Law Commons^™

Solving Your Ethical Conundrums: Researching The Rules Of Professional Conduct, Joyce Manna Janto

Law Faculty Publications

Ms. Janto provides a practical guide to researching issues of attorney professional responsibilities using both print and online resources, emphasizing Virginia rules and decisions.

Law Libraries And Options Galore, Gail F. Zwirner

Law Faculty Publications

Ms. Zwirner outlines some of the challenges facing the researcher in deciding which resources to use in pursuing information, and makes a case for the continued value of professional law librarians' insight and experience for assisting in these pursuits.

Virginia Cle Sources: Important Practitioner Tools For Forty Years, Gail F. Zwirner

Law Faculty Publications

Observing the 40th anniversary of the Virginia Law Foundation, Ms. Zwirner highlights some of the foundation's continuing legal education publications of frequent value to practitioners.

This article focuses primarily on the deskbook sources that are the go-to materials in many subject areas for Virginia practitioners. The publisher offers all these sources on CD, USB, or downloads. The titles include the forms that practitioners savor as good starting points for their clients’ needs. These forms account for many reference desk success stories for practitioners who rely on Gouldman’s Virginia Forms and are disappointed when that group does not provide the specificity …

Grave Injustice: Unearthing Wrongful Executions, Mary Kelly Tate

Law Faculty Publications

This book review discusses Richard A. Stack's book, Grave Injustice, which illustrates the flaws in America's use of capital punishment. "Simply put, the death penalty is shown to be a massive policy failure diminishing the legitimacy of the criminal justice system in the world's leading democracy. Stack uses his reportorial skills to distill the complex subject of the American death penalty into a digestible form, yet he never cuts corners with the human dimension. This dimension is always at the center of crime and punishment and, most hauntingly, at the center of the American death penalty and its tragic …

Using Experiential Education To Develop Human Resources For The Nonprofit Community: A Course Study Analysis, Ann C. Hodges

Law Faculty Publications

In this era of shrinking resources and increased pressure to produce "practice-ready" lawyers, law schools are seeking new and cost-effective ways to provide experiential education. This article reports and analyzes the results of a survey of graduates and students from a course in Nonprofit Organizations that incorporated a community-based project designed to develop skills, enhance learning and encourage post-graduation involvement with nonprofits. Although limited to one course, this course study, like a case study, offers valuable information. Consistent with other research on experiential education, the survey supports the conclusion that such projects, while less resource intensive and comprehensive than clinics, …

Death Penalty Drugs: A Prescription That's Getting Harder To Fill, Corinna Barrett Lain

Law Faculty Publications

Six states have abolished the death penalty in the past six years—Illinois, New York, New Jersey, Connecticut, Maryland, and New Mexico. We haven’t seen mass moves like that since the 1960s. What gives?

Part of the answer is that those states weren’t executing anyway. More people in those states were dying on death row waiting to be executed than were actually being executed, and the death penalty is breathtakingly expensive to maintain (a point to which I’ll return in a moment).

So why weren’t the states executing? We tend to hear about innocence claims, trench warfare litigation, official moratoriums, study …

Vertical Boilerplate, James Gibson

Law Faculty Publications

Despite what we learn in law school about the “meeting of the minds,” most contracts are merely boilerplate—take-it-or-leave-it propositions. Negotiation is nonexistent; we rely on our collective market power as consumers to regulate contracts’ content. But boilerplate imposes certain information costs because it often arrives late in the transaction and is hard to understand. If those costs get too high, then the market mechanism fails. So how high are boilerplate’s information costs? A few studies have attempted to measure them, but they all use a “horizontal” approach—i.e., they sample a single stratum of boilerplate and assume that it represents the …

The Oath: The Obama White House And The Supreme Court By Jeffrey Toobin (Book Review), John Paul Jones

Law Faculty Publications

For anyone with an interest in the politics of courts, Jeffrey Toobin’s The Oath is a good read. Laypersons might see it as a busman’s holiday for lawyers working in American appellate courts, but NAACA members surely appreciate more than most how unique a judicial institution is the Supreme Court of the United States. Thus, there is much to which those working backstage in other venues can relate, but much more offering them frissons of the unusual.

Education & Practice (Newsletter Of The Section On Education Of Lawyer, Virginia State Bar) - V. 21, No. 1 (Spring 2013), Dale Margolin Cecka

Law Faculty Publications

Contents

Changing the Dynamics of Legal Education: Now What About that “Professional Responsibility” Class?, by Leslie Haley, Esq., founder of Haley Law PLC in Midlothian, VA.

Chair’s Column, Professor A. Benjamin Spencer of Washington and Lee School of Law

Work of the ABA’s Standards Review Committee, by Thomas Edmonds, Distinguished Visiting Professor at Charleston School of Law.

