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Articles 181 - 203 of 203
Full-Text Articles in Law
Public Employee Speech, Categorical Balancing And § 1983: A Critique Of Garcetti V. Ceballos, Sheldon H. Nahmod
Public Employee Speech, Categorical Balancing And § 1983: A Critique Of Garcetti V. Ceballos, Sheldon H. Nahmod
University of Richmond Law Review
I propose to discuss Garcetti's First Amendment reasoning as well as the implications of the § 1983' setting in which Garcetti and other public employee free speech cases typically arise. After briefly setting out the Court's opinion and the three dissenting opinions, I begin by addressing the pros and cons of Garcetti, and in the course of so doing, I discuss the prior Pickering-Connick landscape that Garcetti so significantly altered. I consider the deeper First Amendment implications of Garcetti, including itsuse of categorical balancing to create an absolute immunity fromFirst Amendment liability for employer discipline based on job-required public employee …
Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee
Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee
University of Richmond Law Review
Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone's preferred moral vision for the limits, and compromises, that are implicit in and intended by the Constitution's text. He argues, moreover, that we can largely harmonizethe variousgoals of our constitutionalsystem by taking rights se- riously and by understanding that securing rights does not ex-haustthe Constitution'spurposes.
Indirect Infringement From A Tort Law Perspective, Charles W. Adams
Indirect Infringement From A Tort Law Perspective, Charles W. Adams
University of Richmond Law Review
No abstract provided.
My Two Cents Per Kilowatt-Hour: Virginia's Renewable Energy Portfolio Standard, Justin W. Curtis
My Two Cents Per Kilowatt-Hour: Virginia's Renewable Energy Portfolio Standard, Justin W. Curtis
University of Richmond Law Review
No abstract provided.
Friction By Design: The Necessary Contest Of State Judicial Power And Legislative Policymaking, Michael L. Buenger
Friction By Design: The Necessary Contest Of State Judicial Power And Legislative Policymaking, Michael L. Buenger
University of Richmond Law Review
No abstract provided.
Labor, Luck, And Love: Reconsidering The Sanctity Of Separate Property, Shari Motro
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, …
Richmond Law Magazine: Winter 2008
Richmond Law Magazine: Winter 2008
Richmond Law Magazine
Features:
New Faculty Excel
State of the Family
A Summer at Cambridge
Women Power
Expatriation, John Paul Jones
Expatriation, John Paul Jones
Law Faculty Publications
Encyclopedia article on expatriation
On Federalism, Freedom, And The Founders' View Of Retained Rights - A Reply To Randy Barnett, Kurt T. Lash
On Federalism, Freedom, And The Founders' View Of Retained Rights - A Reply To Randy Barnett, Kurt T. Lash
Law Faculty Publications
In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review, I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people's retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits …
The Original Meaning Of An Omission: The Tenth Amendment, Popular Sovereignty And “Expressly” Delegated Power, Kurt T. Lash
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 …
Right To An Attorney, Henry L. Chambers, Jr.
Right To An Attorney, Henry L. Chambers, Jr.
Law Faculty Publications
The Supreme Court has identified two distinct rights to an attorney that stem from the U.S. Constitution. One is rooted in the Fifth Amendment. The other is rooted in the Sixth and Fourteenth Amendments.
The French Intrigue Of James Cole Mountflorence, Jud Campbell
The French Intrigue Of James Cole Mountflorence, Jud Campbell
Law Faculty Publications
In July 1793, less than three months after President George Washington had declared the United States impartial toward the conflict raging in Europe, French Minister Edmond-Charles-Edouard Genet tested America's incipient neutrality. With instructions from his government, Genet armed a French privateer in Philadelphia and simultaneously launched an offensive against Spanish Louisiana using disaffected American pioneers. The episode began on July 5, when Genet shared the French plans for western invasion in a private meeting with Secretary of State Thomas Jefferson. Ten days later Genet's agents departed for Kentucky to rendezvous with American Revolutionary War hero George Rogers Clark. The effort, …
Family Model And Mystical Body: Witnessing Gender Through Political Metaphor In The Early Modern Nation-State, Allison Anna Tait
Family Model And Mystical Body: Witnessing Gender Through Political Metaphor In The Early Modern Nation-State, Allison Anna Tait
Law Faculty Publications
The preferred political metaphor in the constitutionalist context was the mystical political body, a concept that defined a system in which power was shared and the well-being of the community was linked to the well-being of the individual. Within the mystical political body, the theoretical possibility exists for women not only to occupy a civic space through organic (and organological) association but also to articulate their perspective and its consequences for the political community in a civically approved way. In the mystical body, women approach a citizenship status impossible within the traditional family framework and their witnessing is closely associated …
Fda Regulatory Compliance Reconsidered, Carl W. Tobias
Fda Regulatory Compliance Reconsidered, Carl W. Tobias
Law Faculty Publications
