminal offenders in our society, ridding ourselves of the worst among us.

Richard Prince, Author Of The Catcher In The Rye: Transforming Fair Use Analysis, Brockenbrough A. Lamb

Law Student Publications

This comment argues that fair use analysis should be reorganized from a disjointed four-factor morass into a straightforward two-part analysis that incorporates and clarifies the purpose of each of the four factors. Such a structure recognizes the role transformative use plays within the fair use doctrine as a whole. The comment then applies this process to a potential fair use defense for Richard Prince's The Catcher in the Rye.

What’S Worse, Nuclear Waste Or The United States’ Failed Policy For Its Disposal?, Christopher M. Keegan

Law Student Publications

This comment will analyze the SNF ("spent nuclear fuel") problem in the United States and offer recommendations for how to move forward. First, Part I will summarize the path that has led to this impasse. Part II offers recommended solutions on how the United States can develop a workable SNF solution that includes a permanent repository, consolidated intermediate storage, and reprocessing. Finally, this comment will offer its conclusion that the United States should begin the process of establishing a permanent geologic repository for SNF at a location other than Yucca Mountain, create a system of consolidated interim storage to temporarily …

There’S No Place Like Work: How Modern Technology Is Changing The Judiciary’S Approach To Work-At-Home Arrangements, As An Ada Accommodation,, Benjamin D. Johnson

Law Student Publications

This comment addresses the extent to which the evolving definition of the "workplace" has upset the courts' traditional approach to teleworking as a reasonable accommodation for disabled employees under the ADA and ultimately necessitated changes in the reasonable accommodation framework.

A Corporation’S Securities Litigation Gambit: Fee-Shifting Provisions That Defend Against Fraud-On-The-Market, Steven W. Lippman

Law Student Publications

This comment lays out a framework that should allow corporations to strategically defend themselves against frivolous and meritless 10b-5 class action suits invoking Basic's Fraude-on-the-Market ("FOM") presumption of reliance. Part I of this comment discusses the current landscape of securities class action litigation. It explains how and why the suits are initiated and discusses the outcome of Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II). Part II discusses the framework for the proposition of this comment. It provides a brief history of significant cases and incorporates several recent cases that have opened the door to the possibility of …

Danger In The Dmca Safe Harbors: The Need To Narrow What Constitutes Red Flag Knowledge, Hank Fisher

Law Student Publications

This comment considers recent cases interpreting the Digital Millennium Copyright Act ("DMCA") and urges Congress to expand the protection of service providers through the DMCA safe harbors. The comment proceeds in six parts. Part I explains contributory and vicarious liability, the applicable sections of the DMCA to this comment, and the fair use doctrine. Part II provides a brief overview of video-sharing websites. It further observes the impact that video-sharing websites have had on digital media, focusing on the impact on the music industry. Part III looks at the recent cases interpreting the DMCA's red flag exception to safe harbor …

Nrdc Sues Epa For A Failure To Issue Hazardous Substance Regulations: The End Of A Decades-Long Public Risk In Sight, Jack Morgan

Law Student Publications

Currently there are no federal regulations that prevent hazardous substance spills at onshore facilities, such as tank farms, or in communities where a spill of those chemicals could threaten water supplies. On July 21, 2015, the Natural Resources Defense Council (NRDC) filed a complaint on behalf of the Environmental Justice Health Alliance for Chemical Policy Reform (EJHA) and People Concerned About Chemical Safety (PCCS) against EPA and EPA Administrator Gina McCarthy in her official capacity as administrator, in the U.S. District Court for the Southern District of New York. The case has been assigned to Judge Shira A. Sheindlin. The …

Socioeconomic Integration And The Greater Richmond School District: The Feasibility Of Interdistrict Consolidation, Barry Gabay

Law Student Publications

This article seeks to offer a mitigating solution to the educational inequities plaguing Richmond Public Schools--socioeconomic integration and district consolidation. Under this race-neutral school assignment proposal, desegregation efforts are based not on an individual's ethnicity, but socioeconomic status. The proposal seeks to have no more than 50% of a student body receiving free or reduced-price lunch in any one school in the Richmond area. However, because of Richmond Public Schools' existing high poverty rate, no socioeconomic redistricting proposal would be effective without incorporating Richmond's adjacent suburbs- Chesterfield and Henrico counties.

Richard Prince, Author Of The Catcher In The Rye: Transforming Fair Use Analysis, Brockenbrough A. Lamb

Law Student Publications

This comment argues that fair use analysis should be reorganized from a disjointed four-factor morass into a straightforward two-part analysis that incorporates and clarifies the purpose of each of the four factors. Such a structure recognizes the role transformative use plays within the fair use doctrine as a whole. This comment then applies this process to a potential fair use defense for Richard Prince's The Catcher in the Rye. Part I provides background information on the relationship between the author, reader, and text as outlined by Roland Barthes, general copyright law, Richard Prince, and the fabulist Jorge Luis Borges. Part …