Law Commons^™

Museletter: Fall 1995, Allen Moye

Museletter

Table of Contents:

Majority of Students On-Line

Fall Break Hours

Who's Who in the Library

Circulation

History of the Net

Glossary of Internet Jargon

Richmond Law Magazine: Summer 1995

Richmond Law Magazine

Features:

The Harbaugh Years

Tribute

124th Commencement

The Mattox Debate

The Emroch Lecture

Special Issues In Bioethics And The Law, Alexander Morgan Capron, Elizabeth Loftus, David Orentlicher, Daniel Callahan

University of Richmond Law Review Symposium

"Genetics and Insurance Discrimination" lecture given by Alexander Morgan Capron, Henry W. Bruce University Professor of Law and Medicine, Co-Director of the Pacific Center for Health Policy and Ethics at University of Southern California.

"The Repression of Memory Controversy" lecture given by Elizabeth Loftus, Professor of Psychology and Adjunct Professor Law at the University of Washington, Seattle.

"Healthcare Reform: Threats to the Patient/Physician Relationship" lecture given by David Orentlicher, Director of the Division of Medical Ethics at the American Medical Association.

"Healthcare and Medical Progress: Can We Afford It?" lecture given by Daniel Callahan, Co-Founder and President of the Hastings …

Contracts, Copyright And Preemption In A Digital World, I Trotter Hardy

Richmond Journal of Law & Technology

Copyright is designed to provide some form of protection against unauthorized use of original informational materials. The rapid shift of information production and distribution to electronic form, with its corresponding ease of copying, naturally makes copyright-dependent industries nervous. Much talk in the news and on the "net" these days is about the future of copyright law, a law developed in an age of print and now perhaps too tied to that medium to have ready application to today's information technology.

Letter From The Editor, Richard P. Klau

Richmond Journal of Law & Technology

Over the last eight months, several people have asked why we decided to publish The Journal exclusively online. These concerns are not insignificant -- any embrace of a new technology should be made without blinders on. We were excited by the possibilities of publishing online, but the fears that we would not be taken seriously were very real. These fears have, however, been overcome by the enthusiasm which has greeted The Journal.

Overreaching Provisions In Software License Agreements, Michael Liberman

Richmond Journal of Law & Technology

Historically, software license agreements emerged as the most popular means of protection of proprietary rights in computer software. As a common form of contract and trade secret protection, software licenses coexist with other forms of intellectual property rights such as patent and copyright. The importance of these forms of protection has recently increased. Where the licensor fails to consider the implications of the relation between these forms of protection, the licensor's attempts to maximize contractual protection while restricting the licensee's activities regarding the licensed software may result in overreaching. Under these circumstances, a court may invalidate the license agreement in …

Apple V. Microsoft: Virtual Identity In The Gui Wars, Joseph Myers

Richmond Journal of Law & Technology

The company that controls the interface of the next major operating system will have the ability to set the standards for application software. It was not surprising that Apple Corporation began its fight to stop Windows from being that major operating system after Microsoft Corporation introduced the various versions of its Windows software and announced plans for this program to replace the already widely selling DOS operating system. Unfortunately, Apple chose to conduct this war on the complex and often confusing battleground of copyright law, which ultimately proved to be its downfall.

Dr. Mudd And The Lincoln Assassination: The Case Reopened, John Paul Jones

Law Faculty Publications

No abstract provided.

Fourth Circuit Finds University Of Maryland Minority Scholarship Program Unconstitutional, Podberesky V. Kirwan, 38 F.3d 147 (4th Cir. 1994), Kimberly J. Robinson

Law Faculty Publications

The use of minority scholarships to create a diverse student body and to remedy past discrimination has been the subject of considerable controversy in recent years. Although such scholarships constitute a small percentage of financial aid for higher education, opponents of minority scholarships argue that they unfairly discriminate against non-minority students on the basis of race. In Podberesky v. Kirwan, the Fourth Circuit held that the University of Maryland at College Park (UMCP) denied Daniel Podberesky, a Hispanic/white student, equal protection of the laws by excluding him from consideration for the race-based Benjamin Banneker Scholarship Program. The program, the court …

Judge William W. Schwarzer And Automatic Disclosure, Carl W. Tobias

Law Faculty Publications

Tribute to Senior United States District Judge William W. Schwarzer upon his retirement as Director of the Federal Judicial Center.

