Law Commons^™

Richmond Law Magazine: Spring 2002

Richmond Law Magazine

Features:

Legal Leaders

Interpreting Islam

Pulling His Weight

Museletter: February/March 2002, Gail F. Zwirner

Museletter

This Issue:

Reference Source of the Month: Hein Online by Gail F. Zwirner

[Library Hours]

Force And Colonial Development In Eastern Uganda, Carol Summers

History Faculty Publications

This article explores why and how administrators and missionaries in Eastern Uganda came to associate progress and development with the need to whip, coerce, and imprison women, developing new institutions for the violent control of wives that went far beyond more common patterns of informal patriarchal control. New Native Courts took over from husbands in arranging for troublesome wives to be whipped. New mission associations of church, teachers’ and evangelists’ groups, and church men’s groups worked to establish Christian patriarchal control over wives who rejected husbands and Christ. Both officials and missionaries understood clearly that the government and missions needed …

Terrorism And The Bill Of Rights, Rodney A. Smolla

Law Faculty Publications

This year is the Tenth Anniversary of the William & Mary Bill of Rights Journal, and the Journal is very fortunate and honored to have Professor Rodney Smolla publish an article in this year's volume. Professor Smolla played an integral role in the founding and organizing of not only the Journal, but also the Institute of Bill of Rights Law at William & Mary Law School. The J oumal extends its most appreciative thanks to Professor Smolla for all his help.

In this Article, Professor Smolla examines the right to free speech in the context of Black v. …

Erie Railroad V. Tompkins, Wendy Collins Perdue

Law Faculty Publications

Erie Railroad v. Tompkins 304 U.S. 64 (1938), limited the power of federal courts to create judge-made law that would displace state law. Jurists view the Supreme Court's decision both a modern cornerstone of American judicial federalism and an example of legal realism's influence.

Accuracy Where It Matters: Brady V. Maryland In The Plea Bargaining Context, Corinna Barrett Lain

Law Faculty Publications

Professor Lain argues that the role of Brady v. Maryland in protecting the innocent from wrongful conviction is just as essential in the plea bargaining context as it is at trial, and that therefore even defendants who plead guilty should be entitled to Brady's protections. However, she concludes that Brady's application in the plea bargaining context is destined to provide only a shadow of the protection Brady provides at trial because of the materiality standard currently used to judge post-plea Brady claims. In making both points, she employs a model of the plea bargaining defendant's decision-making process, using modern choice …

Jimmy Hoffa's Revenge: White-Collar Rights Under The Mcdade Amendment, John G. Douglass

Law Faculty Publications

I begin the Essay with a bit of comparative history. In Part I, I describe the death and burial of the Sixth Amendment no-contact rule espoused by Jimmy Hoffa. In Part II, I contrast the birth and expansion of an extra-constitutional no-contact rule under Model Rule 4.2 and the McDade Amendment. I begin with these contrasting histories because I believe they illustrate two critical points about the no-contact rule in criminal investigations. First, despite its place in codes of ethics, the no-contact rule in criminal investigations has little to do with ethics. Instead, today's debate over Rule 4.2 is simply …

Federal Judicial Selection In The Fourth Circuit, Carl W. Tobias

Law Faculty Publications

Professor Tobias assesses federal judicial selection for the United States Court of Appeals for the Fourth Circuit and for North Carolina. His Essay ascertains that four of fifteen active judgeships that Congress has authorized for the court have remained vacant over a considerable period and that a seat designated for North Carolina has been unfilled for seven years. He finds that these judicial vacancies may affect the appellate justice which the Fourth Circuit delivers and that North Carolina deserves.

Civil Rights In The Cold War, Carl W. Tobias

Law Faculty Publications

Review of Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (2000)

Dear Chief Judge Schroeder, Carl W. Tobias

Law Faculty Publications

Dear Judge Schroeder: Congratulations on becoming the Chief Judge of the United States Court of Appeals for the Ninth Circuit. Judge Procter Hug, Jr., transferred that office to you on December 1, 2000, during a quiet period in the tribunal's life, affording several months of relative calm m which to assume the daunting responsibility for Ninth Circuit operations. Your twenty-one-year service as an active court member will promote the felicitous discharge of your new duties as chief judge and will ease resolution of the difficulties that the tribunal will invariably encounter.

