Courts Commons^™

A Social-Conservative Comment On The New Supreme Court, Gary L. Bauer

University of Richmond Law Review

I recall seeing a column, not long ago, which referred to the Supreme Court as increasingly "a right-wing playground." Liberal groups may be able to raise funds off this impression, but if conservatives rely on it, they are in for a rude awakening when the gavel falls.

Saving The Honorable Court: Assessing The Proper Role Of The Modern Supreme Court, Michael Allan Wolf

University of Richmond Law Review

There are few greater delights in legal scholarship than the opportunity to have the last word in a symposium featuring distinguished - and dramatically differing - viewpoints. The thirteen contributions that precede this afterword offer a provocative and representative set of reactions to the ongoing debate over the role of the Supreme Court in the American polity. This debate is by no means new, or even middle-aged. The struggle over the confirmation of Associate Justice Clarence Thomas is but the latest in a long line of pressure points in American constitutional history - events such as controversial Supreme Court decisions, …

Cameras In Virginia Courtroom, Teresa D. Keller

University of Richmond Law Review

On July 1, 1992, Virginia joined forty other states by allowing cameras into state courtrooms on a permanent basis. A pilot program had been underway since 1987, allowing news coverage by television cameras, audio recorders, and still cameras in a handful of state courtrooms. Lawmakers had extended the experiment twice, delaying a permanent decision in the face of varying opinions about the success of the program. The Supreme Court of Virginia issued two reports over the five year span indicating the pilot program had produced a negative effect on the judicial process. Broadcasters, on the other hand, consistently claimed the …

Civil Justice Reform And The Balkanization Of Federal Civil Procedure, Carl W. Tobias

Law Faculty Publications

The recent civil war ripping apart Yugoslavia is a trenchant reminder of the horrors of balkanization. Without trivializing the Yugoslavian experience, the term balkanization usefully applies to developments in American federal civil procedure that now threaten the continued viability of a uniform, simple system of procedure. Thirty-four federal courts' nascent implementation of the Civil Justice Reform Act (CJRA) of 1990 will exacerbate these developments; indeed, if the remaining sixty districts that must issue civil justice expense and delay reduction plans by December 1993 fail to halt this trend, the Act will further fragment procedure. This article cautions those responsible for …

The President And The Federal Bench, Carl W. Tobias

Law Faculty Publications

Professor Tobias assesses the efforts of the George H.W. Bush Administration in appointing women and African-Americans to the federal bench.

Civil Justice Planning In The Montana Federal District, Carl W. Tobias

Law Faculty Publications

The Montana Federal District Court recently finalized its civil justice expense and delay reduction plan under the Civil Justice Reform Act (CJRA) of 1990. In April, 1992, the Montana District essentially adopted whole cloth, and made effective, the civil justice plan that it had issued in December, 1991 to qualify for designation as an Early Implementation District Court (EIDC). Relatively few members of the Montana Bar exhibited much interest in the planning effort that preceded promulgation of the civil justice plan. Because the new procedural regime that the Montana District instituted could significantly change the character of federal court practice, …

Balancing The Federal Judiciary, Anne Bryant

University of Richmond Law Review

Since the American Association of University Women first published the associational brief "Balancing the Federal Judiciary" in 1988, two new Associate Justices (David Souter and Clarence Thomas) have joined the Supreme Court. The Court has continued to chip away at the rights of women and minorities, with damaging decisions in areas such as reproductive rights (e.g., Webster v. Reproductive Health Services) and employment discrimination(e.g., Wards Cove Packing Company v. Atonio). With a conservative majority in place on the Supreme Court until well into the next century and Reagan and Bush appointees comprising more than half of the nation's federal judges, …

The Supreme Court: New Hope For The Restoration Of Federalism, Beverly Lahaye, Ellen O. Smith

University of Richmond Law Review

The recent philosdphical shift of the Supreme Court toward a more restrained or "conservative" approach to constitutional adjudication brings with it hope for the revitalization of federalism as a constitutional and political principle.

