Law Commons^™

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment's actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. The Ninth merely demands that such enumerated rights not be construed to deny or disparage other nonenumerated rights retained by the people. The standard use of the Ninth Amendment, in other …

Google's New Monopoly? How The Company Could Gain By Paying Millions In Copyright Fees, James Gibson

Law Faculty Publications

Last week, Google settled a controversial copyright case by agreeing to pay tens of millions in licensing fees to authors and publishers, with more to come. At first glance, it looks like this great champion of the free flow of information has caved to copyright interests. But in fact, Google may be better off with a settlement than an outright win. Before the court approves this agreement, then, it must consider the deal's anti-competitive effects. [..]

Labor, Luck, And Love: Reconsidering The Sanctity Of Separate Property, Shari Motro

Law Faculty Publications

This Article proposes a new alternative to the labor-centered marital property rule. Instead of focusing on how property was acquired, marital property law should look to spouses' overall financial resources and require them to share these resources to the extent they shape their identities during the marriage. Financial capability affects some of the most fundamental aspects of our lives-our health, our education, our work, the neighborhood in which we live. Marriages in which these aspects of spouses' identities are kept separate strike us as jarring. Imagine a husband and wife who sleep in the same bed, under the same roof, …

Checking Up With Barf:Evaluating The Effectiveness, Challenges And Shortcomings Of Thebankruptcy Abuse Prevention And Consumer Protection Act Of 2005., Robert Slimak

Richmond Public Interest Law Review

Following this introduction, Part II evaluates the effectiveness of the BAPCPA by measuring bankruptcy filing rates pre- and post-enactment and examines the losses disclosed by some of the largest credit lenders who lobbied for the bill. Part III discusses the legal challenges to BAPCPA that have already appeared in federal court. Part IV explains some of the more heavily-criticized shortcomings of the BAPCPA. This comment concludes with a brief discussion of the root causes of bankruptcy that remain unaffected by the passage of the BAPCPA.

Hava's Matching/Id Requirement: A Meaningless Tale Told By... Congress, Nathan Cemenska

Richmond Public Interest Law Review

This Article explores the question of whether HAVA requires matching, as well as the subsidiary question of whether HAVA mandates matching in states requiring voters to present a form of identification at the time of voting. The first question is a close one. However, on the second question, at least some courts are likely to conclude that HAVA exempts a state from having a matching program if the state requires identification from every voter at the polls. This Article makes a few modest recommendations to administrators trying to avoid the possibility of a lawsuit.

Museletter: January 2008, Suzanne Corriell

Museletter

This Issue:

Law Library Says Goodbye to John Barden by Suzanne Corriell

From the Suggestion Box

Ask the Computer Guru by Kim Wiseman

Welcome!

Pentagon Papers Docudrama Comes to Modlin Center

Kelo V. City Of New London And The Prospects For Development After A Natural Disaster, Carol N. Brown

Law Faculty Publications

The tension between private property rights, human rights, and community are at an all time high in many parts of the world. Social and political changes along with the pressures of globalization call for a new look at the role of private property and its place within the framework of democratic societies.This book addresses the current status of eminent domain and takings law jurisprudence. The focus is the relationship between private property, individual rights and community. The work covers a variety of points of view with respect to the legal, economic, and socio-legal aspects of property and of takings law, …

Seeking Shelter In Tough Times: Securing Housing For Youth Who Age Out Of Foster Care, Dale Margolin Cecka

Law Faculty Publications

Across the country, everyone is talking about a "housing crisis." For youth who age out of foster care, just finding a place to sleep each night is always a struggle. We know that nationally, 54% of recently aged-out youth are homeless or unstably housed. In addition, these youth face higher rates of unemployment, undereducation, teen pregnancy, and incarceration. In the last few years, lawmakers, advocates, and child welfare practitioners have finally started paying attention to adolescents discharged from foster care. This article focuses on laws and programs that target housing issues facing youth aging out of foster care. It also …

America’S Enduring Legacy: Segregated Housing And Segregated Schools, Jonathan K. Stubbs