Refining The Government Relations Program: The Final Report Of The Task Force On Aall's Government Relations Activities, Timothy L. Coggins

Law Faculty Publications

During the summer of 1993, Kay Todd, President Elect of the American Association of Law Libraries, named a special task force to review the Association's government relations activities, presenting it with a goal of achieving a better coordination of such activities. The charges to the Task Force on AALL's Government Relations Activities and the processes that the Task Force utilized in fulfilling these charges are outlined in the final and interim reports of the Task Force, which follow this introduction. The Interim Report of the Task Force was submitted to the AALL Executive Board prior to its April 1994 meeting …

The Impoverished Idea Of Circuit-Splitting, Carl W. Tobias

Law Faculty Publications

Senators representing every state in the latest iteration of the projected Twelfth Circuit recently revived the idea by introducing Senate Bill 956, a proposal that closely resembles a measure debated by Congress in 1990. The new bill's sponsors contend that certain factors, principally the Ninth Circuit's substantial size and burgeoning docket, have now made division of the court imperative.

This Article initially describes the origins and development of the proposed legislation. It then assesses the measure and arguments for and against dividing the Ninth Circuit. I find that there is no greater need for bifurcation now than before and that …

Much Ado About Nothing: Achieving "Essential" Negotiability In An Electronic Environment, David Frisch

Law Faculty Publications

The approach adopted here is both historical and analytical. Part II of this Article describes the historical development of assignment law, and demonstrates that it parallels a more general shift of the law away from physical conceptions of property. It concludes that although a paper-based document may still be a practical requirement, there is no longer a valid theoretical justification for not making the law of negotiable instruments media neutral. In Part III we survey the features of negotiable instrument law and compare it generally with the law of assignments. This comparison suggests that the most striking substantive difference between …

Extending The Civil Justice Reform Act Of 1990, Carl W. Tobias

Law Faculty Publications

The passage of the Judicial Amendments act of 1994 postponed several key implementation deadlines prescribed by the Civil Justice Reform Act (CJRA) of 1990. Perhaps most significantly, the new legislation extends for one year the mid-1995 date when the RAND Corporation, which is studying ten pilot districts' experimentation with cost and delay reduction procedures, must submit its conclusions to the Judicial Conference of the United States. Numerous compelling arguments supported congressional postponement of this deadline. Most importantly, the RAND Corporation can now capture much additional data, which are critical to assessing accurately the procedures' effectiveness in decreasing expense and delay, …

The Last-In-Time Marriage Presumption, Peter N. Swisher

Law Faculty Publications

The typical scenario for the last-in-time marriage presumption is not as unusual as one might expect: A husband (or wife) has unexpectedly died, and the bereaved surviving spouse is in the process of bringing a legal proceeding that may include a probate action, a wrongful death action, a suit for social security benefits, a workers' compensation action, a life insurance action, or another legal action for related compensatory, probate, or insurance benefits. However, during the pendency of these actions a former wife comes forward, claiming that she has never been divorced from her deceased spouse and that she, rather than …

The Business Of The Supreme Court Revisited, John Paul Jones

Law Faculty Publications

Nearly seventy years after its publication, Prof. Jones revisits Felix Frankfurter and James McCauley Landis' seminal 1928 book.

Manuscript Selection Anti-Manifesto, Carl W. Tobias

Law Faculty Publications

Joining a conversation begun by James Lindgren, An Author's Manifesto, 61 U. Chi. L. Rev. 527 (1994), Prof. Tobias discusses the process of submission, review, and editorial work on articles published in student-edited law reviews.

An Author's Manifesto (Manifesto) constructively criticizes the amazingly arcane process of law review publication and affords salient suggestions for its improvement. The essay treats two aspects of this process-the selection of manuscripts and the editing of articles which sustain that venerable institution: student-edited law journals. Manifesto regales readers with many terrible tales of travesties which involve article editing but recounts comparatively few sordid stories that …

Common Sense And Other Legal Reforms, Carl W. Tobias

Law Faculty Publications

Enactment of Congress' proposed Common Sense Legal Reforms Act (CSLRA) would impose procedural and substantive reforms that could significantly affect much federal civil litigation and could have substantial systemic impacts on the civil justice process. For instance, the measure's advocates drafted and introduced the proposed legislation with little apparent appreciation for how it might conflict with a number of ongoing public and private reform initiatives, such as an earlier Congress's Civil Justice Reform Act of 1990 and the American Law Institute's efforts to adopt a Third Restatement of Torts governing products liability.

The bill's enactment, therefore, could additionally complicate the …

Introduction: Policy In The Wake Of The Kepone Incident, Joel B. Eisen

Law Faculty Publications

The goal of this panel was to examine the policies formed in the wake of the Kepone incident: the environmental laws, the regulations and policies that are designed to safeguard our natural resources to ensure that incidents such as the Kepone incident do not reoccur and if they do, to hold those responsible for environmental damage accountable for their actions.