Advice And Consent: Ensuring Judicial Freedom, Patrick J. Leahy

University of Richmond Law Review

Throughout this nation's history, Americans have turned to the Supreme Court to protect their rights against excesses of the legislative and executive branches. To protect this crucial role of the Court, the Framers realized that neither the executive nor the legislature should have the power to cast the Court in its own image. To prevent this usurpation of one branch by another, the Framers wisely required the President to obtain the advice and consent of the Senate in making appointments to the Supreme Court.

Judiciary: Know Thy Place, Thomas L. Jipping

University of Richmond Law Review

Alexander Hamilton wrote in The Federalist No.78 that the judiciary "has no influence over ... the purse."' Yet in Missouri v. Jenkins, the Supreme Court approved indirect judicial taxation. Hamilton wrote that the judiciary "will always be the least dangerous" and "beyond comparison the weakest" branch of government. Yet in Roe v. Wade, the Supreme Court created out of nothing a right to choose abortion, invalidated the abortion laws of all fifty states developed over more than a century, and shut millions of Americans out of the process of developing public policy on this important political issue. Hamilton wrote that …

More Women Named Federal Judges, Carl W. Tobias

Law Faculty Publications

The essay initially assesses information pertinent to President Bush's record of appointments to the federal bench during his first three years in office. The prospects for future appointment of women are explored next. Finding these prospects inconclusive, this essay suggests that President Bush continue employing the constructive measures initiated during his administration's third year to name additional women while seriously considering the possibility of instituting even more vigorous efforts to appoint women in the future. Finally, the essay examines why greater numbers of women should be placed on the federal courts and how that goal can be attained.

Judicial Discretion And The 1983 Amendments To The Federal Civil Rules, Carl W. Tobias

Law Faculty Publications

The first section of this Article briefly describes the developments which created the perception that the federal courts were experiencing a litigation explosion and which ultimately led to the promulgation of the 1983 amendments as one response to the perceived explosion. It also examines the substantive content of those changes, especially how the revisions enlarged federal judicial discretion. The second section evaluates the courts' implementation of the 1983 amendments and finds that this application has adversely affected numerous litigants, particularly civil rights plaintiffs, while providing some benefits, namely fostering more expeditious dispute resolution.

The third section provides suggestions for the …

Comparative American Judicial Systems, Jeffrey A. Parness

University of Richmond Law Review

Far too often when we discuss American courts and their judicial systems, we take little note of the significant differences in the ways in which cases are handled and law is practiced. We probably contemplate the dichotomy between trial and appellate courts; between rural and urban courts; between general and special jurisdiction courts; between state and federal courts; between courts with elected and selected judges; and between civil and criminal courts. We also surely contemplate the differences in attitudes, work habits, ideology, staff and the like which separate individual judges, and we inevitably contemplate the divergent judicial approaches to the …

The Gender Gap On The Federal Bench, Carl W. Tobias

Law Faculty Publications

This Commentary evaluates President George H.W. Bush's lackluster record of appointing women to the federal courts. The Commentary initially examines the relevant data on female judicial appointments and assesses why the Bush Administration has placed few women on the bench. It next recommends that President Bush name substantially more women in 1991 and 1992 and explores why and how this endeavor should be instituted. The Commentary then analyzes what the Bush Administration is likely to do about the paucity of female appointees. Because it is not clear that President Bush will place very many women on the federal courts, the …

The Federal Judiciary Engendered, Carl W. Tobias

Law Faculty Publications

The dearth of women named to cabinet level positions in the George H.W. Bush Administration does not augur well for appointment of women to the federal bench. Equally discouraging was Mr. Bush's campaign response to the question whether there should be special efforts to select more women for the federal judiciary: "[I] remain committed to appointing to the bench the best qualified candidates we can find-regardless of ... gender--and the record shows that we have been successful in fulfilling this commitment. " The record compiled by the Administration in which he served as Vice-President for two terms was deplorable.

