Law Commons^™

Google Books: Game, Set, But Not Match, James Gibson

Law Faculty Publications

It’s back: Google Books, our favorite topic in this Intellectual Property Viewpoints series. Google Books is the project through which Google has brought its search capability to the text of more than 20 millions books (with the number still growing). To do so, Google must scan the book and convert the scan to readable text. And there’s the problem: Scanning is copying, and copying raises the question of whether the massive project is a massive violation of the copyrights in all those books. Thus the Authors Guild v. Google class action brought by authors and publishers against Google in a …

Salvaging The 2013 Federal Law Clerk Hiring Season, Carl W. Tobias

Law Faculty Publications

Ten years ago, the judiciary instituted the Federal Law Clerk Hiring Plan, an employment system meant to regularize hiring in which most circuit and district court jurists voluntarily participated. Throughout the succeeding decade, this process operated effectively for innumerable trial judges, but functioned less well for appellate jurists. In early 2013, the U.S. Court of Appeals for the District of Columbia Circuit revealed that all its members "will hire law clerks at such times as each individual judge determines to be appropriate," concomitantly explaining "the plan is [apparently] no longer working." With these statements, the D.C. Circuit explicitly acknowledged what …

A Most Grievous Display Of Behavior: Self-Decimation In Indian Country, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Vine Deloria, Jr., the greatest indigenous philosopher of his day, wrote Custer Died for Your Sins: An Indian Manifesto in 1969. It was a spirited polemic that both galvanized and inspired Native peoples at home and abroad. Simultaneously, the book's powerful and trenchant words sent shock waves through non-Indian society. Deloria articulated a resurgent indigenous-centered understanding of sovereignty that had largely been suppressed by federal policy and law for nearly a century. Why did he emphasize the word "sovereignty"? Because he knew that Native nations needed to employ such concepts since they were familiar to both federal and state …

[Chapter 1 From] Hollow Justice: A History Of Indigenous Claims In The United States, David E. Wilkins

Bookshelf

This book, the first of its kind, comprehensively explores Native American claims against the United States government over the past two centuries. Despite the federal government's multiple attempts to redress indigenous claims, a close examination reveals that even when compensatory programs were instituted, native peoples never attained a genuine sense of justice. David E. Wilkins addresses the important question of what one nation owes another when the balance of rights, resources, and responsibilities have been negotiated through treaties. How does the United States assure that guarantees made to tribal nations, whether through a century old treaty or a modern day …

Smart Regulation And Federalism For The Smart Grid, Joel B. Eisen

Law Faculty Publications

This Article examines the “Smart Grid,” a set of concepts, technologies, and operating practices that may transform America’s electric grid as much as the Internet has done, redefining every aspect of electricity generation, distribution, and use. While the Smart Grid’s promise is great, this Article examines numerous key barriers to its development, including early stage resistance, a lack of incentives for consumers, and the adverse impacts of the federal-state tension in energy regulation. Overcoming these barriers requires both new technologies and transformative regulatory change, beginning with the development of a foundation of interoperability standards (rules of the road governing interactions …

Who Regulates The Smart Grid?: Ferc's Authority Over Demand Response Compensation In Wholesale Electricity Markets., Joel B. Eisen

Law Faculty Publications

This Article argues that Order 745 is both justified under the Federal Power Act (FPA) and important to ensure the transition to a clean energy future. A challenge to Order 745, Electric Power Supply Association v. FERC, is currently pending in the D.C. Circuit. This Article contends that Order 745 should be upheld against this challenge because it fits within FERC's broad authority to regulate the wholesale power markets.

When The Government Attempts To Change The Board, Investors Should Know, William O. Fisher

Law Faculty Publications

In 2008 and 2009, the federal government effectively hired and fired directors at American International Group and Bank of America. At AIG, the government exercised its power through the ownership of voting stock, which meant that the company’s public securities filings revealed the government influence, though at times slowly and at times only by inference. At BofA, by contrast, the government imposed its will through an unpublished bank regulatory action, and no securities filing provided even a hint of the federal role. The fact that current law allows the government to secretly reconstitute the governing bodies of multi-billion-dollar, publicly traded …

Watching The Watchers, Ronald J. Bacigal

Law Faculty Publications

This article focuses on the threat that increasingly sophisticated technology can pose to individual privacy. However, the author would like to provide the “yin to the yang” and point out the obvious: technology itself is not the culprit, because it is a double-edged sword, a tool that can be used to protect as well as invade privacy. We need not endorse the single-minded approach of WikiLeaks to recognize the benefits that occur when technology discloses government cover-ups or simply provides accurate information where none previously existed.