Resolving Still Unresolved Issues Of Bankruptcy Law: A Fence Or An Ambulance, David G. Epstein

Law Faculty Publications

Congress established a Bankruptcy Review Commission ("'Commission") when it enacted the Bankruptcy Reform Act of 1994. Although the Commission is empowered to review the Bankruptcy Code and make recommendations based upon its findings and conclusions, its focus is directed toward making suggestions that do not disturb the fundamental principles and balance of current law. Instead, the stated purposes of the Commission are: ( 1) to investigate and study issues and problems relating to title 11, United States Code (commonly known as the "'Bankruptcy Code"); (2) to evaluate the advisability of proposals and current arrangements with respect to such issues and …

Suggestions For Circuit Court Review Of Local Procedures, Carl W. Tobias

Law Faculty Publications

During the 1980s, both the Judicial Conference of the United States, which is the policy-making arm of the federal courts, and Congress evinced increasing concern about the proliferation of local civil procedures, such as local rules and the procedures that individual judges apply The Judicial Conference and Congress were particularly troubled by those local procedural requirements that conflicted with the Federal Rules of Civil Procedure (Federal Rules) or provisions of the United States Code.

In 1986, the Judicial Conference commissioned the Local Rules Project to collect and organize all local rules, standing orders of individual judges, and other local procedural …

Automatic Disclosure And Disuniformity In The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

The 1993 amendment to Federal Rule of Civil Procedure 26(a)(1) imposes automatic disclosure and is the most controversial formal proposal to revise the Federal Rules ever developed. The provision requires litigants to divulge information that is important to their cases before commencing formal discovery. The amendment also permits all ninety-four federal districts to vary the revision or to reject it completely. Moreover, judges and parties in specific cases may modify any disclosure requirements adopted by the districts.

The amendment has remained controversial since it became effective on December 1, 1993. Less than a majority of districts subscribe to the Federal …

Participant Compensation In The Clinton Administration, Carl W. Tobias

Law Faculty Publications

A half-decade ago in the pages of this journal, I suggested that the Bush Administration, the federal administrative agencies, and Congress seriously consider revitalizing participant compensation. Participant compensation is the agency payment of expenses that members of the public incur when they are involved in administrative proceedings. Initiatives in the executive and legislative branches supported my recommendation that both branches revive this valuable mechanism for facilitating citizen participation in agency processes.

Much to my chagrin, the Bush Administration neither introduced legislation which would have specifically authorized participant compensation nor suggested that agencies rely on their implied authority to reimburse parties, …

A Salute To Judge William W. Schwarzer, Carl W. Tobias

Law Faculty Publications

Tribute to Senior United States District Judge William W. Schwarzer upon his retirement as Director of the Federal Judicial Center

An Update On The 1993 Federal Rules Amendments And The Montana Civil Rules, Carl W. Tobias

Law Faculty Publications

Professor Tobias' recommendations to the Montana Supreme Court regarding the newly amended F.R.C.P. Rules 11 and 26.

Northern Rockies Report On 1994 Natural Resources Legislation, Carl W. Tobias

Law Faculty Publications

I want to report on certain political developments in the Big Sky states which will help to illuminate why 1994 was such a dismal year for national legislation relating to Montana natural resources by emphasizing the ongoing wilderness debate. Representative Pat Williams (D-Mont.), who fist won election to the House of Representatives in 1978, developed, introduced and skillfully shepherded through the House a wilderness bill that would have created approximately 1.7 million acres of new wilderness. The legislation would also have released much land for multiple use, particularly for resource development, and would have designated considerable additional acreage for further …

The Judicial Amendments Act Of 1994, Carl W. Tobias, Margaret L. Sanner

Law Faculty Publications

This 1995 essay briefly examines the Judicial Amendments Act of 1994 in an attempt to familiarize federal court judges, lawyers and parties, as well as other individuals and entities that may be interested in the operations of the courts, with the enactment.

Richmond Law Magazine: Winter 1995

Richmond Law Magazine

Features:

The Information Superhighway

Well-Connected

Technology

Welcome To The Journal, David R. Johnson

Richmond Journal of Law & Technology

I applaud your decision to visit the Richmond Journal of Law & Technology. If you are a newbie, Welcome to Cyberspace! If a seasoned net surfer, then you fully appreciate that the number and complexity of the legal issues facing the net is growing every day.

Lawfutures, Or, Will You Still Need Me, Will You Still Feed Me, When I'M Sixty Four?, Stephen T. Maher

Richmond Journal of Law & Technology

I cannot imagine what it was like to practice law without a photocopy machine. In the first years of my practice, I received a few briefs typed the old fashioned way, on onion-skin paper with five sets of carbons in between. But since then, we have witnessed a continuing march of progress in information processing. From the mag card, to the memory typewriter, to the System 6, to the dedicated word processor, to the personal computer and now to the computer network, we have seen technology, when working correctly, providing tremendous assistance in meeting the demands of our busy lives. …