University of Richmond law review. University of Richmond最新文献

{"title":"Death As a Bargaining Chip: Plea Bargaining and the Future of Virginia's Death Penalty","authors":"J. Douglass","doi":"10.31228/osf.io/tnrhj","DOIUrl":"https://doi.org/10.31228/osf.io/tnrhj","url":null,"abstract":"Virginia now averages less than a single death sentence each year, 1 a far cry from its not-too-distant history as the second most active death penalty state in the nation. 2 The numbers alone tempt us to forecast the death of Virginia’s death penalty: a death by disuse. But those numbers leave much of the story untold. The plummeting number of death sentences is only the diminishing tip of a larger, more stable iceberg of capital case litigation. That iceberg is melting very slowly, if at all.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"23 1","pages":"873-894"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72676380","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Frenemies of the Court: The Many Faces of Amicus Curiae","authors":"H. Anderson","doi":"10.2139/SSRN.2474729","DOIUrl":"https://doi.org/10.2139/SSRN.2474729","url":null,"abstract":"Amicus curiae occupy a unique place in the courts: non-parties who are nevertheless advocates, who are not bound by rules of standing and justiciability, and who can present the court with new information and arguments. Amicus participation has increased dramatically in recent years, and threatens to alter the adversarial process. Yet scholars and courts treat amicus curiae as a single category, not fully recognizing that this friendly term actually covers several very different types, ranging from court appointed advocates of a particular position, to friends of a party (sometimes paid by the party), to persons or groups who just missed qualifying as interveners. To understand the reality of amicus practice, this article develops a taxonomy of amicus based on the relationship to the court and the parties. The article supports this taxonomy with a look at the history of amicus, and a survey of the rules and judicial attitudes in different jurisdictions. I also explore the persistence of a myth that amicus should be “disinterested,” a myth that has led to confused reasoning about the proper role of amicus. The modern increase in friend of a party amicus has taken us far from the origins of amicus as one with special expertise or knowledge relevant to the litigation. The article concludes that the Supreme Court’s open-door amicus policy should not be mindlessly copied by our other courts. Friend of a party briefs by ambitious law reform and business advocates may exert great influence, particularly on elected courts. The growth in amicus briefs can lead to distorted views of appellate decision-making, so that a court’s work is seen more like legislation and amicus briefs more like lobbying. To preserve the usefulness of the amicus institution, courts should exercise their gatekeeping authority.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"2 1","pages":"361-416"},"PeriodicalIF":0.0,"publicationDate":"2014-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88028988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Purpose of the Fourth Amendment and Crafting Rules to Implement that Purpose","authors":"Thomas K. Clancy","doi":"10.2139/SSRN.2325481","DOIUrl":"https://doi.org/10.2139/SSRN.2325481","url":null,"abstract":"What is the purpose of the Fourth Amendment? How should rules – legal principles – be crafted to implement that purpose? This article addresses those fundamental questions. Both historically and currently, the Supreme Court’s answer to the first question has vacillated between two choices: the Amendment is designed to regulate law enforcement practices or it is designed to protect individuals from overreaching governmental intrusions. Rules – legal principles – should implement purpose. If the first view is correct, then the Court should create a rule book for the police to effectuate their intrusions. If the second view prevails, then rules should be designed to promote individual security. This article posits that the purpose of the Fourth Amendment, at its very core, is to protect individual security. Accepting that premise as a given, the article details the consequences of that purpose – legal principles should be constructed to protect the individual, including general rules and exceptions to those rules.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"48 1","pages":"479-522"},"PeriodicalIF":0.0,"publicationDate":"2014-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89979085","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Terminating Parental Rights through a Backdoor in the Virginia Code","authors":"Dale Margolin Cecka","doi":"10.31228/osf.io/z2srm","DOIUrl":"https://doi.org/10.31228/osf.io/z2srm","url":null,"abstract":"This article explores deficits in the statute, in light of constitutional law, other Virginia adoption and termination of parental rights statutes, and other states' codes and jurisprudence. Part II describes the history and practice of the statute. Part III describes the flaws of the statute, including Fourteenth Amendment violations and inherent conflicts of interest. Part IV calls for the revision of section 1202(H) based on recent precedent in which the Supreme Court of Virginia recognized the sanctity of the parent-child relationship and the state's interest in preserving it.