Courts Commons^™

The Legal Ethics Of Family Separation, Milan Markovic

University of Richmond Law Review

On April 6, 2018, the Trump administration announced a “zero tolerance” policy for individuals who crossed the U.S. border illegally. As part of this policy, the administration prosecuted parents with minor children for unlawful entry; previous administrations generally placed families in civil removal proceedings. Since U.S. law does not allow children to be held in immigration detention facilities pending their parents’ prosecution, the new policy caused thousands of children to be separated from their parents. Hundreds of families have yet to be reunited.

Despite a consensus that the family separation policy was cruel and ineffective, there has been minimal focus …

Cftc & Sec: The Wild West Of Cryptocurrency Regulation, Taylor Anne Moffett

University of Richmond Law Review

Over the past few years, a turf war has been brewing between the Commodity Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”) over which agency should regulate cryptocurrencies. Both agencies have pursued numerous enforcement actions over the cryptocurrencies they believe to be within their jurisdiction. This turf war has many moving components, but the focus always comes back to one question: which cryptocurrencies are commodities, and which cryptocurrencies are securities? The distinction is important because the CFTC has statutory authority to regulate commodities, whereas the SEC has statutory authority to regulate securities. This Comment rejects the pursuit …

Table Of Contents

University of Richmond Law Review

No abstract provided.

Memorizing Trade Secrets, Timothy E. Murphy

University of Richmond Law Review

The earliest trade secret cases recognized that remembered information raised unique issues in trade secret misappropriation claims. However, courts struggled with exactly how to address remembered information, as opposed to information taken in tangible form. The modern trend, according to one case from the Washington Supreme Court, is to ignore the distinction and treat remembered information the same as information taken in tangible form for purposes of trade secret misappropriation claims. However, this case may have prematurely signaled the demise of remembered information’s relevance to a trade secret claim. Particularly during the pandemic era, where increased employee mobility is placing …

“If You Build It, They Will Come”: Reverse Location Searches, Data Collection, And The Fourth Amendment, Matthew L. Brock

University of Richmond Law Review

On January 6, 2021, the world looked on, stunned, as thousands of rioters stormed the U.S. Capitol on live television in support of then-President Donald Trump. In the days and weeks that followed, federal law enforcement scrambled to identify those involved in the attack, in what has become the largest criminal investigation in American history. Whereas even 20 years prior it would have been difficult to identify those involved, as of February 2023, more than 950 people have been identified and charged in relation to the January 6th Capitol attack. Many of these individuals were identified using a wide array …

“Fundamental Fairness”: Finding A Civil Right To Counsel In International Human Rights Law, Meredith Elliott Hollman

University of Richmond Law Review

Every other Western democracy now recognizes a right to counsel in at least some kinds of civil cases, typically those involving basic human rights. The World Justice Project’s 2021 Rule of Law Index ranked the United States 126th of 139 countries for “People Can Access and Afford Civil Justice.” Within its regional and income categories, the United States was dead last. The United Nations and other international treaty bodies have urged the United States to improve access to justice by providing civil legal aid. How did we fall behind, and what can we learn from the rest of the world? …

Confirm Julie Rikelman For The First Circuit, Carl W. Tobias

Law Faculty Publications

Now that the United States Senate has reconvened after pauses for holidays, the upper chamber must expeditiously appoint designee Julie Rikelman to the U.S. Court of Appeals for the First Circuit, which is the smallest, albeit critical, appellate court. The nominee, whom President Joe Biden tapped during late July 2022, would supply remarkable experiential, gender, and ideological diversity gleaned from pursuing much cutting-edge reproductive freedom litigation, which included arguing Dobbs before the Supreme Court that overturned Roe v. Wade. The nominee has definitely excelled in law’s highest echelon over twenty-plus years, most recently as the U.S. Litigation Director in the …

