Law Commons^™

Frames Of Reference And The "Turn To Remedy" In Facial Challenge Doctrine, Kevin C. Walsh

Law Faculty Publications

This Symposium on Facial Challenges in the Roberts Court provides an opportunity to chart a path toward greater doctrinal coherence in light of the Court's most recent uses of the distinction between facial and as-applied challenges. In his contribution to this Symposium, David Faigman makes two claims that I address in this response. The first of Professor Faigman's claims is descriptive: "the debate over facial versus as-applied challenges is merely a subcategory of the pervasive issue concerning defining the proper frame of reference for empirical questions arising under the Constitution.'"' As Professor Faigman uses the term, a "frame of reference" …

Amended U.C.C. Article 2 As Code Commentary, David Frisch

Law Faculty Publications

In this short article, I suggest what is a valuable, if partial, corrective to the actual difficulties arising in the application of a statute that has not been subjected to significant changes for more than five decades. I begin in Part I by summarizing one of the sources from which information as to the proper application of Article 2 may be derived, and suggest that another appropriate source should be Amended Article 2. Part II will illustrate the soundness of the suggestion by applying Amended Article 2 to four issues, in order to conclude that specific outcomes can be predicated …

Notable Bills Of The 2009 Session Of The Virginia General Assembly

Richmond Public Interest Law Review

Notable House and Senate Bills during the 2009 session of the Virginia General Assembly

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Law Faculty Publications

Conventional wisdom is that outside the Eighth Amendment, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the "evolving standards of decency" doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely-and explicitly--determines constitutional protection based on whether a majority of states agree with it. This Article examines the Supreme Court's reliance on the majority position of the states to identify and apply constitutional norms, and then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While …

Neo-Colonialism, Same Old Racism: A Critical Analysis Of The United States' Shift Toward Colorblindness As A Tool For The Protection Of The American Colonial Empire And White Supremacy, Marissa Jackson Sow

Law Faculty Publications

In the 1950s, Franz Fanon boldly asserted: "There is a fact: White men consider themselves superior to black men." Over five decades later, a majority of white Americans would deny this, but such heartfelt denials are often betrayed by social realities. The difficulties many African Americans  experience in their private lives because of their racial identities became a topic of public debate during the course of Barack Obama' s historic candidacy for President of the United States. Then-Senator Obama was largely dismissive of the racism directed toward him during his campaign, and often refused to combat it in a straightforward …

Book Review: The Cambridge History Of Law In America Vol. 1: Early American (1580-1815), William Hamilton Bryson

Law Faculty Publications

The book under review is a survey of the influence of law on mainland British North America up to about 1815.

Biblical Interpretation, Constitutional Interpretation And Ignoring Text, Henry L. Chambers Jr.

Law Faculty Publications

Much is made of how to interpret the Constitution. The Constitution is foundational and its law is the highest law in the land. Consequently, interpreting the Constitution correctly is important, not only so that the Constitution's words are honored but so that its ideals are honored. Similar desires accompany the interpretation of other important documents. Indeed, how a sacred text like the Bible is or can be interpreted may shed light upon how the Constitution could be or should be interpreted. This brief Essay considers how a particular vision of Christian biblical interpretation can inform constitutional interpretation. This Essay does …

The Individual Inventor Motif In The Age Of The Patent Troll, Christopher A, Cotropia

Law Faculty Publications

The individual inventor motif has been part of American patent law since its inception. The question is whether the recent patent troll hunt has damaged the individual inventor's image and, in turn, caused Congress, the United States Patent and Trademark Office (USPTO), and the courts to become less concerned with patent law's impact on the small inventor. This Article explores whether there has been a change in attitude by looking at various sources from legislative, administrative, and judicial actors in the patent system, such as congressional statements and testimony in discussions of the recent proposed patent reform legislation, the USPTO …

The Folly Of Early Filing In Patent Law, Christopher A. Cotropia

Law Faculty Publications

This Article questions the conventional wisdom that the patent system should continue to encourage "early filing" of patent applications-filing at the beginning stages of technological development. The current thinking regarding early filing fails to account for the lack of technical and market information available about the invention at the early stages of development. A "file early, file often" mentality is instilled in inventors, exacerbating such systemic patent problems as too many patent applications, too many patents, underdevelopment of patented technology, increased assertion of patent rights, and fuzzy patent boundaries, to name a few. The Article suggests that in response patent …