You have entered the pantheon of leaders whose century …

A Civil Discovery Dilemma For The Arizona Supreme Court, Carl W. Tobias

Law Faculty Publications

The drafters of the 1938 Federal Rules of Civil Procedure hoped to establish those rules as a model that the states could adopt, thus fostering national and intrastate procedural uniformity. This objective was not realized generally or by very many specific jurisdictions. Observers of the increasingly fractured procedural regime in the federal arena have voiced concerns about the mounting numbers of strictures, the accelerating pace of procedural change and the growing inconsistency of the requirements imposed. Illustrative are the major 1983 and 1993 federal discovery amendments, which new discovery provisions further revised in December 2000. The Civil Justice Reform Act …

Brownfields Redevelopment, Joel B. Eisen

Law Faculty Publications

Critiquing how brownfields programs expanded without much attention to developments in the international environmental arena will illustrate some ways to alter them to comport with Agenda 21 and other prerequisites for sustainable development. Another interesting aspect of this analysis for the Rio+ 10 review is its timing. The state and federal programs have mushroomed since 1992; for example, while a small of states had "voluntary cleanup programs" 10 years ago, virtually every state has one now, and there is considerable increasing experience with them. If adjustments to these programs should be developed to comport with the prescriptions of Agenda 21 …

Modern Tort Law Demystified, Carl W. Tobias

Law Faculty Publications

Review of Peter Bell & Jeffery O'Connell, Accidental Justice: The Dilemmas of Tory Law (1997).

Insurance Causation Issues: The Legacy Of Bird V. St. Paul Fire & Marine Ins. Co., Peter N. Swisher

Law Faculty Publications

In all of Anglo-American law, there is no concept that has been as been so pervasive - and yet so elusive - as the causation requirement; and even today this causation requirement in American law has resisted all efforts to reduce it to a useful, understandable, and comprehensive formula regarding its underlying nature, content, scope, and significance. Indeed, no less an authority than William Lloyd Prosser has stated that there "is perhaps nothing in the entire field of the law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion" than legal …

Marine Collisions In The Vertical: Submarines Surfacing, John Paul Jones

Law Faculty Publications

Discussion of liabilities arising from maritime collisions involving surfacing submarines.

Museletter: January 2002, Gail F. Zwirner

Museletter

This Issue:

Law School Expands Wireless Network Access by Timothy L. Coggins

Reference Source of the Month: West's Annotated Code of Virginia by Gail Zwirner

Recent Faculty Publications

One-L Lexis and Westlaw Training Schedule (Required for Law Skills) (Weeks of January 21 and January 28)

OP/ED: Will a National Tragedy Force U.S. Supreme Court to Join Other Courts and Accept Electronic Filings?

The Judicial Transformation Of Social Security Disability: The Case Of Mental Disorders And Childhood Disability, Jennifer L. Erkulwater

Political Science Faculty Publications

A full account of the judicial influence on Social Security disability programs would require a book-length, perhaps even encyclopedia-length, treatise and would take us far afield from our present concern. This article focuses narrowly on the activities of Legal Services attorneys, mental health reformers, and children's advocates. Although mental health reformer groups are only one of many antipoverty organizations involved in advocacy efforts on behalf of the disabled poor, they have been among the most persistent, the most active, and the most successful in using a litigation strategy to achieve their larger policy goals. According to one Social Security official, …

(Un)Welcome Conduct And The Sexually Hostile Environment, Henry L. Chambers Jr.

Law Faculty Publications

As courts refine the theory underlying sexual harassment and sex discrimination, the unwelcomeness inquiry may become irrelevant to determining whether gender-based conduct is sexually harassing. In addition, the one possible remaining purpose that the unwelcomeness requirement may serve-providing notice to a putative harasser or its employer-is now served by an affirmative defense applicable to many sexual harassment claims. Consequently, its role should be reexamined. This Article does that. Part I of the Article describes a hypothetical situation that provides a context in which to consider unwelcomeness. Part II provides a brief overview of the evolving sexual harassment jurisprudence. Part III …

A Note On The Neutral Assignment Of Federal Appellate Judges, Carl W. Tobias

Law Faculty Publications

Response to J. Robert Brown, Jr. & Allison Herren Lee, Neutral Assignment of Judges at the Court of Appeals, 78 Tex. L. Rev. 1037 (2000).

Earning Deference: Reflections On The Merger Of Environmental And Land-Use Law, Michael Allan Wolf

Law Faculty Publications

The bedrock notion that courts should, in the overwhelming majority of cases, defer to lawmakers is currently under attack in the nation's courts, commentary and classrooms. Leading the way are several United States Supreme Court Justices who, in cases involving the Commerce Clause, the Takings Clause and Section Five of the Fourteenth Amendment, are much more willing than their immediate predecessors to second-guess the motives and tactics of elected and appointed officials at all levels of government. ...