Beyond Problem-Solving Courts, Erin R. Collins

Law Faculty Publications

Problem-solving courts were borne out of a well-meaning experimentalist spirit, one that inspired judges to attempt to close the so-called “revolving door” to the courthouse by providing treatment instead of, or in addition to, incarceration. The problem-solving court movement is now more than thirty years old and the results of this experiment in court reform are underwhelming. Viewed in the most favorable light, studies suggest that problem-solving courts can modestly reduce the likelihood that some court participants will be arrested or convicted again. Meanwhile, the 40% to 60% of people who begin but do not complete problem-solving court programs often …

How Biden Can Continue Making The Federal Courts Better, Carl W. Tobias

Law Faculty Publications

From 2017 until 2020, former President Donald Trump and the Republican Senate majority nominated and confirmed record-breaking numbers of appellate court judges. This emphasis undermined ethnic, gender, sexual orientation, and experiential diversity as well as ideological balance on these courts and neglected to address persistent district court and emergency vacancies. Moreover, to achieve these historic confirmation levels, the GOP Senate majority eviscerated or altered certain rules and customs of regular order, which included the creation of a circuit-level exception to the blue slip process. President Joe Biden, in turn, has pledged to rectify the damage to the courts and the …

The Confederate Law Of Prize, John Paul Jones

Law Faculty Publications

This essay describes the prize law of the Confederate States of America. Due to the Union’s blockade of the South’s coastline, Confederate judges heard very few prize cases. But when they did, they closely hewed to the prize law of the United States.

Confirm Judge Irma Carrillo Ramirez To The Fifth Circuit, Carl W. Tobias

Law Faculty Publications

The United States Senate must expeditiously confirm United States District Court for the Northern District of Texas Magistrate Judge Irma Carrillo Ramirez, who has definitely earned appointment to the United States Court of Appeals for the Fifth Circuit and will become the appellate court’s initial Latina member. This regional circuit effectively resolves substantial appeals, enjoys a large judicial complement, and certainly possesses a reputation as the nation’s most conservative appellate court. Ramirez, whom President Joe Biden nominated in mid-April, decidedly provides remarkable gender, experiential, ideological, and ethnic judicial diversity and has rigorously served as a Magistrate Judge and Assistant United …

James Ravenscroft's Reports Of Cases In The Court Of Common Pleas (1623-1633), William Hamilton Bryson

Law Faculty Publications

James Ravenscroft was born in 1595, the son of Thomas Ravenscroft of Fould Park, Middlesex, and Bridget Powell. The Ravenscrofts were an ancient Flintshire family. (Thomas Ravenscroft (1563-1631) was a cousin of Lord Ellesmere's first wife, a member of Parliament in 1621, and a Cursitor in the Chancery.) James was admitted at Jesus College, Cambridge, in 1613, and received his B.A. degree in 1616. He was admitted to the Inner Temple on 29 May 1617, and he was called to the bar on 21 May 1626. James was married to Mary Peck; they resided in High Holborn, and had eleven …

“Fundamental Fairness”: Finding A Civil Right To Counsel In International Human Rights Law, Meredith Elliot Hollman

Law Student Publications

Every other Western democracy now recognizes a right to counsel in at least some kinds of civil cases, typically those involving basic human rights. The World Justice Project’s 2021 Rule of Law Index ranked the United States 126th of 139 countries for “People Can Access and Afford Civil Justice.” Within its regional and income categories, the United States was dead last. The United Nations and other international treaty bodies have urged the United States to improve access to justice by providing civil legal aid. How did we fall behind, and what can we learn from the rest of the world? …

Duped By Dope: The Sackler Family’S Attempt To Escape Opioid Liability And The Need To Close The Non-Debtor Release Loophole, Bryson T. Strachan

Law Student Publications

The opioid epidemic continues to rage on in the United States, ravaging its rural populations. One of its main causes? OxyContin. Purdue Pharma (“Purdue”), the maker of OxyContin, aggressively marketed opioids to the American public while racking up a fortune of over $13 billion dollars for its owners,3 the Sackler family. As a result, roughly 3,000 lawsuits were filed against Purdue and members of the Sackler family. Generally, the lawsuits alleged that Purdue and members of the Sackler family knew OxyContin was highly addictive yet aggressively marketed high dosages of the drug and misrepresented the drug as nonaddictive and without …

