Courts Commons^™

Acknowledgements, Ashley R. Phillips

University of Richmond Law Review

Volume 54 of the University of Richmond Law Review quite possibly had an academic journey unlike any other. Who could have predicted as we said our goodbyes for spring break, it would be the last time we would work together in person? Volume 54 gave so much to have nearly everything taken by the COVID-19 pandemic. On September 20, 2020, I write these Acknowledgments-four months after the original May Book publication date-to those Law Review members I never had the chance to thank.

Uniform Climate Control, Anthony Moffa

University of Richmond Law Review

Part I will briefly recount the recent history of subnational environmental law in the United States and the scholarly treatment of it. Part II will do the same with the model- and uniform-law movements. Part III will focus on the most successful organization in terms of drafting and promoting model legislation at the subnational level—the American Legislative Exchange Council (“ALEC”). Because ALEC’s efforts on climate change attempt to entrench inaction for the benefit of its fossil fuel industry members, Part IV examines organizations and resources that facilitate subnational action on climate change. In doing so, it also provides a taxonomy …

Prosecutors And Police: An Unholy Union, Maybell Romero

University of Richmond Law Review

This Article argues that, with the once-unheard-of step of prosecutors and police unionizing together in St. Louis, and with relationships between prosecutors and police trending toward growing closer all the time, government at all levels—federal, state, and local—should consider the potential risks of such relationships. Part I explores different types of relationships that go beyond what was once the traditional working relationship between police and prosecutors, including formalized labor unions, employee association groups, friendships, and even marriages. Part II discusses the varying conflicts and deleterious effects that such close relationships cause, unduly influencing investigation priorities and other policies. Part III …

The State Attorney General’S Duty To Advise As A Source Of Law, Winthrop Jordan

University of Richmond Law Review

This Comment seeks to help fill that gap by considering how a state attorney general’s duty to advise functions as a source of law, by proposing six general models of how the opinions of a state attorney general can alter the legal rights, duties, and relations of persons. In doing so, this Comment still seeks to acknowledge and respect the fact that each state’s individual constitution and traditions will create a unique role for its attorney general’s duty to advise in shaping state law.

Why Calls For Shifting To Brandeisian Economic Theory Are Flawed: An Evaluation Of The United States’ And European Union’S Approach To Vertical Mergers, John A. Fortin

University of Richmond Law Review

The tech industry has exploded over the last few decades and progressives are advocating for a shift in antitrust review in the United States (US).1 Seeking a modified economic theory based on the writings of the late Justice Louis Brandeis (Brandeisian economic theory), these advocates seek to control the vertical expansion of dominant tech firms such as Amazon.2 On a broad level, this position argues for a shift of US antitrust regulatory review towards the European Union’s (EU) application of antitrust regulation. This paper provides a review of both US and EU antitrust review, provides a primer on vertical merger …

Restorative Lawyering: A Toolbox That Can Change The Profession, Emily Lopynski

University of Richmond Law Review

I will begin in Part I by delving into two serious issues in the legal profession—professional dissatisfaction and client dissatisfaction. Then, in Part II, I will provide a brief overview of Restorative Justice and three of its key principles: Heal the Harm, Honor and Respect, and Empathy. In Part III, I extrapolate from these three Restorative Justice principles to create a “toolbox”13 of restorative lawyering. I will then explain how restorative lawyering will decrease professional and client dissatisfaction, distinguish restorative lawyering from alternative models, and address possible critiques and concerns.

Restorative Justice For Young Adults: Lessons From School Discipline, Caroline Perrin

University of Richmond Law Review

Public policy debates about discipline and punishment often center around a tension between punitive and rehabilitative ideals. Since the 1970s, there has been a trend in criminal justice away from rehabilitation and toward increasingly retributive forms of punishment. Both state and federal governments began to enact “zero-tolerance” laws in an effort to make up for perceived shortcomings in the criminal justice system. This led to a system where individuals were automatically punished for crimes that previously would have been addressed through more rehabilitative methods. The resulting zero-tolerance regime had a particularly disproportionate impact on the young-adult population being funneled through …

Acknowledgements, Athena M. Dufour

University of Richmond Law Review

No abstract provided.

