West Virginia law review最新文献

{"title":"Working for Recovery: How the Americans With Disabilities Act and State Human Rights Laws Can Facilitate Successful Rehabilitation for Alcoholics and Drug Addicts","authors":"Samuel Brown Petsonk, Anne Marie Lofaso","doi":"10.2139/SSRN.3166746","DOIUrl":"https://doi.org/10.2139/SSRN.3166746","url":null,"abstract":"The Americans with Disabilities Act (ADA) and West Virginia Human Rights Act (WVHRA) protect addicts’ rights by providing that no covered employers may discriminate against addicted workers or job applicants because of their addiction. These laws recognize that recovering drug addicts, and society at large, are harmed by exclusion, discrimination, and unaccommodating workplace conditions. By better utilizing these laws to ensure access to gainful employment for recovering addicts, the labor and employment bar can make an important contribution to resolving the vexing opioid epidemic.","PeriodicalId":83498,"journal":{"name":"West Virginia law review","volume":"120 1","pages":"9"},"PeriodicalIF":0.0,"publicationDate":"2018-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47412681","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 Take Care Clause, Justice Department Independence, and White House Control","authors":"Andrew Wright","doi":"10.2139/SSRN.3125848","DOIUrl":"https://doi.org/10.2139/SSRN.3125848","url":null,"abstract":"Problematic relations between the White House and the U.S. Department of Justice stand out amidst the broader tumult of President Donald Trump’s first year in office. With respect to written policy restricting contacts between the White House staff and the Department, the Trump White House has followed the general contours of predecessor administrations. Those policies recognize that White House contacts restrictions vary with the Department’s complex functions, restrict channels of contact, and restrict personnel authorized to make contacts. They also grant limited exceptions where White House-Department contact is required to assist the President in the performance of a constitutional duty and contact would be appropriate from a law enforcement perspective. A number of episodes, however, suggest that the President and senior administration officials have not honored the spirit, and in some cases the letter, of that contacts policy. \u0000One of the frequent criticisms leveled against President Trump is that he disregards many norms and traditions that have been observed by presidential administrations of both parties for decades. Restrictions on White House interference in criminal investigations do not merely protect norms. Rather, those policies also seek to prevent unconstitutional conduct by the President and his political appointees. This Article demonstrates that political interference by the President undertaken in bad faith could violate the Take Care Clause even in the absence of a criminal statute. Obstructive behavior is even worse. Whether or not the President is indictable for the commission of a statutory criminal offense of obstruction of justice during his tenure in office, this Article explains why the President may violate the Take Care Clause independently of criminal offenses. \u0000A principle of political noninterference by the White House in the federal prosecution function in particular matters is consistent with Article II. Neither the Vesting Clause, the President’s position atop the Executive Branch, nor the President’s broader enforcement discretion defeat the anti-interference principles commanded by the Presidential Oath and the Take Care Clause. It is a question that goes to the very concept of Rule of Law itself. However, political processes, rather than justiciable legal proceedings, serve as the presumptive source of Take Care Clause enforcement as to White House-Department relations.","PeriodicalId":83498,"journal":{"name":"West Virginia law review","volume":"121 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2018-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3125848","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44261206","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":"Populist Placemaking: Grounds for Open Government-Citizen Spatial Regulating Discourse","authors":"Michael N. Widener","doi":"10.2139/SSRN.3087689","DOIUrl":"https://doi.org/10.2139/SSRN.3087689","url":null,"abstract":"","PeriodicalId":83498,"journal":{"name":"West Virginia law review","volume":"121 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"2017-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42034292","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":"Legislation's Culture","authors":"R. Neumann","doi":"10.2139/SSRN.2647590","DOIUrl":"https://doi.org/10.2139/SSRN.2647590","url":null,"abstract":"American statutes can seem like labyrinthine mazes when compared to some countries’ legislation. French codes are admired for their