Law Commons^™

Intervention After Webster, Carl W. Tobias

Law Faculty Publications

Webster v. Reproductive Health Services throws down the gauntlet on the "most politically divisive domestic legal issue of our time," imperiling women's progress in securing reproductive freedom and power in society. The battle over abortion rights is likely to splinter an already deeply divided country. After fierce fighting in many statehouses, some legislatures will pass statutes further restricting abortion. The major battleground, however, will quickly shift to the federal courts, where plaintiffs seeking to protect procreative freedom will challenge these measures. Judges, parties, and lawyers participating in this litigation will rigorously analyze the issues of "substance" that Webster and the …

U.C.C. Survey: General Provisions, Bulk Transfers, And Documents Of Title, David Frisch

Law Faculty Publications

This year several cases discussed the preemptive effect of the Federal Cigarette Labeling and Advertising Act upon state law tort and contract claims arising from the sale of cigarettes to smokers who contracted cancer. This is aptly illustrated by Forster v. R. Reynolds Tobacco Co., which was decided by the Minnesota Supreme Court. In that case, the smoker (Forster) sued a cigarette manufacturer (R.J. Reynolds) in strict products liability, misrepresentation, breach of warranty, and negligence. The cigarette manufacturer moved for summary judgment on the ground that the Federal Cigarette Labeling and Advertising Act preempted all state tort claims. The trial …

Richmond Law Magazine: Winter 1990

Richmond Law Magazine

Features:

Judge Merhige Honored at Scholarship Dinner

Resolving Questionable Positions on a Client's Federal Tax Return

Remembering Nina R. Kestin, Kenneth E. Powell

University of Richmond Law Review

There are many people whose lives are different because Ricki Kestin was in it. I am one of those people. You will understand when I tell you that I did not want to speak today; that I did not want to tell you what I knew or thought or felt about Ricki.

Comparative American Judicial Systems, Jeffrey A. Parness

University of Richmond Law Review

Far too often when we discuss American courts and their judicial systems, we take little note of the significant differences in the ways in which cases are handled and law is practiced. We probably contemplate the dichotomy between trial and appellate courts; between rural and urban courts; between general and special jurisdiction courts; between state and federal courts; between courts with elected and selected judges; and between civil and criminal courts. We also surely contemplate the differences in attitudes, work habits, ideology, staff and the like which separate individual judges, and we inevitably contemplate the divergent judicial approaches to the …

A Landlord's Duty To Protect Against Criminal Act On Premises: A Proposal For Virginia, Bonnie Mcduffee

University of Richmond Law Review

"The world abounds with laws, and teems with crimes," a statement made in 1775, applies with equal force today. No one escapes the specter of crime. An Arlington, Virginia woman, assaulted in her apartment, knows the toll crime takes. So does a woman falling victim to an attacker in a dark Norfolk, Virginia parking lot.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Annual Survey Of Virginia Law: Antitrust And Trade Regulation, Michael F. Urbanski

University of Richmond Law Review

In this past year, as in previous years, Virginia courts have imposed strict requirements on plaintiffs bringing antitrust claims. While antitrust claims remain popular, many have foundered because the plaintiff either failed to show the existence of an antitrust conspiracy or antitrust injury, or the plaintiff inadequately defined the market allegedly affected by the antitrust violation. The courts' exacting scrutiny extends beyond the elements of the action itself to procedural rules, evidentiary requirements and remedies. While one Fourth Circuit case suggests a slight relaxation in the analysis of state action immunity, the apparent adoption of the "market screen" analysis in …

Annual Survey Of Virginia Law: Commercial Law, Michael J. Herbert

University of Richmond Law Review

This survey of commercial law discusses all Supreme Court of Virginia cases interpreting Virginia's version of the Uniform Commercial Code (the "Code" or the "U.C.C.") during the previous year, as well as statutory changes made to the Code in the most recent session of the General Assembly. It also reviews significant Code cases decided in the Virginia circuit courts and in the various federal courts sitting in Virginia. It is current as of about May 1, 1990.

Annual Survey Of Virginia Law: Environmental Law, James E. Ryan Jr.

University of Richmond Law Review

This article addresses significant developments in Virginia law pertaining to air and water pollution, solid and hazardous waste, and environmentally sensitive areas which have occurred between the publication of last year's survey and August 1, 1990.

Annual Survey Of Virginia Law: Legal Issues Involving Children, Robert E. Shepherd Jr.