Queering Reproductive Justice, Marie-Amélie George

University of Richmond Law Review

Queer reproductive justice applies the reproductive justice movement’s principles to queer needs and interests. The reproductive justice movement differs from the reproductive rights struggle by emphasizing that reproductive rights are about much more than whether and how to terminate a pregnancy.3 Founded in the mid- 1990s by feminists of color, this movement adopted a holistic approach to reproductive rights. As advocates argued, people’s ability to exercise personal bodily autonomy, decide to have or not have children, and raise any children they had were also reproductive rights concerns. Reproductive justice work thus encompasses a range of topics, including accessing sex education …

Shared Histories: The Feminist And Gay Liberation Movements For Freedom In Public, Elizabeth Sepper, Deborah Dinner

University of Richmond Law Review

This Symposium on the fiftieth anniversary of the Stonewall Rebellion presents the opportunity to evaluate the regulation and deregulation of gender and sexuality in public space. In 1969, LGBTQ people erupted against policing, harassment, and exclusion in public spaces. While they had engaged in earlier, smaller protests and reforms, Stonewall ignited a mass gay liberation movement and sparked popular awareness of LGBTQ people’s civil rights struggles. LGBTQ activists demanded their rights to express identity, associate with one another, and engage in queer behavior. That same year, the newly burgeoning feminist movement also launched protests and called for women’s equality in …

From The Mattachine Society To Megan Rapinoe: Tracing And Telegraphing The Conformist/Visionary Divide In The Lgbt Rights Movement, Kyle C. Velte

University of Richmond Law Review

From the beginning of the LGBT civil rights movement, there has been an intracommunity debate concerning strategies and tactics to effect legal and social change. On one end of the spectrum, the lesbian and gay organizations of the 1950s—the Mattachine Society and the Daughters of Bilitis—advocated an assimilationist strategy that sought tolerance rather than full acceptance and integration. The tactics to affect this strategy are best described as conservative and conventional—to look and act as “straight” as possible in order to convince courts, legislatures, and the public that lesbians and gay men should be left alone rather than fired from …

Framing Legislation Banning The "Gay And Trans Panic" Defenses, Jordan Blair Woods

University of Richmond Law Review

This Article, prepared for the University of Richmond Law Reviewsymposium commemorating the fiftieth anniversary of the Stonewall Riots of 1969, uses the Stonewall Riots as an opportunity to analyze and theorize the political dimensions of legislation banning the gay and trans panic defenses. As a moment of resistance to state violence against LGBTQ people, the Stonewall Riots are a useful platform to examine the historical and current relationship between the state and the gay and trans panic defenses. Drawing on original readings of medical literature, this Article brings the historical role of the state in the growth of gay …

Gender Stereotypes And Gender Identity In Public Schools, Dara E. Purvis

University of Richmond Law Review

Given the changing interpretation of Title IX, both statutory and constitutional arguments supporting the right of public school students to express their gender in any manner contrary to traditional gendered norms have renewed vitality. In the decades since Stonewall, students facing school discipline for nonconforming gender presentation that violated school dress codes have attempted to challenge the dress codes as violating their First Amendment free expression rights. Tracing these arguments is not only helpful as a historical exercise, but also to present alternative arguments under an unsympathetic presidential administration and Supreme Court. In today’s world in which the Trump administration …

Dead Hand Vogue, Anthony Michael Kreis

University of Richmond Law Review

For decades, courts read employment antidiscrimination laws’ prohibition of sex discrimination to exclude gay, lesbian, bisexual, and transgender workers’ sexual orientation and gender identity discrimination claims—purportedly because the claims were not linked to employees’ status as a man or a woman. And while significant doctrinal developments have afforded some gender-nonconforming persons critical workplace safeguards under sex antidiscrimination laws, many older decisions that deemed sexual orientation and transgender discrimination claims to be outside the ambit of sex discrimination still control. These decades-old precedents all suffer from the same analytical error: a failure to adhere to the principle that antidiscrimination law does …

Riding The Storm Out After The Stonewall Riots: Subsequent Waves Of Lgbt Rights In Family Formation And Reproduction, Colleen Marea Quinn

University of Richmond Law Review

This Article will explore how LGBT family formation has evolved since the Stonewall Riots. The primary means for LGBT families to build their families, other than traditional intercourse between a man and a woman, were and continue to be through adoption and Assisted Reproductive Technologies (“ART”). In the world of assisted reproduction, typically a lesbian couple or a single woman use donor sperm, either known or unknown, coupled with artificial insemination. Gay men traditionally utilize a traditional or true surrogate (who is genetically related to the child) along with artificial insemination using the sperm of an intended father. As medical …