The Tragedy Of The Commons: The Case Of The Blue Crab, Carl W. Tobias

Law Faculty Publications

The blue crab has achieved iconic status throughout the Chesapeake Bay area, while the pugnacious crustacean and the majestic estuary are national treasures. The shallow waters provide optimal habitat for the species that has been deeply woven into the bay's economic and cultural fabric. Last year, after a respected committee ascertained that the crab was in jeopardy, anticipated future deterioration, and proffered extreme recommendations, Virginia and Maryland imposed draconian strictures which could reduce harvests by one third and help ameliorate the creature's depletion. A recent Executive Order, ambitiously designed by President Barack Obama to safeguard and restore the Chesapeake, illuminates …

Beyond Incorporation, Kurt T. Lash

Law Faculty Publications

Incorporation as a theory of constitutional interpretation is dying. Incorporationist scholars are killing it. In this paper, I argue that they are right to do so, whether they mean to or not. The current incorporation debate bears so little resemblance to the theory of incorporation as it originally emerged at the time of the New Deal that I argue it is time to abandon the metaphor of incorporation altogether and admit that what we are after has nothing to do with incorporated texts from 1787. Our search is for the public understanding of texts added to the Constitution in 1868. …

Amazon's Kindle 2: The Copyright Ghost In The Machine, James Gibson

Law Faculty Publications

A number of copyright controversies have caught the public’s eye this year — e.g., the lawsuit over the AP photo of Barak Obama, the feud between Coldplay and Joe Satriani, the debate about Facebook’s policies toward the intellectual property of its users. Yet these disputes, fascinating though they are, involve the application of well-known legal principles. The facts are interesting, but the law is straightforward.

A somewhat less prominent controversy, however, offers a nice example of the frequent collision between copyright law, established business models, and new technologies. In February, Amazon introduced the Kindle 2 — the latest model of …

Two Copyright Lessons From A Pop Music Controversy, James Gibson

Law Faculty Publications

People who study copyright law for a living must frequently endure the disappointment of seeing an interesting case settle out of court. For example, lurking behind the current Google Books controversy is a fascinating fair use argument – but if the proposed settlement manages to survive antitrust and other challenges, no court will ever have a chance to rule on the fair use issue. And scholars like me will be left wondering what might have been (and whether the settlement actually prejudices future fair use arguments).

Sometimes, however, even a settlement teaches us something about the law. The recent lawsuit …

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Our Founding Feelings: Emotion, Commitment, And Imagination In Constitutional Culture, Doni Gewirtzman

University of Richmond Law Review

No abstract provided.

Proving Preemption By Proving Exemption: The Quandary Of The National Securities Market Improvement Act, Jeffrey D. Chadwick

University of Richmond Law Review

No abstract provided.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Jessica M. Yoke

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present the third issue of the 2008–2009 academic school year, which also is our Annual Survey on E-Discovery.

Databases, E-Discovery And Criminal Law, Ken Strutin

Richmond Journal of Law & Technology

The enduring value of the Constitution is the fundamental approach to human rights transcending time and technology. The modern complexity and variety of electronically stored information was unknown in the eighteenth century, but the elemental due process concepts forged then can be applied now. At some point, the accumulation of information surpassed the boundaries of living witnesses and paper records. The advent of computers and databases ushered in an entirely new order, giving rise to massive libraries of factual details and powerful investigative tools. But electronically collected information sources are a double-edged sword. Their accuracy and reliability are critical issues …

Electronic Discovery In Large Organizations, Jason Fliegel, Robert Entwisle

Richmond Journal of Law & Technology

The continuing expansion and virtually limitless array of technology and media available to store electronic information has had an immeasurable impact on the amount of information large organizations create and maintain. In many instances, this information continues to be available long after it has served the originator’s purposes. Yet, such information is not exempt from discovery in litigation, and attempting to identify, preserve, collect, review, and produce that information results in a significant burden on litigants, while the failure to do so can result in draconian sanctions or adverse publicity.

Achieving An Appropriate Balance: The Use Of Counsel Sanctions In Connection With The Resolution Of E-Discovery Misconduct, Thomas Y. Allman

Richmond Journal of Law & Technology

This article evaluates the increased use of counsel sanctions in connection with discovery misconduct in the federal courts. Decisions such as Qualcomm Inc. v. Broadcom Corp. (Qualcomm) have drawn attention to the affirmative responsibilities of counsel for discovery and the ample authority available to sanction them under appropriate circumstances.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Bridget Murray

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present the fourth issue of the 2008–2009 academic school year. Our authors analyze a variety of controversial legal topics that are at the forefront of debates regarding the intersection of technology and law.

