Courts Commons^™

Taft, Frankfurter, And The First Presidential For-Cause Removal, Aditya Bamzai

University of Richmond Law Review

In the fall of 1912—while one of the most consequential presidential campaigns in United States history raged around them— William Howard Taft, Felix Frankfurter, and a handful of officials within the federal government initiated a process to remove two members of the Board of General Appraisers (“Board”) for inefficiency, neglect of duty, and malfeasance in office. The process culminated in President Taft’s for-cause dismissal of the two members, Thaddeus Sharretts and Roy Chamberlain, on the very last day that he served as President, after he received a report recommending their firing from a “committee of inquiry” that included Frankfurter.

Rethinking Bail Reform, Wendy R. Calaway, Jennifer M. Kinsley

University of Richmond Law Review

The issue of pretrial detention is part of a larger, national conversation on criminal justice reform. However, no single issue permeates the landscape of criminal justice like the treatment of pretrial defendants. The policies and practices around pretrial detention have contributed to the country’s mass incarceration numbers; created a crisis for local jail management; generated unsustainable budgets; and raised important questions about race, class, and the constitutional implications of incarcerating people because they are too poor to pay a money bond. Legal scholars have written about the issue, highlighting the inequities and constitutional difficulties with such a system. Much of …

Free Exercise And Comer: Robust Entrenchment Or Simply More Of A Muddle?, Mark Strasser

University of Richmond Law Review

Several states are barred by their own constitutions from spending public monies in support of sectarian institutions. The United States Supreme Court has manifested great ambivalence about the constitutionality of such limitations. Sometimes, the Court has impliedly endorsed them as a reasonable measure to assure that Establishment Clause guarantees are respected. At other times, the Court has suggested that such limitations are constitutionally disfavored, although the Court has not yet held that such amendments are per se unconstitutional. The Court’s most recent decision addressing state constitutional spending limitations, Trinity Lutheran Church of Columbia, Inc. v. Comer, adds another layer of …

Rapid Dna Testing And Virginia's Rape Kit Backlog: A Double-Edged Sword Masquerading As A Miracle, Or The Future Of Forensic Analysis?, Emma C. Greger

University of Richmond Law Review

While Rapid DNA technology has the potential to revolutionize every aspect of the criminal justice system, from arrest to the postconviction appeals process, there has been particular excitement centered around its potential to reduce the rape kit backlog.

Non-Contact Excessive Force By Police: Is That Really A Thing?, Michael J. Jacobsma

University of Richmond Law Review

When people hear the words “police” and “excessive force,” they usually associate those words with an unjustified assault and battery, or lethal force made against suspects by law enforcement officers during an arrest or investigation. When such acts occur, the victim of the excessive force has the right to pursue a civil action against the police officer pursuant to 42 U.S.C. § 1983 if committed by state or local police, or a Bivens action if committed by federal agents. But can a police officer be sued for excessive force without making any physical contact with the plaintiff? The answer to …

Judge Merhige's Environmental Decisions: Expert Handling Of Groundbreaking Environmental Rulings And Complex Federal Jurisdictional Questions, Jim Vines

University of Richmond Law Review

It is a special privilege for me to contribute to this edition of the University of Richmond Law Review honoring Judge Robert R. Merhige, Jr. Here, I seek to highlight his contributions to United States environmental law. In 1988 and 1989, I was one of two recent law school graduates who clerked for Judge Merhige (“please call me by my first name; it’s ‘Judge’”). The Judge was a larger than life figure. As a federal trial judge, historically important and intellectually challenging cases seemed to find their way into his court in a volume not matched in many other federal …

The #Metoo Movement: An Invitation For Feminist Critique Of Rape Crisis Framing, Jamie R. Abrams

University of Richmond Law Review

This article invites feminists to leverage the #MeToo Movement as a critical analytical tool to explore the longevity of the enduring rape crisis framing of victim services. Long before the #MeToo Movement, victim services in communities nationwide were framed around a crisis model. For nearly half a century, victims have visited rape crisis centers, called rape crisis hotlines, and mobilized rape crisis response teams to provide services and support. This enduring political and social framing around rape as a crisis is opaque, has prompted a political backlash, and risks distorting hard-fought feminist legal, social, and political battles. It has yielded …

Race, Speech, And Sports, Matthew J. Parlow

University of Richmond Law Review

Race, sports, and free speech rights intersected in a very controversial and public way during the 2016 and 2017 National Football League (“NFL”) seasons. On August 26, 2016, Colin Kaepernick spurred a national debate when he refused to stand during the playing of the national anthem before the NFL preseason game between the Green Bay Packers and the San Francisco 49ers, Kaepernick’s team at the time.