intellectual elegance and clarity. Novelists and poets (Stendhal, Valery) have considered the Code civil to be literature. Swedish legislation might be based on empirical research into problems the legislation is intended to remedy, and the drafting style, though modern today, is descended from an oral tradition of poetic narrative.Comparing these legislative cultures with our own reveals that the main problem with American legislation is not too many words. It is too many ideas — a high ratio of concepts per legislative goal. When American, French, and Swedish legislatures address similar problems, the French and Swedes draft using far fewer concepts than Americans do. In both countries, simple solutions are preferred over convoluted ones. The drafters of the Code civil thought the highest intellectual and legislative accomplishment to be simplicity. The Swedes got to approximately the same place through a cultural value that law be understandable to the public. Where the American legislative process can seem chaotic, there has been some respect for Cartesian rationality in France and for empirical evidence in Sweden.Even if American statutes were to be translated into ordinary English, they would still be labyrinths because our legislatures insist on addressing every conceivable detail that legislators can imagine. The result is excessively conceptualized legislation, imposing large numbers of duties. Statutory concepts cost money. They create issues, which must be decided by publicly funded courts and agencies with additional costs to the parties involved. Every unnecessary statutory concept wastes social and economic resources. And to the extent law seems incomprehensible to the public, it loses moral authority.","PeriodicalId":83498,"journal":{"name":"West Virginia law review","volume":"119 1","pages":"11"},"PeriodicalIF":0.0,"publicationDate":"2015-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68238401","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 Civil Rights of Sexually Exploited Youth in Foster Care","authors":"Dale Margolin Cecka","doi":"10.31228/osf.io/4p8q7","DOIUrl":"https://doi.org/10.31228/osf.io/4p8q7","url":null,"abstract":"This paper examines the civil rights of youth who are missing or discharged from foster care and become victims of sexual exploitation. It also addresses future implications of this epidemic, given demographic patterns of the United States, if we do not address this issue now. The paper concludes that adolescents in foster care have a constitutional right to be free from state action which puts them at risk for sexual exploitation.","PeriodicalId":83498,"journal":{"name":"West Virginia law review","volume":"117 1","pages":"1225"},"PeriodicalIF":0.0,"publicationDate":"2015-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639221","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":"Specifically Authorized by Binding Precedent Does Not Mean Suggested by Persuasive Precedent: Applying the Good Faith Exception after Davis v. United States","authors":"Zachary C. Bolitho","doi":"10.2139/ssrn.2580231","DOIUrl":"https://doi.org/10.2139/ssrn.2580231","url":null,"abstract":"A number of federal circuit courts have recently refused to apply the Fourth Amendment exclusionary rule to evidence obtained from GPS vehicle trackers that were installed and monitored without a warrant before United States v. Jones. Those courts have largely reached that result by invoking Davis v. United States, which held the exclusionary rule to be inapplicable where an officer relied on binding appellate precedent that was later overruled. More specifically, the circuit courts have viewed the Supreme Court’s 1983 decision in United States v. Knotts (addressing “beeper” tracking devices) as binding precedent that specifically authorized the warrantless installation and monitoring of GPS vehicle trackers prior to Jones. The Fourth Circuit’s decision in United States v. Stephens is representative of the “Knotts is binding precedent under Davis approach” that most circuits have used to resolve the exclusionary rule question. This Article, therefore, uses Stephens as a vehicle for analyzing that approach. This Article argues that circuit court decisions like Stephens have stretched the holding of Davis and interpreted Knotts in a way that contradicts Supreme Court precedent. And, the circuit courts have done so for no good reason — they could have reached the same result (i.e., refusing to exclude the GPS vehicle tracker evidence) by working through the general good faith analysis. Instead, most of the circuit courts have chosen to resolve the exclusionary rule issue by defining the terms “specifically authorized” and “binding precedent” to mean “suggested” and “persuasive precedent.” In the process, the courts have converted the intentionally narrow holding of Davis into a broad decision with unknown boundaries.","PeriodicalId":83498,"journal":{"name":"West