To …

Grand Jury Reform: A Proposal For Change In Virginia, Charles E. Wall

University of Richmond Law Review

Once a cornerstone of American jurisprudence, the requirement of prosecution based upon grand jury indictment no longer stands unchallenged. Instead, alternate means of commencing prosecution, most notably by information and the preliminary hearing, have prompted lawmakers to look at the grand jury with a heightened scrutiny. Subsequently, such alternatives have become the primary prosecutorial tools in many states. Virginia, however, retains the grand jury system which was implemented in colonial times.

Annual Survey Of Virginia Law: The Rules Of Court For The General District Courts Of Virginia, J. R. Zepkin

University of Richmond Law Review

In the spring of 1986, a proposal was made to the Advisory Committee on the Rules of Court to the Judicial Council of Virginia (the "Advisory Committee") for a reorganization and review of the Rules of Court for the general district courts. The Advisory Committee authorized the creation of a subcommittee.

When Racists And Radicals Meet, Ronald J. Bacigal, Margaret Ivey Bacigal

Law Faculty Publications

In order to stimulate scholarly discussion, this Essay presents an empirical account of the Greensboro incident from the perspective of those who participated in the episode and in the resulting civil rights trial. The Essay traces the circumstances leading to the violence and reviews the resultant litigation with special attention given to the role of the trial judge in politically volatile cases. The candid reflections offered by the trial judge and other participants allow the reader to examine both the event and the litigation, not merely in the abstract, but as implemented by flesh-andblood lawyers, litigants, and judges. .

Appellate Delay As A Catalyst For Change In Virginia, Julie M. Carpenter

University of Richmond Law Review

A Virginia citizen injured in an automobile accident in 1988 who is denied compensation through trial court error will wait an average of 1,165 days (3.2 years) after trial for the Supreme Court of Virginia to rectify the matter. Of course, that wait is only for the seventeen percent of cases that the supreme court elects to review, since Virginia is one of the only states that grants no right of appeal in most civil and criminal cases. By way of limited contrast, a civil appeal in the North Carolina Supreme Court averages be- tween 241 days and 257 days. …

The School Pays The Piper, But How Much? Attorneys Fees In Special Education Cases After The Handicapped Children’S Protection Act Of 1986, Thomas F. Guernsey

Law Faculty Publications

The Education for All Handicapped Children Act of 1975 (the EHA) imposes significant responsibilities on local and state educational authorities to ensure that handicapped children are receiving free and appropriate public education. To protect this substantive right to education, Congress mandated extensive procedural protections, including the right to file a judicial action following exhaustion of administrative remedies. The EHA did not provide for the recovery of attorneys' fees, however, until the statute was recently amended. ...

Court Costs In Virginia, William Hamilton Bryson

Law Faculty Publications

Costs are certain official expenses of litigation that the court orders the losing party to pay to the prevailing party. They are not a part of the judgment but are appurtenant to it.

An Empirical Case Study Of Informal Alternative Dispute Resolution, Ronald J. Bacigal

Law Faculty Publications

The following Article is taken from that portion of Merhige's biography that addresses the Westinghouse uranium case of the 1970s, perhaps the first of the major "complex cases" to attract national attention. This case study provides an opportunity to examine a judicial decision making process involving four years of litigation, international discovery proceedings, judicial administrative guidelines, diverse national precepts of economics and politics, the interplay between the free market and multinational cartels and embargoes, and lastly, the personality of the trial judge. Shunning any pretense of passivity, Merhige initiated proceedings in the Westinghouse case by ignoring administrative protocol in order …

Bounds And Beyond: A Need To Reevaluate The Right Of Prisoner Access To The Courts, Steven D. Hinckley

University of Richmond Law Review

There is little doubt that a prisoner's most important right is access to the courts. Without access, prisoners have neither a forum in which to question the conditions and constitutionality of their confinement, nor an arena in which to seek vindication of other alleged rights violations. Therefore, the right of access is the foundation upon which other prisoners' rights are built.