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"6 1","pages":"371"},"PeriodicalIF":0.0,"publicationDate":"2013-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72540909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Copyright/Patent Boundary","authors":"Viva R. Moffat","doi":"10.2139/SSRN.2273840","DOIUrl":"https://doi.org/10.2139/SSRN.2273840","url":null,"abstract":"Since the passage of the 1976 Copyright Act, the scope of protection for industrial design has been one of the most troublesome areas of copyright law. Many everyday items, from smart phones and gaming devices to bicycle racks and clothing mannequins, blend form — which is protected by copyright law — and function — protected by patent — and therefore lie at the boundary of the two areas of law. Courts and scholars have persistently struggled with copyright’s useful article doctrine, which seeks to delineate that boundary, but none of the approaches has proved to be either practically or theoretically satisfying.This article proposes a default rule that differs both from the cur-rent law and many reform proposals because it demands acknowledgement that the useful article doctrine is not about copyright law, at least not entirely. The useful article doctrine is a channeling doctrine meant to direct certain works — useful things like items of industrial design — away from copyright law so that designers do not have an incentive to avoid patent law’s more stringent requirements by obtaining copyright protection instead. The doctrine can serve this channeling function, however, only if it draws a clear line that errs on the side of ensuring that useful articles do not receive copyright protection.To accomplish this, the courts should borrow from trademark’s functionality doctrine. First and foremost, when the useful article doctrine is raised as a defense, the burden should shift to the copyright proponent to prove that the item sought to be copyrighted is not “useful.” Even without more, this shift in the default rule would draw a much brighter line, deterring designers from pursuing copyright protection and litigation and channeling industrial design away from copyright and to-ward patent. This will admittedly result in the exclusion from copyright of original expression that would in every other respect qualify. But this is as it should be. Copyright is not the appropriate form of protection for items of industrial design; copyright’s rule should reflect that.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"75 1","pages":"611-666"},"PeriodicalIF":0.0,"publicationDate":"2013-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83809766","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In Defense of Deference: The Case for Respecting Educational Autonomy and Expert Judgments in Fisher v. Texas","authors":"Eboni S. Nelson","doi":"10.2139/SSRN.2271116","DOIUrl":"https://doi.org/10.2139/SSRN.2271116","url":null,"abstract":"Less than a decade after deciding Grutter v. Bollinger, the Supreme Court will return to the contentious debate regarding race-based affirmative action when it considers the plan challenged in Fisher v. University of Texas. Although modeled after Grutter, an examination of the plan’s constitutionality is potentially complicated by the operation of the Texas Top Ten Percent Plan — an arguably effective race-neutral alternative. Central to the Court’s inquiry will be its willingness, or lack thereof, to respect UT’s assessment that despite the gains in diversity achieved by the Ten Percent Plan, the consideration of race in admissions decisions continues to be necessary to achieve its academic mission and goals. This article urges the Court to respect educators’ good faith decision making, particularly when it involves the development of academic missions as well as the measures needed to accomplish them. Failure to do so would undermine the Court’s prior practice of respecting educators’ autonomy as well as the Court’s call for restrained judicial involvement in complex, educational decision making. The article begins with an examination of the challenged plan as well as the Fifth Circuit’s opinions upholding the plan’s constitutionality. Following this examination, the article challenges the contention that deferring to educators’ race-based decision making “represents a digression in the course of constitutional law.” It argues that when properly viewed as a means by which to inform rather than to weaken a strict scrutiny inquiry, deference is an appropriate principle to apply when examining the constitutionality of race-based admissions plans such as that employed in Fisher. In light of the expertise and knowledge needed to craft and implement effective measures to carry out a university’s educational mission, the article urges the Court to defer to the University’s judgments concerning not only its asserted compelling interests, but also the narrowly tailored means by which to achieve such interests.