William R. Rakes Leadership in Education Award

Law Faculty News

News and Events Around the Commonwealth

Section’s Website Update

2012-2013 Board of Governors

Union Dues In The Public Sector: Legislative Changes And Legal Challenges, Ann C. Hodges

Law Faculty Publications

The economic crisis that began in 2008 led many states and localities to look for ways to reduce labor costs, which form a substantial portion of government budgets. Some state legislatures focused on collective bargaining laws, with Wisconsin being the most high profile example. Along with the restrictions on bargaining, a number of states moved to limit the collection of union dues. The limitations were not across the board, but primarily directed at either political expenditures of unions or at particular unions, most commonly education unions. Not surprisingly, the laws enacted were immediately subjected to legal challenge sinceunions, like every …

Inkblot: The Ninth Amendment As Textual Justification For Judicial Enforcement Of The Right To Privacy, Kurt T. Lash

Law Faculty Publications

One of the more indelible moments in late twentieth century legal discourse occurred when Judge Robert Bork described the proper response of a judge confronted with the Ninth Amendment. Nominated to replace retiring Supreme Court Justice Lewis Powell, Judge Bork appeared before the Senate Judiciary Committee and declared that courts had no business enforcing the mysterious clause at all. Given the scarcity of historical evidence regarding the original meaning of the amendment, using the Ninth Amendment to strike down a law would say more about the predilections of the judge than the requirements of the text. Here is the famous …

The Top Three Copyright Cases Of 2012, James Gibson

Law Faculty Publications

In my last entry in this series, I examined three important patent law cases from 2012 – one at the Supreme Court level, one at the appellate level, and one at the trial court level. I’ll now do the same thing with regard to copyright cases.

My Supreme Court choice is Golan v. Holder, in which the Court upheld a statute that restored U.S. copyright protection to certain foreign works, thus removing them from the public domain. Such works had lost their protection – or had never acquired it in the first place – because of their failure to comply …

In Defense Of Implied Injunctive Relief In Constitutional Cases, John F. Preis

Law Faculty Publications

If Congress has neither authorized nor prohibited a suit to enforce the Constitution, may the federal courts create one nonetheless? At present, the answer mostly turns on the form of relief sought: if the plaintiff seeks damages, the Supreme Court will normally refuse relief unless Congress has specifically authorized it; in contrast, if the plaintiff seeks an injunction, the Court will refuse relief only if Congress has specifically barred it. These contradictory approaches naturally invite arguments for reform. Two common arguments-one based on the historical relationship between law and equity and the other based on separation of powers principles--could quite …

Mass Tort Claims In International Investment Proceedings: What Are The Lessons From The Ecuador-Chevron Dispute?, Chiara Giorgetti

Law Faculty Publications

In parallel to the La go Agrio and Aguinda litigations in the U.S. and Ecuadorian proceedings that have been discussed already,l the Chevron dispute includes an international dimension that presents equally complex and important challenges, but focuses on very different issues and involves different parties. My remarks introduce these international proceedings first to explain the different actions taken by the parties in different forums. I then assess the viability of international dispute resolution mechanisms for mass tort claims in general, before considering more specifically whether they can provide sufficient redress to mass tort claimants. Finally, I briefly introduce alternative dispute …

Foreign And International Legal Research, Maureen Moran

Law Faculty Publications

As you have been learning, the American legal system is only one of hundreds in the world. Each of those legal systems has its own rules, sources, and authorities. But these systems do not exist in a vacuum. What rules govern when two or more States or entities interact? What are the enforcement mechanisms? The study of these questions comprises the fields of foreign law and international law. The purpose of this chapter is not to give you a comprehensive review of all the resources available for researching this vast field of law. Rather, the goal is to give you …

Bank Recapitalizations: A Comparative Perspective, Da Lin

Law Faculty Publications

We have been here before. No matter how different the latest financial frenzy or crisis always appears, there are usually remarkable similarities with past experience from other countries and from history.

Constructing Courts: Architecture, The Ideology Of Judging, And The Public Sphere, Allison Anna Tait

Law Faculty Publications

In several countries, governments have embarked on major building expansion programs for their judiciaries. The new buildings posit the courtroom as their center and the judge as that room’s pivot. These contemporary projects follow the didactic path laid out in Medieval and Renaissance town halls, which repeatedly deployed symbolism in efforts to shape norms. Dramatic depictions then reminded judges to be loyal subjects of the state. In contrast, modern buildings narrate not only the independence of judges but also the dominion of judges, insulated from the state. The significant allocation of public funds reflects the prestige accorded to courts by …

Harry L. Carrico And The Ideal Of The Lawyer-Statesman, Wendy Collins Perdue

Law Faculty Publications

“Professionalism.” This is a word that will always be associated with Justice Carrico—not only because he was a consummate professional himself, but also because he was dedicated to assuring that all lawyers understood the full ethical, social, and behavioral implications of their role as lawyers. Under his leadership, Virginia became the first state to require all newly-admitted lawyers to take a day-long course in professionalism. It is a model that has been widely emulated around the country.