You Could Have Told Me That In The First Place: Five Tips That Might Have Saved A Young Lawyer A Lot Of Trouble, Jay O'Keeffe

University of Richmond Law Review

I will open with a confession: I have very, very little to contribute to legal scholarship. My day-to-day work as a lawyer and a parent keeps me busy. My career to date as a generalist has not led me to develop any great substantive expertise in a particular area of the law. Even my war stories are boring because they cluster around briefs, procedural defaults, and oral arguments. But I do have one thing to offer. I have been lucky in my career to work in “Biglaw,” then at a medium-sized firm of about fifty lawyers, and most recently at …

The Invisible Minority: Discrimination Against Bisexuals In The Workplace, Elizabeth Childress Burneson

University of Richmond Law Review

The Lesbian, Gay, Bisexual, Transgender, and Queer (“LGBTQ+”) community has won major legal victories in the last twenty years, but at least one group remains left behind in those victories. The bisexual population is often ignored, erased, and discriminated against by both homosexual and heterosexual individuals and communities. This is true despite the fact that bisexuals outnumber both lesbian women and gay men. This erasure and discrimination affects bisexuals in different areas of life and the law, including the employment context. Title VII of the Civil Rights Act of 1964 (“Title VII”), which protects against employment discrimination on the basis …

Reconsidering Selective Conscientious Objection, Andrew J. Haile

University of Richmond Law Review

In 1971, in the midst of the Vietnam War, the United States Supreme Court decided that to qualify as a conscientious objector (“CO”) one must oppose all war, and not just a particular war. The Court’s decision in Gillette v. United States turned on its interpretation of section 6(j) of the Military Selective Service Act. Section 6(j) provided, in relevant part, that no person shall “be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” According to …

Enforcing Statutory Maximums: How Federal Supervised Release Violates The Sixth Amendment Rights Defined In Apprendi V. New Jersey, Danny Zemel

University of Richmond Law Review

The Sixth Amendment commands that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Trial by a jury of one’s peers is a fundamental American legal right, existing in the earliest colonies before being codified in both Article III of the Constitution and the Sixth Amendment. The jury trial right derives from “the mass of the people,” ensuring that “no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the …

The Honorable Robert R. Merhige, Jr.: A Series On His Life And Career, Stephen N. Scaife

University of Richmond Law Review

No abstract provided.

The Conscience Of Virginia: Judge Robert R. Merhige, Jr., And The Politics Of School Desegregation, Robert A. Pratt

University of Richmond Law Review

The United States Supreme Court’s 1954 landmark decision in Brown v. Board of Education declared that segregation in public education violated the Fourteenth Amendment to the United States Constitution. For the millions of African Americans who had endured decades of separate and unequal schooling, this decision was a resounding reaffirmation of the nation’s commitment to equal justice under the law. But those who expected segregated schools to end overnight were in for a rude awakening. The National Association for the Advancement of Colored People (“NAACP”), which had led the legal assault against segregation since its founding in 1909, was encouraged …

The Honorable Robert R. Merhige, Jr.: A Judge Ahead Of His Time, Wayne A. Logan

University of Richmond Law Review

When one thinks about it, it is really quite incredible: a Brooklyn-born son of Lebanese and Irish immigrants with a distinct New York accent, standing well under six feet tall, attends a small North Carolina college on a basketball scholarship; serves with distinction in a bombing squadron in World War II; graduates from the University of Richmond School of Law (paying his way by serving as a night librarian); excels at the practice of law in a city (Richmond) not renowned for its receptivity to Yankees; wins election as president of the city’s Bar; and upon being appointed to the …

Underdeveloped And Over-Sentenced: Why Eighteen- To Twenty-Year-Olds Should Be Exempt From Life Without Parole, Emily Powell

University of Richmond Law Review

Sentencing eighteen- to twenty-year-olds to life without parole should be considered cruel and unusual because it is disproportionate to this class of offenders’ culpability.

Personal Reflections On The Honorable Robert R. Merhige, Jr.: A Judge, Mentor, And Friend, Mary Kelly Tate

University of Richmond Law Review

Twenty-six years—half my lifetime—have passed since I joined Judge Merhige’s court family as his law clerk. I attempt here to sketch my personal impressions, distilling what to me was most remarkable about Robert R. Merhige, Jr. Perhaps unsurprisingly, this dynamic man turned legendary judge—a man I revered from the moment I met him—is more vivid to me now than he was to my younger self.

A Non-Originalist Separation Of Powers, Eric J. Segall

University of Richmond Law Review

No abstract provided.

The President, Prosecutorial Discretion, Obstruction Of Justice, And Congress, Henry L. Chambers Jr.

University of Richmond Law Review

No abstract provided.

Delegation Enforcement By State Attorneys General, Jonathan David Shaub

University of Richmond Law Review

No abstract provided.

States Suing The Federal Government: Protecting Liberty Or Playing Politics?, Elbert Lin

University of Richmond Law Review

No abstract provided.

