Law Commons^™

Retirement Incentives In The Twenty First Century: The Move Toward Employer Control Of The Adea, Judith A. Mcmorrow

University of Richmond Law Review

Retirement has become an increasingly important topic of public policy discussion in the United States, as well as an accepted, and even cherished, goal for many American workers. Consequently, it is not surprising that the Age Discrimination in Employment Act (ADEA) recognized, somewhat inartfully, the importance of retirement. When originally passed, the ADEA expressly provided an exemption for any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of the ADEA. In 1986, Congress amended the ADEA to eliminate mandatory retirement, but made clear in its legislative …

Annual Survey Of Virginia Law: Workers' Compensation, Daniel E. Lynch

University of Richmond Law Review

There have been significant developments in the law of workers' compensation since 1995, when the Annual Survey of Virginia Law last included this topic. The past two years have seen many changes in Virginia workers' compensation through legislation by the General Assembly and by Virginia appellate court decisions. This article focuses on some of the most significant developments with respect to (I) occupational disease claims, (II) injury by accident claims, (III) benefits and coverage under the Workers' Compensation Act, (IV) third party claims, (V) the termination of wage benefits, and (VI) new legislation affecting workers' compensation.

The Shaping Force Of Corporate Law In The New Economic Order, Jeffrey N. Gordon

University of Richmond Law Review

I am very grateful for the opportunity afforded by this Allen Chair lecture. I grew up in Richmond. During my formative years, between zero and two, my family lived in an apartment on Grace Street, and my mother would push me in the stroller around the block of Lombardy and Grace, where the T.C. Williams Law School was once located. Given all we know about psychology, it surely must be the case that the subliminal suggestion of legal studies at that crucial time accounts for my present occupation as a law professor.

Esop's Fables: Leveraged Esops And Their Effect On Managerial Slack, Employer Risk And Motivation In The Public Corporation, Hunter C. Blum

University of Richmond Law Review

Shareholder rights and their influence on corporate governance have become an increasingly important topic in corporate law. The recent wave of corporate downsizing in the early 1990's has disturbed our collective equilibrium. Many now challenge the basic corporate law tenet that the directors hold a fiduciary duty to the shareholders only and the traditional idea that the proper corporate goal is shareholder wealth maximiza- tion.

What Have You Done For Me Lately? Constitutional Limitations On State Taxation Of Trusts, Bradley E.S. Fogel

University of Richmond Law Review

Suppose a resident of New Jersey creates an irrevocable inter vivos trust. The settlor subsequently dies while a resident of New Jersey. Pursuant to the terms of her will, which is probated in New Jersey, her entire estate is paid to the trust. After a few years, one of the two trustees is a New York resident, the other is a resident of Connecticut. The trust's assets, intangibles such as stock in Delaware corporations, are held by the New York trustee in New York. All of the income beneficiaries of the trust reside in New York or Connecticut.

Letter From The Editor, Eric R. Link

Richmond Journal of Law & Technology

One of my first responsibilities as the Journal's 1996-97 editor in chief was to ask Professor John Paul Jones to serve as our faculty advisor. I made this request over dinner one evening late in the summer of 1996, and while he declined to commit (we eventually reached an agreement), he did make a very interesting observation. Being only the second editorial board in the Journal's brief history, Prof. Jones said it appeared as though I and the rest of the board were being asked to clean up after the revolution. He and I both found his comment amusing, since …

Procd, Inc. V. Zeidenberg: Enforceability Of Shrinkwrap Licenses Under The Copyright Act, Jennifer L. Hawkins

Richmond Journal of Law & Technology

"I didn't read all of the shrink-wrap license agreement on my new software until after I opened it. Apparently I agreed to spend the rest of my life as a towel boy in Bill Gates' new mansion."

Antitrust: Will It Change The Lives Of Telecommunications Executives?, Deborah V. Ellenberg, Glen O. Robinson, Michael F. Urbanski, James R. Wade

Richmond Journal of Law & Technology

Good afternoon. This is the last panel of the afternoon. I would like to introduce myself. I'm Deborah Ellenberg, one of the hearing examiners at the State Corporation Commission, and I might add, who has a heightened appreciation for the Virginia Commission's wise decision to handle those arbitrations. I am sure on behalf of Howard, Glenn and myself, we thank you for that decision.