Harry L. Carrico And The Ideal Of The Lawyer-Statesman, Wendy Collins Perdue

Law Faculty Publications

“Professionalism.” This is a word that will always be associated with Justice Carrico—not only because he was a consummate professional himself, but also because he was dedicated to assuring that all lawyers understood the full ethical, social, and behavioral implications of their role as lawyers. Under his leadership, Virginia became the first state to require all newly-admitted lawyers to take a day-long course in professionalism. It is a model that has been widely emulated around the country.

The Virtues Of Thinking Small, Corinna Barrett Lain

Law Faculty Publications

Professor Lain argues that, in efforts to determine how close American states are to abolishing the death penalty, scholars should "think small," examining the ground level issues that affect its imposition. Among the issues she explores are exonerations of defendants, the legality and obtainability of lethal injection drugs, and the high costs of seeking and imposing capital punishment.

Click To Agree, James Gibson

Law Faculty Publications

The author reports on an analysis that he’s done of the cost to the consumer of actually reading and comprehending the boilerplate contracts that accompanied four computers that he bought, compared to potential consumer benefit.

Commandeering And Constitutional Change, Jud Campbell

Law Faculty Publications

Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is “fundamentally incompatible with our constitutional system of dual sovereignty.” The Printz majority’s discussion of historical evidence, however, inverted Founding-era perspectives. When Federalists such as Alexander Hamilton endorsed commandeering during the ratification debates, they were not seeking to expand federal power. Quite the opposite. The Federalists capitulated to states’ rights advocates who had recently rejected a continental impost tax because Hamilton, among others, insisted on hiring federal collectors rather than commandeering state collectors. The commandeering power, it turns …

Patent Applications And The Performance Of The U.S. Patent And Trademark Office, Christopher A. Cotropia

Law Faculty Publications

This Article reports data and analyses to facilitate answering these questions. The reported data was obtained from two sources. The first is the Workload Tables from the USPTO annual reports, called the "USPTO Performance and Accountability Reports," provided to the President, Congress, and public.' The second is data received from the USPTO in response to Freedom of Information Act ("FOIA") requests.3 From these two data sources, information such as the number of applications filed per year, the type of applications being filed and prosecuted, the pendency of these applications, and their disposition, including the number of them issued as patents, …

Discovering E-Discovery: A Resources Guide, Timothy L. Coggins

Law Faculty Publications

E-discovery refers to discovery in civil litigation that focuses on the exchange of information in electronic form. Lainie Crouch Kaiser, a litigation attorney with McDermott Will & Emery, writes that “e-Discovery can be used as an umbrella term for both the legal and operational considerations related to how electronically stored information (ESI) is used in the modern day practice of law.”There are many types of ESI, including e-mail and office documents, voicemail, photos, video, and databases. Attorneys and others who write about e-discovery also include “raw data” as discoverable information. Ronald J. Hedges of Nixon Peabody writes that “[t]echnically, documents …

The Cost Of Non-Compensable Workplace Harm, Henry L. Chambers Jr.

Law Faculty Publications

This essay briefly addresses the limited fashion in which Title VII remedies sex discrimination in the workplace. Those limitations fall into three broad categories. The first encompasses how courts have applied procedural rules to Title VII claims. The second involves Title VII's explicit limitation on its coverage. The third includes substantive limitations that courts have placed on causes of action that are clearly covered by Title VII. This essay addresses those categories in turn.

Tribute To Chief Justice Harry L. Carrico, John G. Douglass

Law Faculty Publications

An insightful personal perspective of Chief Justice Harry L. Carrico by Professor John G. Douglass.

Tips For Capturing 2014 Federal Court Clerkships, Carl W. Tobias

Law Faculty Publications

Now is a perfect moment for analyzing 2014 clerkships because law students across the country have completed their productive summer employment and are poised to commence their final year. Below are ideas which could help aspirants secure those coveted positions that start during next August.

Taxing Privacy, Hayes R. Holderness

Law Faculty Publications

In the United States, many low-income citizens are being held to a harsher standard than wealthier citizens — these low-income citizens are being asked to relinquish their privacy in order to obtain the public assistance they need, whereas wealthier individuals are not subjected to similar levels of public scrutiny for government benefits that they claim. Giving up privacy can have devastating effects on individuals’ lives — they may suffer various dignitary harms, may experience repressed abilities to express themselves, and may even be coerced into important life decisions by the government. This situation presents a unique problem to the neediest …

Resolution Vi: The Virginia Plan And Authority To Resolve Collective Action Problems Under Article I, Section 8, Kurt T. Lash

Law Faculty Publications

The article presents on the general principles of limited enumerated federal power followed by the courts of the U.S. used for determining scope of national authority. The declaration of Resolution VI under which the U.S. Congress has the power for regulating collective action problems having national importance is discussed. The historical evidences of Resolution VI, the debates related to ratification and the errors in historical facts are also discussed.