“If You Build It, They Will Come”: Reverse Location Searches, Data Collection, And The Fourth Amendment, Matthew L. Brock

Law Student Publications

On January 6, 2021, the world looked on, stunned, as thousands of rioters stormed the U.S. Capitol on live television in support of then-President Donald Trump. In the days and weeks that followed, federal law enforcement scrambled to identify those involved in the attack, in what has become the largest criminal investigation in American history. Whereas even 20 years prior it would have been difficult to identify those involved, as of February 2023, more than 950 people have been identified and charged in relation to the January 6th Capitol attack. Many of these individuals were identified using a wide array …

Confirm Rachel Bloomekatz To The Sixth Circuit, Carl W. Tobias

Law Faculty Publications

Now that the United States Senate is convening after the July Fourth holiday, the upper chamber must promptly appoint Rachel Bloomekatz to the U.S. Court of Appeals for the Sixth Circuit. The nominee, whom President Joe Biden selected in May 2022, provides remarkable experiential, gender, and ideological expertise that she deftly realized in litigating high-profile gun control, environmental, and other significant cases in federal appellate courts and district courts. Over fifteen years, the nominee has reached law’s pantheon across a broad spectrum from extremely prestigious clerkships with Justice Stephen Breyer and particularly distinguished federal court and state court jurists to …

Appoint Judge Ana De Alba To The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

The United States Senate must rapidly appoint Eastern District of California Judge Ana de Alba to the Ninth Circuit. This appellate tribunal is a preeminent regional circuit, which faces substantial appeals, has the largest complement of jurists, and clearly includes a massive geographic expanse. The nominee, whom President Joe Biden designated in spring 2023, would offer remarkable gender, experiential, ideological, and ethnic diversity realized primarily from serving productively with the California federal district, and state trial, courts after rigorously litigating for one decade in a highly regarded private law firm. For over fifteen years, she deftly excelled in law’s upper …

Functional Federal Equity, Riley T. Keenan

Law Faculty Publications

Throughout history, English and American courts have adapted traditional equitable doctrines and remedies to new social, economic, and technological circumstances. This traditional approach to equity traces to England’s High Court of Chancery in the seventeenth century, and federal courts in the United States have applied it since the founding, fashioning new forms of equitable relief to break labor strikes, desegregate schools, redraw electoral maps, and prevent the enforcement of unconstitutional laws.

Yet despite its pedigree, the Supreme Court has abandoned this traditional approach to equity over the past two decades. Today, the Court limits federal courts to the doctrines and …

In Memoriam, Marla Graff Decker

University of Richmond Law Review

The career of Judge Walter S. Felton, Jr., is marked indelibly with the theme of “called to service.” First, as a Captain in the United States Army, representing wounded soldiers returning home from Vietnam. Second, as counsel to one of Virginia’s Governors, which included playing a pivotal role in leading the Commonwealth through the unprecedented national tragedy of September 11, 2001, and its aftermath. Third, as a judge and then chief judge of the Court of Appeals of Virginia. These three stages of his career highlight Judge Felton’s commitment to public service and his value to his beloved Commonwealth.

Civil Practice And Procedure, Christopher S. Dadak

University of Richmond Law Review

This Article discusses Supreme Court of Virginia opinions and revisions to the Code of Virginia and Rules of the Supreme Court of Virginia impacting civil procedure here in the Commonwealth over the last year. The Article first addresses opinions of the supreme court, then new legislation enacted during the 2021 General Assembly Session, and finally, approved revisions to the Rules of the Supreme Court of Virginia.