Virginia law review","volume":"118 1","pages":"643"},"PeriodicalIF":0.0,"publicationDate":"2015-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2580231","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68212407","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":"Land, Slaves, and Bonds: Trust and Probate in the Pre-Civil War Shenandaoh Valley","authors":"A. Brophy, D. Thie","doi":"10.2139/SSRN.2113084","DOIUrl":"https://doi.org/10.2139/SSRN.2113084","url":null,"abstract":"“Land, Slaves, and Bonds” samples wills filed for probate in Rockbridge County in Virginia’s Shenandoah Valley from 1820 to 1861, to detail the changes in probate practice during that era of market revolution. We report the gender, familial status, distributions, and use of trusts of the 128 testators sampled. Their choices often involved leaving part of their property to their surviving spouses for their lives, then outright to their sons and in trust to their daughters. Nearly forty percent owned enslaved human property and distributed their slaves among their children. Occasionally they freed their enslaved human property. This study also traces changes in sophistication of wills and accompanying trusts over time. Thus it provides an important window into how Rockbridge County residents used the legal process to transmit wealth between generations and to preserve it.The forty years leading into Civil War were ones of extraordinary expansion in the economy, communication, transportation, and technology of the United States; the legal technology studied here reflects that growth in wealth and sophistication. At the same time, as the vigorous market economy was expanding -- as testators’ wealth was increasingly reflected in personal property such as stock rather than real property -- there were problems with identifying reliable agents (executors and trustees). Thus, testators continued to place a premium on family members to manage their wealth; and they also took extraordinary means, such as use of sophisticated trust documents and marriage settlements, to maintain property within their families. This study shows that testators turned frequently to legal technology to manage property and keep it within their families. They used the vehicles to keep property out of the hands of creditors, especially the creditors of their sons-in-laws, Thus, legal technology helped balance the impersonal market revolution.The data have several implications. They reveal how people reacted to the expanding, impersonal economy where property owners frequently had to rely on trust, even if it was dangerous to do so because it was difficult to police the actions of agents. That era of the breakdown of “trust” was a central impetus to the turn to trust documents to protect a family’s wealth. The data show the importance of legal technology in adapting to a rapidly changing economy and a rapidly expanding world. They also demonstrate the rapid rise in sophistication of trusts and relocate the roots of modern trust law, such as the spendthrift trust, to the pre-Civil War era, even though it is frequently written about as a device of the post-War era.","PeriodicalId":83498,"journal":{"name":"West Virginia law review","volume":"119 1","pages":"10"},"PeriodicalIF":0.0,"publicationDate":"2014-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2113084","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67917704","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":"Answering the \"Serious Constitutional Question\": Ensuring Meaningful Review of All Constitutional Claims","authors":"George Bach","doi":"10.2139/ssrn.2402064","DOIUrl":"https://doi.org/10.2139/ssrn.2402064","url":null,"abstract":"In 2012, the Supreme Court in Elgin v. Department of the Treasury clarified the standard that should apply when a federal statute purports to remove judicial review of all constitutional claims. The Court confirmed that, if a statute only channels judicial review of a constitutional claim into a specific avenue (for example, through administrative review and then the Federal Circuit Court of Appeals), then Congressional intent to do so need only be “fairly discernible.” Alternatively, if a statute precludes all judicial review of a constitutional claim, there must be “clear Congressional intent.” The Court explained that the reason for these differing standards is to avoid the “serious constitutional question that would arise if an agency statute were construed to preclude all judicial review of a constitutional claim.” Courts have a duty to protect and interpret the Constitution and claimants have a right to meaningful review of their constitutional claims. That serious constitutional question does arise when probationary federal public employees, who are not fully covered by Civil Service Reform Act (“CSRA”) protections, allege constitutional violations related to their employment. For