Inkblot: The Ninth Amendment As Textual Justification For Judicial Enforcement Of The Right To Privacy, Kurt T. Lash

Law Faculty Publications

One of the more indelible moments in late twentieth century legal discourse occurred when Judge Robert Bork described the proper response of a judge confronted with the Ninth Amendment. Nominated to replace retiring Supreme Court Justice Lewis Powell, Judge Bork appeared before the Senate Judiciary Committee and declared that courts had no business enforcing the mysterious clause at all. Given the scarcity of historical evidence regarding the original meaning of the amendment, using the Ninth Amendment to strike down a law would say more about the predilections of the judge than the requirements of the text. Here is the famous …

Research Strategies, Maureen Moran

Law Faculty Publications

It is 3 a .m. and you are up, prepping for class. Again. You have reading to do for Torts, for Contracts, and for Civil Procedure, and if you fall behind even one day, you will be spending hours late at night for the next few days trying to catch up. Or, worse, you will be unprepared and that will be the day your professor will call on you. And to add to your stress, you have a research project for your legal writing class due in less than two days, and you have not even started. Your professor told …

Foreign And International Legal Research, Maureen Moran

Law Faculty Publications

As you have been learning, the American legal system is only one of hundreds in the world. Each of those legal systems has its own rules, sources, and authorities. But these systems do not exist in a vacuum. What rules govern when two or more States or entities interact? What are the enforcement mechanisms? The study of these questions comprises the fields of foreign law and international law. The purpose of this chapter is not to give you a comprehensive review of all the resources available for researching this vast field of law. Rather, the goal is to give you …

Big Media In Copyright Litigation, James Gibson

Law Faculty Publications

What role does Big Media play in the courtroom?

Major media companies are often portrayed as aggressive drivers of expansive copyright, dominating every aspect of the legal landscape. When it comes to litigation, however, the truth is more nuanced. My colleague Chris Cotropia and I have recently completed a data collection project in which we examined pleadings from approximately 1,000 copyright cases filed over a four-year period (a statistically significant sample). We are still crunching the numbers, but what we’ve learned so far indicates that record labels, film studios, major software companies, and other behemoths of the copyright world end …

Four Ways In Which Kirtsaeng Might Be Undone, James Gibson

Law Faculty Publications

In my previous entry in this series, I discussed the Supreme Court’s long-awaited decision in Kirtsaeng v. John Wiley & Sons, involving the unauthorized resale in the United States of textbooks purchased overseas. Indeed, the Kirtsaeng case and the issue it presented have been a popular subject of IP Issues commentary; before the Supreme Court ruling, I wrote on the issue here and here, and Randy Picker had some commentary both beforeand after the opinion came down.

You can read those earlier entries for the details, but the outcome of the case is clear: U.S. copyright law does not prohibit …

Finally, An Answer On Copyright, First Sale, And The Gray Market, James Gibson

Law Faculty Publications

In two past entries in this series, here and here, I discussed whether copyrighted goods manufactured abroad may be resold in the United States without having to get a new license from the copyright owner. When the goods are pirated – manufactured illegally – the answer is clearly no; that’s a classic black-market sale. But when the goods were manufactured abroad with the copyright owner’s consent, well, that’s different. In that case, the resale is what we call a gray-market sale. And there, the answer is less clear.

Or at least it was. But at long last, and after one …

2010-2011 Veterans Law Update, Kathleen Dwyer, Alec Kast, Scott A. Sigmon, Andrew E. Tarne

Law Student Publications

Part I will cover updates related directly to veterans' benefits and rights. Part II will focus on updates to rules involving veterans' caregivers and healthcare facilities. Part III will cover proposed rules dealing with veterans' claims and insurance. Part IV will focus on rules and case law covering the VA's procedures and operating regulations.

Ideas For Law Students And Recent Graduates Entering The Real World, Wendy Collins Perdue

Law Faculty Publications

In light of a more challenging job market for law school graduates due to the recession, the Virginia Lawyer asked the deans of Virginia's law schools for their thoughts on how law students could better prepare themselves for their employment searches. This was Dean Wendy Perdue's contribution.

Administrative Law, John Paul Jones, Afsana Chowdhury

University of Richmond Law Review

What follows is, first, a report of certain developments during the last two years in the administrative law of Virginia, in particular the law governing rule making by state agencies and judicial review of both rules and cases from state agencies and, second, a report of developments in the law relating to Virginia's Freedom of Information Act.

Land Use And Zoning Law, Philip Carter Strother, Andrew E. Tarne

University of Richmond Law Review

No abstract provided.

A Distinction Without A Difference? An Examination Of The Legal And Ethical Difference Between Asset Protection And Fraudulent Transfers Under Virginia Law, Landon C. Davis Iii, Isaac A. Mcbeth, Elizabeth Southall

University of Richmond Law Review

No abstract provided.