Local Exchange Services In The Next Century -- What Still Must Be Done To Bring Us To Where We Want To Be?, Hullihen Williams Moore, Richard L. Cimerman, John J. Langhauser, Philip Mcclelland, Mark J. Mathis

Richmond Journal of Law & Technology

Our panel is Local Exchange Service in the Next Century--What Still must be Done to Bring Us to Where We Want to Be? We have four excellent panelists to address these questions. I expect the panelists to agree, in part, where we want to be, and they won't spend a whole lot of time about increased service, new technology, lower prices, and all those things. I am sure we'll hear some assurances along those lines, at least from three of the panelists. Most of the time will be spent on what still must be done to get us there. I …

Net Law: How Lawyers Use The Internet, G. Wingate Grant

Richmond Journal of Law & Technology

We have all had experiences where we listened to a preacher or maybe a law professor use a story to illustrate a point. Weeks later, we might not recall the point, but we remember the story. That was my feeling after reading through NET LAW: HOW LAWYERS USE THE INTERNET. This book might be considered a dictionary, a marketing book, or a computer book. Most significantly, it is an anthology of actual accounts of lawyers and their staffs successfully using the Internet to make their practices more efficient and, in some cases, lucrative. Now that I have your attention, let …

The Use Of Facilitated Communication In Child Abuse Prosecutions, James Frederick Watson

University of Richmond Law Review

Before allowing a child who has alleged that he or she has been abused to testify at trial, a judge must be satisfied that the child is competent. In other words, the judge must find that the child has the ability to "observe, record, recollect and recount as well as an understanding of the duty to tell the truth." Determining whether children with certain developmental disorders are competent to testify has recently presented the courts with some difficult issues, as evidenced by a recent case in which the Supreme Court of Kansas upheld a conviction based primarily on the apparent …

Liberty From Officials By Grace: The Fourth Amendment's Application To Automobile Passengers In Maryland V. Wilson, Michael Begland

University of Richmond Law Review

On February 19, 1997, the United States Supreme Court handed down its decision in Maryland v. Wilson, and put an end to twenty years of speculation regarding a police officer's authority to order a passenger out of a lawfully stopped automobile. In finding that such an order does not violate a passenger's Fourth Amendment privacy interests, the Supreme Court reversed Maryland's Court of Special Appeals and sided with the majority of states that have considered this narrow issue. The Court's decision provides important insight into the current state of Fourth Amendment jurisprudence and the Supreme Court's increasing willingness to sacrifice …

The Corporate Opportunity Doctrine-Recent Cases And The Elusive Goal Of Clarity, Harvey Gelb

University of Richmond Law Review

Diane, a director and public relations executive of a corporation called Discount Department Stores Inc., ("DDS"), which owns fifteen department stores, was having lunch in a restaurant located next to the DDS headquarters building. She was approached by Alice, a real estate agent, who had met Diane sometime ago at a soccer game involving their children. Alice asked Diane if she could join her for lunch, indicating that she had a business matter she wished to discuss. Alice told Diane that she was the selling agent for the owner of a large piece of real estate with an asking price …

Robinson V. Shell Oil Co.: Policy-Not Ambiguity-Drives The Supreme Court's Decision To Broaden Title Vii's Retaliation Coverage, Barry T. Meek

University of Richmond Law Review

Before the Supreme Court's pronouncement in Robinson v. Shell Oil Co., a majority of the circuit courts were blurring seemingly unambiguous language to expand Title VII's coverage to comport with amiable policy goals. Only policy justifications could explain the courts' willingness to cover postemployment retaliation based on language that prohibits an employer from discriminating "against his employees" and that further defines employees as those persons "employed by an employer." Clearly, the plain meaning of such language envisions that persons protected under Title VII have an existing employment relationship with the covered employer at the time of the alleged retaliatory conduct. …

The Supreme Court's "Exceedingly [Un]Persuasive" Application Of Intermediate Scrutiny In United States V. Virginia, Jeffrey A. Barnes