example, the CSRA right to directly petition the Merit Systems Protection Board (“MSPB”) and to appeal to the Federal Circuit Court of Appeals is unavailable to probationary federal public employees. Instead, probationary federal employees who allege that their employment was terminated in violation of the U.S. Constitution may only petition the U.S. Office of Special Counsel. If the Office of Special Counsel denies an employee’s claim, that claim is terminated without any further administrative or judicial review. This result raises the serious constitutional question, one that dates back to Marbury v. Madison, about the judicial duty of review of constitutional claims, particularly those involving individual rights. Given the lack of meaningful review of constitutional claims brought by federal probationary employees, a judicial remedy must be provided to ensure deterrence of unconstitutional acts by federal employers. That remedy should be extending a cause of action from Bivens v. Six Unknown Federal Agents to probationary federal employees who otherwise will not receive meaningful review of their constitutional claims.","PeriodicalId":83498,"journal":{"name":"West Virginia law review","volume":"117 1","pages":"177"},"PeriodicalIF":0.0,"publicationDate":"2014-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68182394","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 Reactionary Road to Free Love: How DOMA, State Marriage Amendments and Social Conservatives Undermine Traditional Marriage","authors":"Scott Titshaw","doi":"10.2139/SSRN.2013535","DOIUrl":"https://doi.org/10.2139/SSRN.2013535","url":null,"abstract":"Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. It categorizes and analyzes the amendments, showing that most allow marriage light experimentation. It also explains why ambiguous marriage amendments should be read narrowly. It contrasts these amendments with foreign constitutional provisions aimed at different-sex marriages, revealing that the American amendments result largely from anti-gay animus. But they also reflect fear of change. This article gives reasons to fear the failure to change. Comparing American and European marriage alternatives (from covenant marriage to various forms of marriage light) reveals that they all have distinct advantages over traditional marriage. The federal Defense of Marriage Act (DOMA) adds even more. Unlike same-sex marriage, these advantageous alternatives are attractive to different-sex couples. This may explain why new marriage light regimes increasingly extend to all couples, and why these gender-neutral marriage alternatives – once established – tend to become permanent. In the end, all couples could be left with cafeteria options for legal relationship recognition. This may be a good solution, but it is certainly not a conservative one.","PeriodicalId":83498,"journal":{"name":"West Virginia law review","volume":"115 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67852460","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":"12/7 and 9/11: War, Liberties, and the Lessons of History","authors":"E. Muller","doi":"10.2139/SSRN.354761","DOIUrl":"https://doi.org/10.2139/SSRN.354761","url":null,"abstract":"In this essay, originally presented as the Edward G. Donley Memorial Lecture at the West Virginia University College of Law in February, 2002, Muller compares the Roosevelt administration's domestic policies affecting Japanese Americans after the attack on Pearl Harbor with the Bush administration's domestic policies affecting people of Arab ancestry and Muslim faith after the September 11 attacks on the World Trade Center and the Pentagon. U.S. Supreme Court Justice Robert Jackson, dissenting in the 1944 Korematsu case, predicted that the Court's opinion upholding the eviction of 120,000 Japanese Americans from the West Coast would \"lie about like a loaded weapon,\" threatening future generations. Canvassing the Bush administration's post-September 11 policies touching on race and ethnicity, Muller finds a healthy measure of restraint - a significantly greater measure of restraint than the Roosevelt administration showed in the days after Pearl Harbor, and, more interestingly, a significantly greater measure of restraint than has marked the Bush administration's post-9/11 policies that do not touch on race and ethnicity. Muller challenges the oft-heard assertion that the Bush administration's policies repeat the mistake of Korematsu, and speculates that recent events may show that the racist assumptions that underlay the Roosevelt administration's policies have been pushed to, or even beyond, the fringes of acceptable policy discourse, even in times of crisis.","PeriodicalId":83498,"journal":{"name":"West Virginia law review","volume":"104 1","pages":"7"},"PeriodicalIF":0.0,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68606017","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}