Tribute To Chief Justice Harry L. Carrico, John G. Douglass

Law Faculty Publications

An insightful personal perspective of Chief Justice Harry L. Carrico by Professor John G. Douglass.

Warriors, Machismo, And Jockstraps: Sexually Exploitative Athletic Hazing And Title Ix In The Public School Locker Room, Susan P. Stuart

Law Faculty Publications

Sexually exploitative athletic hazing on boys’ athletic teams is an increasingly frequent feature in the news. The physical and psychological abuse of younger team members by those who are more senior is not just humiliating but dangerous. Indeed, some athletes are charged with crimes that are committed during hazing activities. More to the point, the features of sexually exploitative hazing have all the earmarks of sexual harassment when team leaders use sexual assaults to keep younger members in their place by feminizing them or otherwise challenging their ability to conform to a hegemonic masculine sports stereotype. Athletic hazing’s part in …

On The Conflation Of The State Secrets Privilege And The Totten Doctrine, D. A. Jeremy Telman

Law Faculty Publications

The state secrets privilege (SSP) has become a major hindrance to litigation that seeks to challenge abuses of executive power in the context of the War on Terror. The Supreme Court first embraced and gave shape to the SSP as an evidentiary privilege in a 1953 case, United States v. Reynolds. Increasingly, the government relies on the SSP to seek pre-discovery dismissal of suits alleging torts and constitutional violations by the government. Lower federal courts have permitted such pre-discovery dismissal because they have confused the SSP with a non-justiciability doctrine derived from an 1875 case, Totten v. United States …

Post-Crisis Reconsideration Of Federal Court Reform, David R. Cleveland

Law Faculty Publications

No abstract provided.

Understanding Duties And Conflicts Of Interest--A Guide For The Honorable Agent, Linda S. Whitton

Law Faculty Publications

This article examines the importance of understanding agent duties and conflicts of interest, both for drafting a power of attorney that meets a principal’s objectives and for providing guidance to the agent who will act under its authority. Professor Whitton suggests that current custom and practice with respect to powers of attorney often overlooks the need to adjust agent duties to accommodate the principal’s expectations, thus resulting in inadvertent conflicts between the duty to do what the principal expects and default duties of loyalty. The article offers practical guidelines for identifying and reconciling these conflicts, as well as best practices …

All Roads Lead From Vietnam To Your Home Town: How Veterans Have Become Casualties Of The War On Drugs, Susan Stuart

Law Faculty Publications

No abstract provided.

A National "Natural" Standard For Food Labeling, Nicole E. Negowetti

Law Faculty Publications

No abstract provided.

Justice For All: Reimagining The Internal Revenue Service, David J. Herzig

Law Faculty Publications

The ability of the Internal Revenue Service to both collect the tax and enforce the initial determination of tax liability in a neutral and fair manner has been compromised by a February 2011 pronouncement issued by the Department of Justice stating that the President and the Department of Justice believe that section 3 of the Defense of Marriage Act is unconstitutional and that the Department of Justice will no longer defend the statute in courts. The pronouncement results in a disparate treatment of similar taxpayers based solely on the forum of litigation. Through this lens, I examine whether it is …

Persons Who Are Not The People: The Changing Rights Of Immigrants In The United States, Geoffrey Heeren

Law Faculty Publications

Non-citizens have fared best in recent Supreme Court cases by piggybacking on federal rights when the actions of states are at issue, or by criticizing agency rationality when federal action is at issue. These two themes-federalism and agency skepticism-have proven in recent years to be more effective litigation frameworks than some individual rights-based theories like equal protection. This marks a substantial shift from the Burger Court era, when similar cases were more likely to be litigated and won on equal protection than on preemption or Administrative Procedure Act theories. This Article describes this shift, considers the reasons for it, and …

A Monist Supremacy Clause And A Dualistic Supreme Court: The Status Of Treaty Law As U.S. Law, D. A. Jeremy Telman

Law Faculty Publications

Hans Kelsen identified three possible relationships between the international and domestic legal orders. Dualism understands the international and domestic legal orders as separate and independent. Monism describes a single and comprehensive legal order but can operate with either domestic law or international law as a higher order law. Like many domestic legal orders, that of the United States has never fully worked out which of these three options specifies the status of international law in its domestic legal order. While the text of the United States Constitution suggests a form of monism in which international law is automatically part of …

Canines (And Cats!) In Correctional Institutions: Legal And Ethical Issues Relating To Companion Animal Programs, Rebecca Huss

Law Faculty Publications

No abstract provided.

Substantive Due Process In Exile: The Supreme Court's Original Interpretation Of The Due Process Clause Of The Fourteenth Amendment, Natalie Banta

Law Faculty Publications

No abstract provided.