University of Richmond Law Review

The Supreme Court's decision in the case of United States v. Virginia in June of 1996 was a landmark decision that could change how future courts approach and resolve gender-based equal protection claims. The Supreme Court held that the Virginia Military Institute (VMI) could no longer continue its male-only admissions policy as a state-funded institution of higher education. The Court's apparent heightening of the level of scrutiny applied to gender-based classifications from the previously used intermediate scrutiny to an ambiguous standard either somewhere between the traditional intermediate scrutiny and strict scrutiny, or, in effect, a standard equivalent to strict scrutiny, …

Organized Labor As Shareholder Activist: Building Coalitions To Promote Worker Capitalism, Marleen A. O'Connor

University of Richmond Law Review

In the past, the traditional question posed by unions was: "which side are you on?"--presenting a clear choice between labor and capital. As membership and bargaining power fall, however, unions are asserting their rights as shareholders to influence corporate decision making outside the conventional labor law framework. Because the National Labor Relations Act does not adequately protect workers' rights, unions have devised innovative methods as shareholders to exercise unprecedented power over managers. In only a few years, labor-shareholders have become highly visible players in the institutional shareholder movement. As a group, labor-shareholders submit one of the largest numbers of shareholder …

"With The Greatest Respect And Fidelity:" A Cherokee Vision Of The "Trust" Doctrine, David E. Wilkins

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

The trust relationship is the conceptual/philosophical framework against which all relations between the federal government and indigenous groups are conducted. Yet despite the centrality of this concept, federal policymakers have no consistent or agreed upon definition of what the trust relationship actually entails. And, more importantly, indigenous conceptions of trust have rarely been assessed. This article analyzes and advances one tribe's—the Cherokee—perspective on trust. In focusing on how the Cherokee perceive trust, this section emphasizes that from an indigenous viewpoint the trust relationship embodies a complex and sophisticated understanding that both the tribe and the United States have reciprocal responsibilities …

Dear President Clinton, Carl W. Tobias

Law Faculty Publications

Professor Tobias offers advice on judicial selection philosophy for the newly reelected President Bill Clinton.

Contemplating The End Of Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

In continuation of the series of essays analyzing and documenting federal civil justice reform, this essay first provides an update on developments in civil justice reform nationally and in the United States District Court of Montana (Montana District). The essay then stresses the continuing work of the Ninth Circuit District Local Rules Review Committee and additional issues relating to case assignments in the Montana District. Finally, the essay takes a glimpse into the future.

Magistrate Judges In The Montana Federal District, Carl W. Tobias

Law Faculty Publications

Over the last three decades, growing caseloads and finite resources have fostered expansion of the jurisdiction, responsibilities, prestige and compensation of United States Magistrate Judges. Passage of the Civil Justice Reform Act (CJRA) of 1990, which required local experimentation with procedures for reducing expense and delay in civil litigation, propelled this development in many of the ninety-four federal districts across the country. The United States District Court for the District of Montana has quite strongly evidenced these phenomena. Perhaps most important, the CJRA expense and delay reduction plan that the district prescribed in 1991 included an opt-out procedure which it …

Virginia Law Reports And Records, 1776-1800, William Hamilton Bryson

Law Faculty Publications

In 1607 Virginia was settled by a London-based corporation, and the English settlers brought with them the municipal law and legal institutions of England. It was specifically required by the instructions to the Virginia Company that litigation was to be settled "as near to the common laws of England and the equity thereof as may be". In 1632 when commissioners were appointed to hold the monthly courts (later renamed the county courts), their commissions required them to execute the office of justice of the peace and to act "as near as may be after the laws of the realm of …

The Equity Jurisdiction Of The Exchequer, William Hamilton Bryson

Law Faculty Publications

The municipal Jaw of England is divided into common Jaw and equity. This is so because in the middle ages, the judges of the courts of common law (the Court of Common Pleas and the Court of King's Bench) believed that they could not expand the existing law in order to solve new problems. They thought that they were bound by the established Jaw as found in their own earlier judicial opinions. Furthermore, they felt that it was the function of Parliament to change the law; therefore, it would be an unconstitutional usurpation of the legislative power for the courts …