Lgbt Rights In The Fields Of Criminal Law And Law Enforcement, Carrie L. Buist

University of Richmond Law Review

In couching this discussion within the theoretical and practical application of queer criminology, this Essay will highlight the marginalization of LGBTQ+ folks and explore the impact that intersectionality has on the experiences of the LGBTQ+ community with special attention on law enforcement. For example, queer criminology studies the persistent distrust that the LGBTQ+ community has of police as well as the experiences of LGBTQ+ identified police officers and other agents within the criminal legal system. Further, as the current Administration continues to roll back the rights and liberties of the LGBTQ+ community, there must be a focus on how past …

Building Queer Families And The Ethics Of Gestational Surrogacy, Kimberly Mutcherson

University of Richmond Law Review

Throughout American history, government has used the law to deny some citizens the right to create or sustain families with children to show contempt for those citizens. As LGBT people fought for dignity, equality, and justice from Stonewall to the present, one of the greatest success stories of that fight is the change in how the law defines and protects families. Into the 1990s, people in samesex relationships had cause to fear that their sexual orientation could be used to deprive them of custody of their children. Now, many states, through statute or case law, routinely recognize two parents of …

Table Of Contents

University of Richmond Law Review

No abstract provided.

Give Me Your Tired, Your Poor (Unless They Are From “One Of Three Mexican Countries”): Unaccompanied Children And The Humanitarian Crisis At The U.S. Southern Border, Samantha R. Bentley

University of Richmond Law Review

This Comment argues that the United States’s response to the humanitarian crisis at its border is wholly inadequate. It argues that the government chose to advance two policies, Zero Tolerance and Family Separation, that exacerbated the humanitarian crisis at the border. These policies facilitated practices that violated domestic and international law. Most importantly, this Comment argues that the United States government traumatized one of the most vulnerable groups of people in the world: children.

Excessive Force: A Feasible Proximate Cause Approach, Latasha M. James

University of Richmond Law Review

Through an analysis of the statutory and case law surrounding the use of excessive force, this Comment will review how differentiating applications of the law have led to varying and sometimes unjust results. Jurisdictions differ regarding what pre-shooting conduct can be considered, what the “objective reasonableness” standard encompasses, and how tort law should impact this analysis. Therefore, this Comment works to provide a framework for the consistent application of the objective reasonableness standard. Part I reviews the proscribed levels of force, noting when the use of force becomes excessive, and discusses the tort concept of proximate cause and how the …

The Corporate Chameleon, Megan Wischmeier Shaner

University of Richmond Law Review

This Article seeks to address what is currently missing from corporate law—a clear way of determining “officer” status as that distinct legal role is contemplated in corporate jurisprudence. Part I discusses the three primary actors involved in the internal governance of the corporation—directors, stockholders, and officers—and how the law defines each one. While corporate law clearly contemplates officers as a distinct role, a quick comparison of the three reveals a failure to identify with any precision the bounds of “officer” status. Part II looks to other areas of the law for guidance in defining and identifying the officers of the …

The Political Process Of Preemption, Paul A. Diller

University of Richmond Law Review

Preemption, particularly of the state-city variety, has become a hot topic. State legislatures in many states over the last decade have preempted a wide swath of areas in which cities and counties were previously free to govern. In addition to the sweeping nature and frequency of preemption, the increasingly aggressive methods of enforcing preemption have drawn notice. The threat of fiscal penalties, removal of local officials from office, and even criminal sanctions constitute what one scholar has dubbed the phenomenon of “hyper preemption.”

Pills, Public Nuisance, And Parens Patriae: Questioning The Propriety Of The Posture Of The Opioid Litigation, Michelle L. Richards

University of Richmond Law Review

The opioid crisis has been in litigation for almost twenty years on various fronts, including criminal prosecutions of pharmaceutical executives, civil lawsuits by individuals against drug manufacturers and physicians, class actions by those affected by opioid abuse, and criminal actions filed by the Drug Enforcement Administration (“DEA”). In the early 2000s, opioid litigation began with individual plaintiffs filing suit against manufacturers and others for damages allegedly related to opioid use. The litigation has since expanded significantly in terms of the type of plaintiffs and defendants, the nature of the claims being asserted, and the damages attributable to the crisis.