University of Richmond Law Review

The past few years of legal developments involving children have been marked in part by an increase in the number of major decisions from the United States Supreme Court which have had a direct impact on children. Some of those decisions have had a very dramatic effect, as noted in previous surveys, such as juvenile death penalty cases, cases addressing issues involving abused or neglected children, an opinion defining the associational rights of children, two cases further extending the rights of illegitimate children, decisions addressing the educational rights of handicapped children, and three important decisions narrowing the first amendment and …

Annual Survey Of Virginia Law: Professional Responsibility, Timothy M. Kaine

University of Richmond Law Review

This year, like many years, has been marked by increasing public concern over legal ethics. Public attention has been drawn to lawyers' participation in scandals such as the misuse of funds by the Department of Housing and Urban Development, the collapse of the savings and loan industry, and numerous ethical breaches by members of Congress.

Annual Survey Of Virginia Law: Property Law, Michael H. Terry, Charles H. Rothenberg, Gloria L. Freye

University of Richmond Law Review

The Supreme Court of Virginia, the United States Court of Appeals for the Fourth Circuit, and the Circuit Court of Fairfax County have decided a number of important property law cases over the past year. Part I of this article discusses the most significant of those cases. Legislation passed by the Virginia General Assembly with respect to property is discussed in Part II of this article.

The Rtc: A Practical Guide To The Receivership/Conservatorship Process And The Resolution Of Failed Thrifts, Vicki O. Tucker, Patti G. Meire, Phyllis M. Rubinstein

University of Richmond Law Review

In response to a growing crisis in the thrift industry, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA" or "Act"). The crisis was evidenced by the failure of over 500 thrifts between 1980 and 1988-more than three and one-half times as many in the previous forty-five years combined. In 1988 alone, the Federal Savings and Loan Insurance Corporation ("FSLIC," which prior to FIRREA insured most of the thrift industry's deposits) merged or liquidated over 200 insolvent thrifts, and the U.S. Government's General Accounting Office ("GAO") estimated in 1989 that at least 338 additional thrifts were …

The Surrogate Mother Contract: In The Best Interests Of Society?, Audrey Wolfson Latourette

University of Richmond Law Review

On March 31, 1987, Judge Harvey R. Sorkow upheld, for the first time, the validity of a surrogate mother-contract in his decision, In the Matter of Baby M. In broad and sweeping language, the judge deemed the contract between the natural mother, Mary Beth Whitehead, (termed the surrogate, pursuant to the contract language) and the natural father, William Stern, specifically enforceable. Judge Sorkow thus terminated Whitehead's parental rights to the child she bore and permanently denied her claims for future custody or future visitation. Creating new law, the judge held that baby selling and adoption laws do not pertain to …

Substantial Connection And The Illusive Facilitation Element For Civil Forfeiture Of Narcoband In Drug Felony Cases, Steven S. Biss

University of Richmond Law Review

When Stanford Bradshaw returned home from the mall, Halifax County, Virginia, police officers arrested him for possession of cocaine. A subsequent search of his residence produced forty-nine grams of cocaine, a set of scales and a little over $17,000 in cash stuffed in a bank bag. Bradshaw was a cocaine addict who occasionally sold drugs from his house. Although he knew he had committed a serious crime, Bradshaw did not imagine the ultimate consequence of his criminal activity. The Commonwealth's Attorney seized Bradshaw's house and instituted forfeiture proceedings: the most powerful weapon in its arsenal. As a result of his …

Enterprise Zones: A Decade Of Diversity, Michael Allan Wolf

Law Faculty Publications

A full decade has passed since Enterprise Zones (EZs) were first proposed as a program to help revive the most depressed pockets of America's cities and towns. Activity on the federal level pales in comparison to the impressive variety of approaches found in states throughout the country. In this "second generation of enterprise zones" --that is, state zones in operation-we can observe some marked shifts away from original EZ theory, some impressive and innovative techniques, and some glaring weaknesses. The agenda for the next few years, as American EZs continue to evolve (perhaps complemented soon by a substantive federal program), …

A Tribute To Nina R. Kestin, Daniel T. Murphy

University of Richmond Law Review

The University of Richmond Law Review respectfully dedicates this issue to the memory of Professor Nina R. Kestin, 1947-1989. Professor Kestin earned her law degree and masters degree in taxation from New York University. She practiced law in New York for several years before joining the faculty of the T.C. Williams School of Law here in 1976. Many students learned their tax law and professional responsibility principles from her during her 13 years of teaching. But Professor Kestin taught her colleagues and students much more than the law.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

The Misappropriation Theory: A Practical Means Of Imposing Rule 10b-5 Liability, Christine Marra

University of Richmond Law Review

The degree of insider trading has intensified in recent years. This intensification is partially due to the current law's failure to provide a clear standard for imposing liability. Rule 10b-5, formulated by the Securities and Exchange Commission (SEC) to implement section 10(b) of the Securities Exchange Act of 1934, does not contain a clear definition of insider trading. The courts have struggled to define the scope of 10b-5; the leading case law demonstrates the difficulty courts have had determining what constitutes insider trading.