Rapid Dna Testing And Virginia's Rape Kit Backlog: A Double-Edged Sword Masquerading As A Miracle, Or The Future Of Forensic Analysis?, Emma C. Greger

Law Student Publications

While Rapid DNA technology has the potential to revolutionize every aspect of the criminal justice system, from arrest to the postconviction appeals process, there has been particular excitement centered around its potential to reduce the rape kit backlog.

Appointing Lesbian, Gay, Bisexual, Transgender And Queer Judges In The Trump Administration, Carl W. Tobias

Law Faculty Publications

President Donald Trump incessantly brags that American citizens selected him to “Make the Judiciary Great Again” and constantly reminds the public that the huge number of federal jurists whom Trump has appointed will be deciding cases decades after his tenure is over. Trump has rapidly submitted many circuit and district court candidates, but not one of his 123 nominees has been openly lesbian, gay, bisexual, transgender or queer (LGBTQ). The White House has also instituted endeavors, specifically regarding transgender people, which seem discriminatory. Indeed, a third of the judicial nominees whom the President has appointed have compiled anti-LGBTQ records. Because …

Severability, Separation Of Powers, And Agency Design, Kevin C. Walsh

Law Faculty Publications

Kristin Hickman pursues a “modest” goal in Symbolism and Separation of Powers in Agency Design: “to raise a few reservations regarding judicial refashioning of agency design via [a] severance remedy for separation of powers violations.” This understated approach commands attention to Hickman’s analysis. In this contribution to a Notre Dame symposium on “Administrative Lawmaking in the Twenty-First Century,” Hickman clearly identifies and carefully analyzes problems arising out of what might otherwise have passed as unremarkable applications of existing severability doctrine. With an eye toward big-picture legitimacy of courts and agencies, and with attention toward doctrinal and statutory detail, Hickman …

Removing Race From The Jury Deliberation Room: The Shortcomings Of Pena-Rodriguez V. Colorado And How To Address Them, Lauren Crump

Law Student Publications

This comment explores ways in which racial bias undermines the American jury system and argues that simply having a racial bias exception to the no-impeachment rule does not go far enough to guard against racially motivated jury verdicts. In order to guarantee the Sixth Amendment right to an impartial jury, defendants must always be able to question potential jurors about racial bias, and universal court policies need to be adopted across the country that allow for a consistent approach for investigating claims of racial bias in jury deliberations. Part I of this comment examines the history of American juries and …

Enforcing Statutory Maximums: How Federal Supervised Release Violates The Sixth Amendment Rights Defined In Apprendi V. New Jersey, Danny Zemel

Law Student Publications

The Sixth Amendment commands that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Trial by a jury of one’s peers is a fundamental American legal right, existing in the earliest colonies before being codified in both Article III of the Constitution and the Sixth Amendment. The jury trial right derives from “the mass of the people,” ensuring that “no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the …

Removing Race From The Jury Deliberation Room: The Shortcomings Of Pena-Rodriguez V. Colorado And How To Address Them, Lauren Crump

University of Richmond Law Review

This comment explores ways in which racial bias undermines

the American jury system and argues that simply having a racial

bias exception to the no-impeachment rule does not go far enough

to guard against racially motivated jury verdicts. In order to

guarantee the Sixth Amendment right to an impartial jury, defendants

must always be able to question potential jurors about

racial bias, and universal court policies need to be adopted across

the country that allow for a consistent approach for investigating

claims of racial bias in jury deliberations. Part I of this comment

examines the history of American juries and …

President Donald Trump And Federal Bench Diversity, Carl W. Tobias

Law Faculty Publications

President Donald Trump constantly reminds United States citizens about the myriad circuit and district court appointments that his White House is making to the federal judiciary. Last September, Trump proposed the seventh “wave,” which included three people of color among sixteen judicial nominees. This wave permitted the administration to triple the number of ethnic minority picks whom it had selected, which means that the Executive Branch has proffered ten persons of color in appeals court and district court submissions, yet none is a lesbian, gay, bisexual, or transgender (LGBT) individual. Nevertheless, a problematic pattern, which implicates a stunning lack of …

Curing The Federal Court Vacancy Crisis, Carl Tobias

Law Faculty Publications

The federal judiciary has experienced a vacancy crisis, which has intensified over President Donald Trump's tenure when judicial openings significantly increased from the 105 vacancies at his inauguration. Despite these concerns, analysts hail court selection as Trump's paramount success. This Article canvasses the rise and expansion of the crisis and scrutinizes the practices which Trump and the I 15th Senate instituted, as Republican concentration on quickly appointing many conservative appeals court judges resulted in departures from longstanding precedents and undermined the presidential discharge of constitutional responsibilities to nominate and confirm impressive jurists as well as senatorial duties to advise and …

Improper Delegation Of Judicial Authority In Child Custody Cases: Finally Overturned, Dale Margolin Cecka

University of Richmond Law Review

No abstract provided.