The …

Ethical Blindspots In Adoption Lawyering, Malinda L. Seymore

University of Richmond Law Review

This Article discusses ethical issues relevant to adoption attorneys, as well as the lessons from behavioral ethics that inform the ethical blind spots common in the practice. The Model Rules for attorneys address a number of areas relevant to the complexitiesof adoption practice. Rules relating to competency and confidentiality, conflicts of interest and dual representation, and the lawyer’s roles as counselor as well as advocate are particularly germane. Although much has been written about the dual representation issue in adoption, other issues of professional responsibility in adoption cases have not been as carefully explored. This Article seeks to remedy that. …

Tailoring Copyright To Protect Artists: Why The United States Needs More Elasticity In Its Protection For Fashion Designs, Robin M. Nagel

University of Richmond Law Review

For as long as copyright protection has existed in the United States, protection has never expressly extended to fashion designs because copyright law categorizes fashion designs as “useful articles” that do not receive any protection. In the eighteenth century, this policy perhaps made sense—most clothing was generic, non-decorative, and required little creativity for many of the everyday garments people wore. Clothing in the eighteenth century was commonly made up of useful articles that served very little purpose outside of their utility. However, in today’s society, fashion has transformed into an industry that prizes creativity, ingenuity, innovation, and something more than …

Preface, Matthew L. Pangle

University of Richmond Law Review

The University of Richmond Law Review is proud to present the thirty-fourth issue of the Annual Survey of Virginia Law. Since 1985, the Annual Survey has striven to provide a comprehensive resource detailing recent legislative, judicial, and administrative changes in Virginia. Today, the Annual Survey is the most widely read publication of the University of Richmond Law Review, reaching lawyers, judges, legislators, and students in every corner of the Commonwealth. In continuing the Annual Survey tradition, we have selected pieces we believe are timely, compelling, and useful to staying informed of relevant legal and social issues.

From Animal Control To Zoning: 2019 Local Government Law Update, Tyler C. Southall

University of Richmond Law Review

The goal of this Article is to review significant recent developments in Virginia local government law. First, this Article discusses a number of Supreme Court of Virginia and Fourth Circuit Court of Appeals cases published between July 1, 2018 and July 1, 2019. These cases involve questions of the First Amendment and social media, the First Amendment and employment law, attorney client privilege and Freedom of Information Act requests, vested rights issues in zoning ordinances, the powers of the Virginia State Corporation Commission, and public finance. Second, this Article addresses new laws from the 2019 General Assembly. It is impossible …

The Downfall Of "Incumbent Protection": Case Study And Implications, Jeffrey R. Adams, Lucas I. Pangle

University of Richmond Law Review

On January 9, 2019, the United States Court of Appeals for the Fourth Circuit struck down Virginia Code section 24.2-509— Virginia’s long-standing “Incumbent Protection Act” (or the “Act”). The Incumbent Protection Act was the only statute of its kind, and had endured criticism by grassroots commentators. Yet, the Incumbent Protection Act had long evaded scrutiny in the courtroom. Indeed, the Incumbent Protection Act’s courtroom history is labyrinthine, replete with interesting and significant commentaries on party rights, standing, and public policy preference for primaries. In fact, before its eventual demise, it had been implicated in several lawsuits bringing constitutional challenges to …

In Memoriam: Michael Morchower, John W. Luxton

University of Richmond Law Review

October of 1974 brought an offer of employment to work for Michael Morchower as his first legal associate. We met in my last semester of law school when I did an internship with Robert W. Duling of the Richmond Commonwealth’s Attorney Office. Contested cases I observed between the two were spirited. When the case was over, however, the two future legends of the Richmond legal community would congratulate one another in a sincere and thoughtful manner.

Civil Practice And Procedure, Christopher S. Dadak

University of Richmond Law Review

This Article’s focus and analysis encompasses the past year of Supreme Court of Virginia opinions, legislation, and revisions to the Rules of the Supreme Court of Virginia affecting Virginia civil procedure.1 This Article is not meant to be all-encompassing, but does endeavor to capture the highlights of changes or analysis regarding Virginia civil procedure. The opinions discussed throughout this Article do not all reflect changes in Virginia jurisprudence on civil procedure, but also address clarifications or reminders from the court on certain issues it has deemed worthy of addressing (and that practitioners continue to raise). The Article first addresses opinions …