Law Faculty Publications

Recently, the global human rights community experienced the loss of Oliver W. Hill. During his 100 years, Mr. Hill received many well-deserved awards including the NAACP’s Spingarn Medal, the Presidential Medal of Freedom, and the highest awards of the ABA. He was perhaps best known for his inspiring role as co-lead counsel in the Prince Edward County, Virginia, school desegregation case, Davis v. County Board of Education, which the Supreme Court consolidated with three other cases in Brown v. Board of Education. For 80 of his 100 years, first as an activist and later as a lawyer, Mr. Hill fought …

Three Myths Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

The breathtakingly broad language of the Ninth Amendment is both a blessing and a curse. It is a blessing for those seeking support for expansive theories of individual rights. Indeed, it is hard to conceive of a theory of individual liberty that cannot find at least rhetorical support in the Ninth Amendment's declaration of retained rights. It is not surprising, therefore, to find the Ninth Amendment invoked in support of everything from Dial-a-Porn to prostitution to organ selling. Once one decides that the Ninth Amendment refers to "other" unnamed individual liberties, there is literally no textual reason to exclude any …

The Original Meaning Of An Omission: The Tenth Amendment, Popular Sovereignty And “Expressly” Delegated Power, Kurt T. Lash

Law Faculty Publications

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the framers departed from the language of the Articles of Confederation and omitted the term expressly suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for a strict construction of federal power was simply an attempt …

Parker V. District Of Columbia: Putting The "I'S" In Milita, Katharine E. Kohm

University of Richmond Law Review

No abstract provided.

Ramifications Of Felony Disenfranchisement On The Votingpopulation In The Commonwealth Of Virginia, Dr. Monica Robbers

Richmond Public Interest Law Review

Virginia is one of 12 states in the United States that does not automatically restore the right to vote to all felons who have completed their sentences. This paper provides the historical context offelony disenfranchisement in the Commonwealth of Virginia, and includes an examination of legislation and the rationales behind it. Descriptive empirical analysis of individuals in Virginia who have been disenfranchised and the impact this has on the Commonwealth's voting population is conducted for the year 2000. In addition, analysis of the impact of disenfranchisement on voting in two counties and two cities is incorporated. Discussion of current policy …

Condemning Our Youth To Lives As Criminals:Incarcerating Children As Adults, Chelsea Dunn

Richmond Public Interest Law Review

Underlying the juvenile court system are two competing philosophies of justice which have taken predominance over the system at different historical periods in relation to the public climate. Early reformers conceptualized juvenile justice as an informal and protective system that would seek to rehabilitate disadvantaged children who had succumbed to criminal influences. In response to negative assessments noting the leniency of juvenile courts, critics began to advocate for a more punitive system which would focus on retribution rather than treatment. Measures adopted by courts to increase the criminal responsibility placed upon juveniles include minimum sentencing guidelines and transfer of offenders …

Really Leaving No Child Behind: How The Supreme Court's Student Speech Doctrine Compromises Modern Education Reform - And How It Can Use The In Loco Parentis Doctrine To Change It, Scott J. Street

Richmond Public Interest Law Review

tudent speech" doctrine defined by Tinker in favor of an in loco parentis standard that defers to the expertise of school officials in maintaining a safe, effective, and orderly school environment. Contrary to what its critics assume, an in loco parentis standard would not give school officials carte blanche to violate their students' rights. It would, for example, prohibit school officials from discriminating against students on the basis of viewpoint. But as long as Tinker's student speech doctrine survives, efforts to improve our schools and prepare our children for the rigors of the twenty-first century will suffer. The in loco …

Another Day In The Life Of The Juvenile Justice System: The Fight Againt The Abolishment Of The System, Antwaneisha Gray

Richmond Public Interest Law Review

This article seeks to evaluate that family focused approach of Florida. The first part of the article examines the history and evolution of the juvenile justice system. Part III, surveys the current method of transferring youthful offenders to adult courts and the criticisms of those methods. Lastly, the article considers the reasons that individuals advocate for the abolishment of the juvenile justice system and the family focused model.