Corporate Privacy Trend: The “Value” Of Personally Identifiable Information (“Pii”) Equals The “Value” Of Financial Assets, John T. Soma, J. Zachary Courson, John Cadkin

Richmond Journal of Law & Technology

Corporate America’s increasing dependence on the electronic use of personally identifiable information (“PII”) necessitates a reexamination and expansion of the traditional conception of corporate assets. PII is now a commodity that companies trade and sell. As technological development increases, aspects of day-to-day business involving PII are performed electronically in a more cost effective and efficient manner. PII, which companies obtain at little cost, has quantifiable value that is rapidly reaching a level comparable to the value of traditional financial assets.

The Ethics Of E-Mail, Thomas E. Spahn

Richmond Journal of Law & Technology

In many ways, communicating by e-mail and other forms of electronic transmission reflects a fundamentally different way of human interaction. Historians eventually will put this in perspective, but one could easily conclude that e-mails are essentially a “third way” for people to communicate.

Dissonant Paradigms And Unintended Consequences: Can (And Should) The Law Save Us From Technology?, Donald Labriola

Richmond Journal of Law & Technology

Technologies like digital audio, the Internet, and broadband communications spur economic growth and foster new patterns of commerce and social interaction. But they also spawn disruptive innovations that force established industries to forge novel responses or risk falling by the wayside. The horse-and-buggy industry, vaudeville, and video-rental stores are but a few examples of thriving markets that found themselves on the scrap heap of obsolescence because they failed to react quickly to the devastating effects of new technology.

How “Choruss” Can Turn Into A Cacophony: The Record Industry’S Stranglehold On The Future Of Music Business, Andrey Spektor

Richmond Journal of Law & Technology

A sixty year-old man is delighted when his son shows him how to use Pandora—an interactive, hip Internet radio site that puts the listener in control. Having grown up a huge Louis Armstrong fan, the man quickly selects the jazz singer as one of his “stations.” When listening to this station, Pandora will only play songs by Armstrong and other similar artists for him. When he hears Armstrong’s classic, “What a Wonderful World,” the man immediately clicks the “Thumbs Up” icon, indicating his approval of Pandora’s recommendation. Pandora’s recommendations are drawn from its “Music Genome Project,” a database of song …

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Robert Michaux

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present the second issue of the 2009–2010 academic year.

The Regulation Of Nanomedicine: Will The Existing Regulatory Scheme Of The Fda Suffice?, Shanna Harris

Richmond Journal of Law & Technology

Nanotechnology is the science and technology of manipulating molecules and atoms at the molecular level to create devices with new molecular properties, organizations and functions.1 Devices such as new computers that are billions of times more powerful than any currently available2 and boxes the size of sugar cubes that can hold the entire content of the Library of Congress are examples of the power of nanotechnology.

Will The Federal Circuit’S Eli Lilly V. Teva Decision Lead To Efforts To Abuse The Modification Provision Of The Hatch-Waxman Act?, Claire K. Comfort

Richmond Journal of Law & Technology

The Hatch-Waxman Act provides a mandatory thirty-month stay on the Food and Drug Administration’s (FDA) approval of an Abbreviated New Drug Application (ANDA) when a patent infringement suit is filed. The Act includes a provision for a district court to shorten or extend the Act’s thirty-month stay on FDA approval if “either party to the action failed to reasonably cooperate in expediting the action”

Dreadful Policing: Are The Semiconductor Industry Giants Content With Yesterday’S International Protection For Integrated Circuits?, Michael Fuerch

Richmond Journal of Law & Technology

Over the past twenty years, the semiconductor industry has grown rapidly. Technological advances have resulted in smaller, faster, and more cost-efficient semiconductor integrated circuits. Today, integrated circuits (“chips”) are found in the majority of electronic devices includes consumer electronics like computers, phones, televisions, and automobiles, and industrial electronics such as motor drives and programmable logic controllers.

This

Students’ Free Speech Rights Shed At The Cyber Gate, Vivian Lei

Richmond Journal of Law & Technology

Education is one of the most important functions of the government. Because public schools are under the control of state and local authorities, the administrators and teachers of these schools are subject to requirements established in the United States Constitution. For example, for more than thirty years, the Supreme Court has supported the due process rights of students facing a deprivation of liberty and property interests in education.