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"44 1","pages":"1133-1170"},"PeriodicalIF":0.0,"publicationDate":"2013-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79933997","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lessons from Improvements in Military and Overseas Voting","authors":"Steven F. Huefner","doi":"10.2139/SSRN.2228657","DOIUrl":"https://doi.org/10.2139/SSRN.2228657","url":null,"abstract":"This article considers recent efforts, including the federal Military and Overseas Voter Empowerment (“MOVE”) Act and the Uniform Military and Overseas Voters Act (“UMOVA”), to improve the voting experience of military and overseas voters. The article also identifies some broader implications of those efforts on various early and absentee voting methods increasingly available to other U.S. voters. Although the desire to assist military and overseas voters understandably is widespread, no single accommodation best suits all of these voters and it is not always easy to agree upon the best ways to maximize their ability to participate. After summarizing past efforts to accommodate these voters, the article uses three recent “controversies” in military and overseas voting in the 2000, 2008, and 2012 presidential elections to explore how these voting accommodations can work in practice and to highlight their connections to the larger field of election administration. The article concludes with some broader reflections about early and absentee voting generally.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"5 1","pages":"833-880"},"PeriodicalIF":0.0,"publicationDate":"2013-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81739855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Leasing Sovereignty: On State Infrastructure Contracts","authors":"Matthew Titolo","doi":"10.2139/SSRN.2135708","DOIUrl":"https://doi.org/10.2139/SSRN.2135708","url":null,"abstract":"Infrastructure privatization is in the news. Pennsylvania, California, Colorado and Indiana, among many other states and municipalities, have in the past ten years privatized — or attempted to privatize — toll roads, parking meters and other public infrastructure. State and federal policy has encouraged these public-private partnerships and infrastructure privatization. We’ve been here before. Private development of public infrastructure was common in states and municipalities in the nineteenth century. This was typically done through granting corporate charters and franchises. Widespread disillusionment with this model led to a public finance counterrevolution in the twentieth century. Privatization re-emerged in the 1980s and 1990s. Headlines such as “Why Does Abu Dhabi Own All of Chicago’s Parking Meters?” and “Cities for Sale” attest to the continuing controversy surrounding these arrangements. This paper focuses on one of the more troubling features of infrastructure contracts: non-compete clauses. The relevant legal principles include the Contracts Clause, the reserved powers doctrine, legal prohibitions on alienating sovereignty and the inherent police powers of the state. I conclude that the non-compete terms run afoul of deeply-rooted common law and constitutional principles. If I am right in this, it follows that infrastructure contracts ought to preclude terms that permit the alienation of sovereignty. To be sure, what counts as an “alienation of sovereignty” will not always be obvious. Governments as a general rule must fulfill their contract obligations. But this general, abstract rule is subject to a limiting principle. On the one hand, the government acts as sovereign trustee of the public interest. In this capacity, government is a public actor with a certain degree of trumping power over private interests. On the other hand, when the government enters the market arena it is cast as an equal counterparty in a commercial contract. In this capacity, government resembles and is expected to behave as a reciprocally bound private actor. But this resemblance is often illusory. Unless our ancient anchor terms are hopelessly circular the essence of government remains public and not private. Because the government is not just a private party, advancing the broader public interest — however difficult to define — is not precisely symmetrical with advancing aggregate private interests. In other words, “efficiency” notwithstanding, the government cannot auction off its power to govern. Longstanding legal norms limit the scope, duration and subject matter of public-private contracts. States contemplating public-private infrastructure deals should think twice before selling the public birthright for a mess of pottage.