Denied Visitation, Its Impact On Children's Psychological Adjustment, And A Nationwide Review Of State Code, Adrienne E. Volenik

Law Faculty Publications

Denied visitation occurs when one parent prevents the other parent from court mandated visitation allowances with the child. This complex issue affects many families of divorce, but unfortunately is an understudied topic. Additionally, the literature that is available on denied visitation suffers from methodological challenges that are inherent to the complexity of the subject. Denied visitation is not a homogeneous event, but one that is conceptualized into two major categories: appropriate (i.e., concerning safety of the child) and inappropriate (i.e., involving interparent hostility). These two types of denied visitation are further divided into subcategories based on a review of the …

Factual Causation In Toxic Tort Litigation: A Philosophical View Of Proof And Certainty In Uncertain Disciplines, Danielle Conway-Jones

University of Richmond Law Review

The headline reads: "Town clenched in suffocating grip of as- bestos: W.R. Grace & Co. closed its vermiculite mine in Libby, Mont[ana], 10 years ago, but hazardous material was embedded in the ore. Experts attribute many cases of lung disease to what they call secondary exposure." Lately, exposure to toxic substances and harm to human health and the environment have become the norm, not the exception. Within the United States and its territories alone, environmental groups, as well as individuals, have documented the proliferation of harmful exposure to toxic substances from as far away as Kaho'olawe, Hawai'i, to as close …

Digital Handshakes In Cyberspace Under E-Sign: "There's A New Sheriff In Town!", Michael H. Dessent

University of Richmond Law Review

Without doubt, electronic commerce has increased the efficiency of businesses and consumers seeking to purchase goods, services, or intangibles by placing these objects just a keystroke away. If you already enjoy buying lingerie and foie gras over the Internet, you will love the new Electronic Signatures in Global and National Commerce Act ("E-SIGN") Want to borrow $10,000 at four in the morning over the Internet to buy a car? E-SIGN allows it. Or how about entering a "cybersigning chat room," extending a "digital handshake," and then buying that cherished wedding gown? E-SIGN allows this to happen. In this era of …

Foreword, William E. Spruill

University of Richmond Law Review

This, the ninth annual Allen Chair Symposium issue of the University of Richmond Law Review, includes four spirited articles centered around the Symposium's 2001 topic: Lawyer Advertising in the Electronic Age. Rodney A. Smolla, in The Puffery of Lawyers, argues that there are many reasons why bar regulators around the nation should cease restricting lawyer advertising in the absence of evidence that such puffery confuses or misleads consumers. In Change is in the Air: Lawyer Advertising and the Internet, Louise L. Hill examines the current and future status of lawyers using cyberspace to promote their services. William E. Hornsby, Jr., …

Change Is In The Air: Lawyer Advertising And The Internet, Louise L. Hill

University of Richmond Law Review

Today, virtually all the large law firms, as well as most of the small firms, have Web sites. These sites established by law firms vary considerably, with many containing a great deal of material that is informational in nature. When considering whether state ethics rules are applicable to lawyer communications on the Internet, an initial question is whether the communication is commercial speech. Regulations on advertising and solicitation that impose restrictions on commercial speech are limited to speech of that kind. This notwithstanding, states have uniformly held that these communications are subject to regulation under their respective rules governing lawyer …

Signaling Or Reciprocating? A Response To Eric Posner's Law And Social Norms, Dan M. Kahan

University of Richmond Law Review

There is an almost heretical disenchantment with law percolating within the legal academy. Conventional wisdom sees law as the natural solution to problems of collective action. When attaining some societal good-for example, a clean environment, a stock of useful technologies, a public education system, or a transportation infrastructure-depends on the willingness of individuals to behave in a manner that is not in their material interest, the law supplies incentives-such as tax abatements for nonpolluters, property rights for inventors, and punishments for tax cheats-that bring individual interests into alignment with collective ones. The problem, though, is that a regime of regulatory …

The Incalculable Risk: How The World Trade Center Disaster Accelerated The Evolution Of Insurance Terrorism Exclusions, Jane Kendall

University of Richmond Law Review

"The deliberate and deadly attacks, which were carried out yesterday against our country, were more than acts of terror. They were acts of war."

- President George W. Bush, September 12, 2001.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Civil Procedure By Contract: A Convoluted Confluence Of Private Contract And Public Procedure In Need Of Congressional Control, David H. Taylor, Sara M. Cliffe

University of Richmond Law Review

There is great appeal to the notion that parties to a contract may provide in their agreement for how certain aspects of any dispute that may subsequently arise will be resolved. The appeal is so great, in fact, that both parties and courts have embraced the use and enforcement of pre-litigation agreements ("PLAs"). These agreements take a variety of forms. Parties may agree to the forum in which their dispute will be resolved. They may designate the law that will be applied to the resolution of the dispute. Parties may designate what evidence may or may not be presented as …

Texas V. Cobb: A Narrow Road Ahead For The Sixth Amendment Right To Counsel, Beth G. Hungate-Noland

University of Richmond Law Review

Raymond Cobb stabbed sixteen-month-old Kori Rae Owings's mother in the stomach while he was attempting to steal the stereo from their home. He then took the mother's body into the woods behind the house.