"Compelled By Conscientious Duty": Village Of Euclid V. Ambler Realty Co. As Romance, Michael Allan Wolf

Law Faculty Publications

In early 1851, Nathaniel Hawthorne penned an intriguing preface to his latest work--The House of the Seven Gables. Hawthorne drew a meaningful (if rarely appreciated) distinction:

When a writer calls his work a Romance, it need hardly be observed that he wishes to claim a certain latitude, both as to its fashion and material, which he would not have felt himself entitled to assume, had he professed to be writing a Novel. The latter form of composition is presumed to aim at a very minute fidelity, not merely to the possible, but to the probable and ordinary course of man's …

Property And The First Amendment, Mark Cordes

University of Richmond Law Review

The last decade has seen an increased recognition of property rights in Supreme Court analysis. This is most evident in the area of takings law, where the Court has on at least four occasions expanded property rights relative to government regulation. Perhaps even more significant than the results themselves has been the Court's tone in these decisions, where it has emphasized that property rights are to be taken seriously and are not a "poor relation" to other constitutional safeguards. This has led some commentators to suggest that recognition of property rights is becoming a primary agenda item of the Court.

Reluctant Charity: Poor Laws In The Original Thirteen States, William P. Quigley

University of Richmond Law Review

The poor laws of the original thirteen states can best be described as reluctant public charity. Assistance was provided to some of the poor but, when provided, was strictly rationed to those local residents considered worthy of help. Visitors, strangers and nonresident poor people were not helped and were legally run out of town. Poor relief for the locals was frequently given in ways that were demeaning and destructive to families. Poor people were always expected to work, and even poor children were taken from their families by the authorities and apprenticed to others. Poor adults that could work were …

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

The Property Concept Of Trade Secrets In Anglo-American Law: An Ongoing Debate, Miguel Deutch

University of Richmond Law Review

The law of trade secrets is central to the protection of commercial interests in information. The protection of information by way of this law has certain advantages not provided by the more "traditional" laws regulating intellectual property, advantages which amplify the growing interest of modern jurisprudence in trade secrets law.1 As has been correctly pointed out, the "traditional" rules governing intellectual property are ill suited to the demands of new technological developments.2 This reality has increased the importance of the law of trade secrets, in as much as it is both more flexible and general, and thus, more easily applied …

Does Pretext Plus Age Equal The Sum Of The Judgement?, Susan Childers North

University of Richmond Law Review

In deciding cases under the Age Discrimination in Employment Act (ADEA), several circuit courts of appeals have interpreted the tripartite test set forth in McDonnell Douglas v. Green to mean that a plaintiff could prevail in proving individual disparate treatment by proving a prima facie case and that the employer's proffered reasons were a pretext. The Third, Seventh and Eighth Circuits concluded that a showing that a proffered justification is pretextual is equivalent to a finding that the employer intentionally discriminated. In other words, "the plaintiff is entitled to judgment as a matter of law when, in the third stage …

Annual Survey Of Virginia Law: Professional Responsibility, James M. Mccauley, Michael L. Rigsby

University of Richmond Law Review

On October 18, 1996, the Virginia State Bar Council (Council) approved a change in the format of the Code of Professional Responsibility (Code) from canons, disciplinary rules, and ethical considerations to the Model Rules of the American Bar Association (Model Rules). The first twenty-one rules, Model Rules 1.1 through 2.5, were approved in substance with some amendments at the Council's meeting on June 19, 1997. This approval represents approximately one-third of the conversion from the Code to the Model Rules. The second installment of the conversion was approved by Council at its October 1997 meeting. Notwithstanding Council's approval of this …

Annual Survey Of Virginia Law: Public Utility Law, Edward L. Flippen, Kodwo Ghartey-Tagoe

University of Richmond Law Review

This article reviews the significant developments in the area of public utility law between January 1996 and August 1997. The first section covers legislative changes affecting electric, gas, telephone, and other public utilities; the second section reviews administrative action taken by the Virginia State Corporation Commission; and the third section addresses judicial action applied to the regulation of public utilities. The purposes of this article are to.provide Virginia public utility practitioners an overview of the recent developments in public utility law and to explain the impact these developments have upon public utilities operating in Virginia. This article, however, does not …