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"1 1","pages":"631-693"},"PeriodicalIF":0.0,"publicationDate":"2013-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89543838","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Roadblocks to Remedies: Recently-Developed Barriers to Relief for Aliens Injured by U.S. Officials, Contrary to the Founders’ Intent","authors":"Gwynne L. Skinner","doi":"10.2139/SSRN.2077296","DOIUrl":"https://doi.org/10.2139/SSRN.2077296","url":null,"abstract":"The premise of this article is that the founding generation of the United States intended that non-citizens harmed by U.S. officials, especially those harmed in violation of international law, would be provided a judicial remedy in the form of damages, consistent with international law. In fact, throughout the 1800s and most of the 1900s, aliens were able to recover damages for such violations, consistent with the founders’ intentions. However, in the 1980s, both Congress and federal courts began creating roadblocks to judicial remedies for those suffering such harms. These developments contradict the founders’ intent and the country’s practice throughout most of its history. In addition, federal courts continue to hold foreign officials liable in claims brought by non-citizens for the same customary international law violations for which it fails to hold U.S. officials liable, resulting in an ugly hypocrisy. The article acknowledges that the United States’ role and status in the world is different today than it was at the country’s founding, but suggests that United States’ compliance with international law – including ensuring a remedy when its officials commit torts against non-citizens in violation of international law and the U.S. Constitution – is as relevant today as it was then. Finally, the article proposes various actions Congress and the courts should take to in order to comply with the founders’ intent (and international law obligations) to provide for judicial remedies to aliens who suffer harm from torts in violation of their rights under both customary international law and the U.S. Constitution. Although scholars have discussed the fact that the Alien Tort Statute, enacted in 1789, had U.S. citizens in mind as defendants, the scholarly literature has largely overlooked the fact that the ATS evidences an intent by the founding generation to ensure that aliens were provided remedies for harms from torts in violation of their legal rights by U.S. officials. Scholars have also generally overlooked the practice of U.S. courts and Congress to assure such remedies during the 1800s and well into the 1900s. Moreover, although some scholars have discussed various doctrines that have resulted in U.S. courts being unable or unwilling to hold U.S. officials liable for torts in violation of both international and Constitutional law, no scholar has yet described how the several statutes and common law doctrines developed over the last thirty years have worked together to create roadblocks to remedies for aliens harmed by the actions of U.S. officials.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"10 1","pages":"555-629"},"PeriodicalIF":0.0,"publicationDate":"2012-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81174015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Why Federal Rule of Evidence 403 is Unconstitutional, and Why that Matters","authors":"K. Klein","doi":"10.2139/SSRN.2088155","DOIUrl":"https://doi.org/10.2139/SSRN.2088155","url":null,"abstract":"Federal Rule of Evidence 403, described as the cornerstone of the entire Code, provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” It is an iconic rule. The Rule, along with its state law counterparts, is the primary trial management tool in the American court system. FRE 403 is the means judges use to keep trials “on track” and “on task,” by excluding “unquestioned” relevant evidence from the jury in order to promote accuracy and efficiency. The Rule also has a major constitutional problem -- one that has not even been identified, much less resolved. The Sixth and Seventh Amendments to the Constitution -- respectively guaranteeing the right to a criminal jury and a civil jury -- make it a right of all Americans that juries, not judges, decide what weight to give to evidence. Thus, constitutionally, there is no way to keep relevant evidence from the jury, at least not without a countervailing constitutional value. There is no countervailing constitutional value. Efficiency is not a constitutional value. Accuracy is not a constitutional value. One might argue that a rule premised on trusting judges more than juries to weigh evidence makes for better justice, but such a rule is at odds with the Framers’ decision. 19th Century evidence theorists were the first to propose efficiency or accuracy as a basis to exclude relevant evidence. This was decades after the ratification of the Constitution, and the adoption Sixth and Seventh Amendments. Yet neither these theorists, nor any judge or writer since, has ever addressed the possible constitutional barrier to the Rule.The implications of this conclusion -- that the desirability of efficient trials cannot justify declining to honor the constitutional prerogative of juries -- are potentially profound. Large swaths of federal jurisprudence -- both criminal and civil -- are grounded in making trials more efficient and accurate. If efficiency and accuracy are insufficient to overcome the prerogative of the jury, then potentially lots of rules are built on illusory foundations.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"39 1","pages":"1077-1131"},"PeriodicalIF":0.0,"publicationDate":"2012-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90074984","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}