Covid-19 And Energy Justice: Utility Bill Relief In Virginia, Joel B. Eisen

University of Richmond Law Review

Energy justice has captured national attention as scholars have spotlighted inequities in energy production and distribution activities, energy and utility regulation, and the clean energy transition. Within this broader context, this Article reflects on the successes and setbacks for the movement toward energy justice through a case study focusing on legislative, executive, and regulatory attempts between 2020 and 2022 to provide relief for Virginia utility customers harmed by the COVID-19 pandemic. The Article begins by defining the problem of energy insecurity and demonstrating that the pandemic exacerbated existing energy insecurity for vulnerable citizens of Virginia. It then traces the efforts …

What Is The Standard For Obtaining A Preliminary Injunction In Virginia?, Stuart A. Raphael

University of Richmond Law Review

A perception exists that the Supreme Court of Virginia has not articulated the legal standard for adjudicating preliminary-injunction motions in Virginia circuit courts. For decades, lawyers and legal scholars have advocated that Virginia trial judges borrow the federal preliminary-injunction standard applied in the United States Court of Appeals for the Fourth Circuit. Virginia trial courts have generally followed that advice. Virginia courts at first applied the Fourth Circuit’s Blackwelder test, which called upon judges to balance the four traditional factors and allowed a stronger balanceof-hardship showing to offset a weaker showing of likely success on the merits. After the 2008 …

Criminal Law And Procedure, Brittany A. Dunn-Pirio, Timothy J. Huffstutter, Mason D. Williams, Robin M. Nagel, Tanner M. Russo

University of Richmond Law Review

This Article surveys recent developments in criminal procedure and law in Virginia. Because of space limitations, the authors have limited their discussion to the most significant published appellate decisions and legislation.

Table Of Contents

University of Richmond Law Review

No abstract provided.

Preface, Kelly O'Brien

University of Richmond Law Review

No abstract provided.

Banning Noncompetes In Virginia, Christopher J. Sullivan, Justin A. Ritter

University of Richmond Law Review

The past decade has seen a nationwide wave of reform in noncompete law, specifically the limitation of noncompete agreements. Since 2016, ten states—including Virginia in 2020— banned the use of noncompete agreements against certain “lowwage” employees. In order to stay ahead of this curve and ensure Virginia remains and grows as one of the top states to do business, this Article suggests that Virginia—like its neighbor, the District of Columbia, initially did in 2021—pass a complete ban of all noncompete agreements in the employment context. Such a ban would make Virginia a lucrative destination for entrepreneurs and startups by maximizing …

Foreword, Wendy Collins Perdue

University of Richmond Law Review

No abstract provided.

Cannabis Law, Lisa Moran Mcmurdo, Steven D. Forbes, Stewart R. Pollock, Christian F. Tucker

University of Richmond Law Review

On July 1, 2021, Virginia became the sixteenth state to permit recreational use of cannabis. As of 2022, thirty-nine states have legalized the medical use of cannabis, and nineteen states and the District of Columbia have legalized the adult use of cannabis for recreational purposes. “A CBS News/YouGov poll released in April 2022 found that two-thirds of Americans want recreational [cannabis] use to be legalized under federal law and in their own state.” This Article summarizes the history of cannabis regulation and examines the current legal landscape in Virginia governing the possession, cultivation, manufacturing, and sale of cannabis.

Taxation, Craig D. Bell

University of Richmond Law Review

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (the “Tax Department” or “Department of Taxation”) and the Attorney General of Virginia over the past year. Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, and discrete local taxes. The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in …

Wills, Trusts, And Estates, Hunter M. Glenn, Allison A. Tait

University of Richmond Law Review

Between legislative and judicial activity, there have been a number of noteworthy developments and changes to the rules governing trusts and estates. Several of these developments turn on questions related to the role of fiduciaries, what responsibilities they have with respect to reporting as well as asset management, and when they can be removed. These questions concerning fiduciaries implicitly address the rights of beneficiaries and the protections available to them. New developments also will have multiple repercussions for estate planners and wealth managers. New planning strategies in response to changes in the law of undue influence may become important to …