At-Will Employment: Going, Going, Cheryl S. Massingale

University of Richmond Law Review

The doctrine of at-will employment is undergoing serious erosion. At-will employment has traditionally meant that either party in an employment relationship is free to terminate employment at any time for any reason. In recent years, however, court rulings have created many exceptions to the at-will rule, and the current status of the doctrine offers little certainty as to whether a particular dismissal decision will result in liability for wrongful termination.

Steering Away From The Arbitration Process: Recognizing State Law Tort Actions For Unionized Employees, David C. Gardiner Jr.

University of Richmond Law Review

When an employer and a labor union negotiate over an employment contract, their agreements are usually set forth in a collective bargaining agreement. The collective bargaining agreement defines the relationship between the employer and the unionized employees and addresses such matters as wages, hours, and other conditions of employment. Additionally, collective bargaining agreements usually include grievance procedures and arbitration clauses to resolve disputes between the employer and the unionized employees.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Response To Legal Issues Affecting Local Governments In Implementing The Chesapeake Bay Preservation Act, W. Taylor Murphy Jr., Michael Mckenney

University of Richmond Law Review

The article Legal Issues Affecting Local Governments in Implementing the Chesapeake Bay Preservation Act (Legal Issues or "the article") adds measurably to the growing literature on the Chesapeake Bay Preservation Act ("the Act") and offers a significant amount of historical background. However, inasmuch as the article attempts to ascribe certain areas of legislative intent on the part of the General Assembly in adopting the Act that the authors of this comment believe are inaccurate, this comment will attempt to clarify those areas of legislative and regulatory intent. Additionally, this comment will discuss the regulatory development process of the Chesapeake Bay …

Whose Beneficiaries Are They Anyway? Copenhaver V. Rogers And The Attorney's Contract To Prepare A Will In Virginia, Brian Adams

University of Richmond Law Review

In a case of first impression in the Commonwealth, the Supreme Court of Virginia recently considered whether an attorney may be liable for drafting a will which results in the failure of a testamentary gift to intended beneficiaries. Historically, will beneficiaries had been denied a means of recovery against attorneys due to a lack of privity between the parties. Although Virginia remains a "strict privity' jurisdiction, it recognizes third-party contract beneficiary claims' and has legislatively abrogated the privity requirement in other areas of the law. The plaintiffs in Copenhaver v. Rogers sought to establish a third-party beneficiary claim as the …

State Action Under The Religion Clauses: Neutral In Result Or Neutral In Treatment?, David K. Dewolf

University of Richmond Law Review

The United States Supreme Court's treatment of the first amendment's religion clauses over the last fifty years has generated considerable controversy. While few religion clause cases reached the Supreme Court prior to 1940, the number steadily multiplied once the first amendment was incorporated into the fourteenth amendment. The Court's doctrinal development was incremental and uncertain, but by 1971 the Court had developed a test for each of the religion clauses to evaluate the constitutionality of challenged state action. Although these tests have not been followed with perfect fidelity, they have been the starting point for virtually all of the religion …

Annual Survey Of Virginia Law: Administrative Procedure, Charles H. Carrathers Iii.

University of Richmond Law Review

This article covers all changes made to the Virginia Administrative Process Act ("VAPA") during the 1990 session of the General Assembly. It also covers selected Supreme Court of Virginia cases dealing with administrative procedure, together with selected reported cases from the Court of Appeals of Virginia and Virginia circuit courts. Two cases decided by federal district courts sitting in Virginia that involve issues related to Virginia administrative procedure also are discussed. The cases reviewed in this article were decided between May 1989 and June 1990.

The Doctrine Of Charitable Immunity: Alive And Well In Virginia, Michelle Redavid Rack

University of Richmond Law Review

Until recent years, the doctrine of charitable immunity was believed by many Virginia practitioners to be an archaic defense limited to charitable hospitals. This belief likely arose out of the fact that until 1988 every Supreme Court of Virginia case addressing the doctrine involved its application to hospitals. The Court of Appeals for the Fourth Circuit, applying Virginia law, broadened the doctrine over the years by extending charitable immunity to a nonprofit college, a confederate memorial association, and an historical church. However, the scope of charitable immunity remained virtually untested in the Supreme Court of Virginia until the recent cases …

Annual Survey Of Virginia Law: Employment Law, Keith D. Boyette, Robert T. Billingsley

University of Richmond Law Review

This survey article covers judicial developments in Virginia employment law between June 1989 and June 1990. The survey does not address developments in the areas of workers' compensation or unemployment compensation.

Annual Survey Of Virginia Law: Evidence, Charles E. Friend

University of Richmond Law Review

The past year has brought a variety of appellate court decisions (and a few legislative actions) in the evidence area. Some of these are merely affirmations of well-established principles; others answer questions about evidence law which have troubled lawyers and judges in the Commonwealth for some time. And, inevitably, some of them raise questions in areas once thought to be definite and certain.