New Era Begins: Mental Health Law Reform In Virginia, Jane D. Hickey, Allyson K. Tysinger

Richmond Public Interest Law Review

Amidst calls for mental health reform and a sense of urgency stemming from the tragic events at Virginia Tech, the 2008 session of the Virginia General Assembly convened. The legislative reaction was overwhelming: Legislators introduced a vast array of bills relating to mental health. By the end of the session, the General Assembly enacted the most sweeping revisions to Virginia's mental health laws since the 1970s.

Secondhand Smoke Deserves First-Rate Attention, Rickie Fulcher

Richmond Public Interest Law Review

Most people probably do not know that as many as 65,000 nonsmokers die from secondhand smoke exposure each year. In fact, secondhand smoke is the third leading cause of preventable death in the United States. During the 2008 session of the Virginia General Assembly, state legislators commendably introduced twelve smoke-free bills -the most in the legislature's history. While many of these efforts to protect the public health succeeded in the Senate, a House of Delegates subcommittee declined to hear many of the bills, effectively removing them from further consideration. Clearly, Virginia has a long way to go, but support for …

Who You Gonna Call - Virginia's Multi-Year Effort To Create A Children's Ombudsman Office, Melissa Goemann

Richmond Public Interest Law Review

If your home was overrun with spirits in the movie Ghostbusters, it was easy to know who to call-Ghostbusters! But for a child or parent to navigate through the maze of Virginia bureaucracies to figure out whom to call when questions or concerns arise about a child in state care can be difficult, if not impossible. A desire to simplify that process formed the impetus for recent Virginia legislation to establish a children's ombudsman office. Indeed, the ombudsman legislation would elevate the ombudsman beyond the role of simply "ghostbusting," or handling each complaint in a vacuum. It would also require …

The Price Of Privilege: Is Virginia's Ban On Mental Health Professionals' Participation In Custody Determinations Really In The Best Interests Of The Child, Mary Wilkins Hunt

Richmond Public Interest Law Review

This article examines the national treatment of mental health care professionals' participation in custody determinations and compares these practices with Virginia's ban. Furthermore, this article explores the rationale behind the ban on therapist testimony while weighing the pros and cons of allowing such evidence to be used. It then takes a closer look at the arguments for repealing the ban and the possible benefits which could result from the 2008 repeal.

Dui Gilt Pl8: An Evaluation Of The Proposed Shaming Sanction For Multiple Dui Offenders, Theresa M. Young

Richmond Public Interest Law Review

This comment seeks to analyze House Bill 1281 in the larger social context of shaming sanctions. It begins by tracing a brief history of offender punishment from the common use of shaming mechanisms to their disappearance and gradual resurgence. It further looks to the theoretical foundations of such alternative sanctions, as well as their potential effects on both individual conduct and social norms. Finally, it looks at the relationship between other approaches to DUI convictions and the methods proposed in Virginia.

Indices

Richmond Public Interest Law Review

Index of bills from the House and Senate of the Virginia General Assembly

Mcconnell V. Federal Election Commission: The Problem Of Eradicating Campaign Finance Corruption, Michelle C. Gabriel

Richmond Public Interest Law Review

Immediately after the BCRA became law, its constitutionality was Supreme Court of the United States upheld all of the Act's major provisions. This Article will examine four main empirical claims the Court makes in McConnell: (1) wealthy campaign donors are able to buy greater access to politicians with campaign contributions, (2) limits on freedom to associate within party committees are necessary in order to prevent campaign finance abuses, (3) reductions in campaign funding will not inhibit political campaigns, and (4) those who purchase campaign advertisements must be identified so voters are not misled by the advertisements' messages. The first two …

Protecting Virginia's Youth: Establishing A Children's Ombudsman Office, Chelsea Dunn