Toward A Unified Approach To Privileges And Relevancy, Thomas F. Guernsey

Law Faculty Publications

No topic in evidence has received more attention from commentators than evidentiary privileges. In the writings on privilege, however, there has been little discussion that the auxiliary public policies excluding otherwise logically relevant evidence under relevance analysis are essentially the same as the public policies that underlie the creation of privileges. In fact, as a general matter, if no topic has received more attention than privileges, few topics have received less attention than relevancy, and there has been virtually no discussion of the connection between privilege analysis and relevancy analysis. ...

Virginia Should Open Its Courthouse Doors To Review Administrative Decisions Involving Public Assistance, Christopher Allen Stump, Jill A. Hanken

University of Richmond Law Review

Virginia's courts interpret the Virginia Administrative Process Act (VAPA) to prohibit judicial review of administrative decisions that grant or deny public assistance funds. Virginia is therefore one of only three states which fail to provide judicial review of such decisions. This article advocates judicial review of public assistance hearing decisions on the basis of principles of statutory construction and constitutional law. The article concludes that Virginia's minority status indicates a failure to meet traditional notions of fairness.

Review Of Virginia Lawyers Practice Handbook: Appellate Practice: Virginia And Federal Courts, William Hamilton Bryson

Law Faculty Publications

A book review on Virginia Lawyers Practice Handbook: Appellate Practice: Virginia and Federal Courts by the Committee on Continuing Legal Education of the Virginia Law Foundation.

The Federal Court Across The Street: Constitutional Limits On Federal Court Assertions Of Personal Jurisdiction, Pamela J. Stephens

University of Richmond Law Review

Twenty years ago, in a clear break with accepted theory, it was suggested that there were certain constitutional limitations on a federal court's authority to exercise personal jurisdiction. Such a departure from the traditional view might be expected to prompt an extensive examination of that issue by commentators. However, while assertions of personal jurisdiction by state courts have been the subject of intense scrutiny and ongoing constitutional refinements, this has not been the case regarding assertions of personal jurisdiction by federal courts. Generally, federal district courts sitting in diversity cases must look to personal jurisdiction limitations inherent in the state …

From O'Callahan To Chappell: The Burger Court And The Military, Stephen J. Kaczynski

University of Richmond Law Review

In 1969, the United States was deeply committed to a ground war in Southeast Asia in which the suffering and death was brought home daily to the American television viewer. Distrust of the military was never higher, as the repeated assertions of the imminent collapse of the enemy had apparently been graphically belied a year earlier in the Tet Offensive. As a newly elected President pledged to bring "peace with honor" to a war which seemed amenable to neither, Justice Douglas announced the decision of the Court in O'Callahan v. Parker.

Hearings On Jury Bias Or Misconduct, Ronald J. Bacigal

Law Faculty Publications

In the recent cases of Smith v. Phillips, and Rushen v. Spain, the United States Supreme Court recognized that judicial review of ex parte contacts with a sitting jury may raise a number of separate but interrelated constitutional rights: (1) the right to an impartial jury; (2) the right to a due process post-trial hearing on jury bias; (3) a possible due process right to a mid-trial hearing on jury bias; (4) the defendant's right to be present at such mid· trial hearings; and (5) the right to be represented at such mid-trial hearings. As Justice Stevens noted in his …

The Prejudicial Effects Of Cameras In The Courtroom, Robert J. Fuoco

University of Richmond Law Review

The Supreme Court recently held in Chandler v. Florida, that absent a showing of actual prejudice, it is not per se unconstitutional to televise trials over the objection of the defendant. This decision has a direct bearing on state court procedures, as over one-half of the states currently permit television coverage of trials in one form or another. However, sheer numbers supporting a proposition do not make that proposition "right", nor does a Supreme Court decision upholding its constitutionality imply an unqualified stamp of approval. In fact, previous Supreme Court decisions have overturned convictions because the defendant's right to a …