Many observers consider the Food and Drug Administration (FDA) vital for the protection of consumer health and safety. One hundred years ago, Congress established the entity that would become the FDA and authorized it to regulate foods and drugs, critical responsibilities that the agency has long discharged carefully. Throughout the past century, the FDA's regulatory power has expanded systematically, albeit gradually, while legislatures and courts in the fifty American jurisdictions broadened liability exposure for manufacturers that sold defective products that injured consumers. Observers have recently criticized the agency for overseeing pharmaceuticals too leniently, even as states increasingly narrowed manufacturers' liability …
Alternative State Remedies In Constitutional Torts, John F. Preis
Alternative State Remedies In Constitutional Torts, John F. Preis
Law Faculty Publications
In recent years, a subtle shift in constitutional tort doctrine has quietly begun to take root. In Bivens actions, the Supreme Court has recently implied that constitutional tort plaintiffs must seek relief under state law when it is available, rather than invoke their federal constitutional rights. This marks a dramatic change from past practices. For much of the twentieth century, a central premise in the constitutional tort field has been that the federal remedy is "supplementary" to the state remedy; constitutional tort plaintiffs have therefore been permitted to seek a remedy under federal law without regard to the availability of …
America’S Enduring Legacy: Segregated Housing And Segregated Schools, Jonathan K. Stubbs
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 …
Wills, Trusts And Estates (Annual Survey Of Virginia Law, 2006-2008), J. Rodney Johnson
Wills, Trusts And Estates (Annual Survey Of Virginia Law, 2006-2008), J. Rodney Johnson
Law Faculty Publications
The 2007 Session of the General Assembly enacted substantially more wills, trusts, and estates legislation than one typically expects, some of which was of a particularly significant nature, such as that (1) providing for the probate of wills not executed with the required statutory formalities; (2) preventing any future application of an unfortunate augmented estate decision of the Supreme Court of Virginia; (3) avoiding the impact of federal Employee Retirement Income Security Act of 1974 ("ERISA") preemption in certain insurance revocation and slayer statute cases; and (4) mandating notice to the public when modification or termination of a charitable trust, …
Proposed Legislation: A (Second) Modest Proposal To Protect Virginia Consumers Against Defective Products, Peter N. Swisher
Proposed Legislation: A (Second) Modest Proposal To Protect Virginia Consumers Against Defective Products, Peter N. Swisher
Law Faculty Publications
The purpose of this article is to suggest a viable, necessary, and eminently reasonable legislative alternative that the Virginia General Assembly should enact for legitimate and pressing public policy reasons in order to properly protect Virginia consumers from defective and unreasonably dangerous consumer products. Adopting this alternative would bring the Commonwealth of Virginia into the mainstream of twenty-first century American, and transnational, products liability law.
Reconsidering Virginia Judicial Selection, Carl W. Tobias
Reconsidering Virginia Judicial Selection, Carl W. Tobias
Law Faculty Publications
The 2008 Virginia General Assembly adjourned this summer without electing judges to vacancies on the State Corporation Commission (the "Commission" or "SCC"), the Supreme Court of Virginia, and numerous circuit courts. Thus, Democratic Governor Tim Kaine recently appointed individuals to fill these openings. Although the jurists whom the Governor appointed seem very well-qualified, the judges may only serve for five months, unless the 2009 General Assembly elects them. The 2008 Assembly's failure to elect judges for these vacancies demonstrates that the selection process is ineffective, and perhaps broken, as this development has eroded the delivery of justice and may have …
Plainly Wrong: The High Court Takes The Low Road, David E. Wilkins
Plainly Wrong: The High Court Takes The Low Road, David E. Wilkins
Jepson School of Leadership Studies articles, book chapters and other publications
The court's most recent salvo in the Long case is no exception. I wrote about this case in April in this paper when the court had just heard oral arguments. My column was titled "A Matter of Disrespect" because in reading the transcript of the oral arguments, it was plainly evident in the questions raised by Chief Justice John Roberts and Justice Antonin Scalia that they had very little respect for the legitimacy of tribal courts or their decisions.
The question that must be asked: Why are tribal courts treated differently than non-Indian courts? Not willing to confront this head-on, …
Indigenous Self-Determination: A Global Perspective, David E. Wilkins
Indigenous Self-Determination: A Global Perspective, David E. Wilkins
Jepson School of Leadership Studies articles, book chapters and other publications
The concepts of self-determination and sovereignty, from an Indigenous perspective, embrace values, attitudes, perspectives, and actions. Of course, as a result of the historical phenomenon known as colonialism, in which expansive European states sought to dominate the rights, resources, and lands of aboriginal people worldwide, one cannot discuss Indigenous self-determination and sovereignty without some corresponding discussion of how states and their policy makers understand these politically charged terms as well.
I have been thinking, acting, researching, and writing on these two vital concepts, intergovernmental relations, critical legal theory, and comparative Indigenous politics for nearly two decades. Along with this, I …