Richmond Public Interest Law Review

Efforts from across Virginia to give our Commonwealth's vulnerable children a voice culminated on March 8, 2008, as legislation approving the creation of a Children's Ombudsman Office passed both houses of the Virginia legislature. Senate Bill 315, introduced by Senator John S. Edwards and co-sponsored by Senator R. Edward Houck,' passed the Senate with only one dissenting vote and received unanimous treatment in the House. House Bill 1131, introduced by Delegate William H. Fralin, Jr. and co-sponsored by Delegate Robert H. Brink, was approved unanimously in both chambers. These identical bills seek to give a voice to the 9,269 vulnerable …

Beyond The Liability Wall: Strengthening Tort Remedies In International Environmental Law, Noah M. Sachs

Law Faculty Publications

Despite decades of effort, the international community has stumbled in attempts to craft tort remedies for victims of transboundary environmental damage. More than a dozen civil liability treaties have been negotiated that create causes of action and prescribe liability rules, but few have entered into force, and most remain unadapted orphans in international environmental law. In this Article, I explain the problematic record of tort liability regimes by developing a theoretical model of liability negotiations grounded in regime theory from political science. Based on this model, I conclude that negotiated liability regimes have foundered because of three main roadblocks: ( …

University Of Richmond Bulletin: Catalog Of The T.C. Williams School Of Law For 2008-2010, University Of Richmond

Law School Catalogues

The educational program of the law school is designed to equip its graduates to render the highest quality of legal services, while instilling a sense of professional responsibility. Students are trained in the analysis and solution of legal problems by the application of logical reasoning. The course of study is not designed to teach legal rules, but rather to provide a foundation for the application and analysis of the law and the development of professional skills. The traditional case method of instruction is used in many courses. However, clinical education and courses devoted to various professional skills are increasingly prominent. …

The Role Of Citizens In Environmental Decision-Making, Nicole M. Rovner

Richmond Journal of Law and the Public Interest

This article will describe five versions of the DEQ legislation from the bill's legislative journal: the bill as introduced, the bill that passed the General Assembly in 2007 with a reenactment clause, the bill introduced on behalf of proponents of board restructuring at the beginning of the 2008 session, the bill introduced on behalf of the restructuring bill's opponents, and the legislation that was enacted and will become effective on July 1, 2008. For each version of the bill, this article seeks to identify views regarding the nature of permitting decisions and the role of citizens in making those decisions.

Why All The King's Horses And All The King's Men Couldn't Putsovereign Immunity Back Together Again:An Analysis Of The Test Created In James V. Jane, Colleen F. Shepherd

Richmond Public Interest Law Review

In creating the test to determine whether government employees in the Commonwealth of Virginia are entitled to the benefit of sovereign tort immunity, the Supreme Court of Virginia stated, "[a] dmittedly, no single all-inclusive rule can be enunciated or applied in determining entitlement to sovereign immunity." The court, however, managed to formulate a four-part test to be consistently applied to each situation requiring a determination of whether sovereign immunity should be granted to a state employee. This article will examine the discretion prong of the four-part test created by the court in James v. Jane and the reasons why the …

Is Race In Public Schools Still Compelling?Parents Involved In Community Schools V.Seattle School District No. 1justice Breyer's Theory Of Active Liberty, Andpractical Considerations Of Democracy, Andrea Kayne Kaufman

Richmond Public Interest Law Review

This article explores why the promise of ending our dual society, as first articulated in Brown v. Board of Education, has not been fulfilled. Specifically this article examines a more recent case, Parents Involved in Community Schools v. Seattle School District No. 1, addressing the lost promise of Brown and the implications for our dual society.

Rumsfeld V. Forum For Academic And Institutional Rights, Inc.:By Allowing Military Recruiters On Campus, Are Law Schoolsadvocating "Don't Ask, Don't Tell"?, Braxton Williams

Richmond Public Interest Law Review

The freedom of speech protected by the First Amendment encompasses more than mere spoken words; it also protects conduct that has an expressive quality, such as flag burning.' In the important case of United States v. O'Brien, the United States Supreme Court appeared to narrow these sorts of protections in cases where there is a sufficient government interest in prosecuting actions, such as burning draft cards, and when such acts are noncommunicative. After the Supreme Court's recent holding in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the O'Brien holding's limitation on First Amendment protection for expressive conduct appears …