Author: Virginia Law Review

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Virginia Law Review 95:2 (April 2009)

VOLUME 95      APRIL 2009     ISSUE 2

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Virginia Law Review 95:2 (April 2009)

ESSAY

Of Guns, Abortions, and the Unraveling Rule of Law

Judge J. Harvie Wilkinson III

ARTICLE

The Antitrust of Reputation Mechanisms: Institutional Economics and Concerted Refusals to Deal

Barak D. Richman 

NOTES

Unmasking John Doe: Setting a Standard for Discovery in Anonymous Internet Defamation Cases

Jessica L. Chilson 

Marriage & Redemption: Mormon Polygamy in the Congressional Imagination, 1862-1887 Kelly Elizabeth Phipps
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Virginia Law Review 95:1 (March 2009)

VOLUME 95      MARCH 2009     ISSUE 1

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Virginia Law Review 95:1 (March 2009)

ARTICLES

Invalid Forensic Science Testimony and Wrongful Convictions

Brandon L. Garrett and Peter J. Neufeld

The Space Between Markets and Hierarchies George S. Geis

 

NOTES

A Fourth Amendment Metamorphosis: How the Fourth Amendment Remedies and Regulations Facilitated the Expansion of the Threshold Inquiry

Elizabeth Canter

Consumerism and Information Privacy: How Upton Sinclair Might Once Again Protect Us From Ourselves (And Why We Should Let Him) Benjamin Sachs
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Virginia Law Review In Brief

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In Brief, the online companion to the Virginia Law Review, recently published a discussion centered around Professor Stephen F. Smith’s article The Supreme Court and the Politics of Death, published in the April 2008 Issue of the Virginia Law Review:

Professor Darryl K. Brown’s response, The Multifarious Politics of Capital Punishment: A Response to Smith , suggests “that the politics of death are not quite as bleak as Smith believes them to be,” and highlights “some significant developments in the moderation of capital punishment policy achieved through the democratic process” before closing with some thoughts regarding “the significance of the Court’s recent forays into capital punishment regulation.”

In Get in the Game or Get out of the Way: Fixing the Politics of Death, Professor Adam M. Gershowitz agrees with Professor Smith that “the Court has politicized the death penalty and in doing so inadvertently stymied reform efforts,” but takes a less optimistic view of the Court’s latest jurisprudence, instaed arguing, “If the Court desires to eliminate the arbitrariness of the death penalty, it needs to either take a major step forward or get out of the way so that the political actors can take responsibility.”

Finally, in What’s Wrong with Democracy? A Critique of “The Supreme Court and the Politics of Death”, Professor Paul G. Cassell and District Attorney Joshua K. Marquis take issue with the need for judicial reform, arguing that “[c]apital punishment is a proper punishment in the American criminal justice system, whose popular support should not mark it for judicial undermining, but rather judicial support,” and that “Professor Smith should be more trusting in the outcome of democratic processes.”

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Virginia Law Review 94:5 (September 2008)

VOLUME 94      SEPTEMBER 2008     ISSUE 5

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Virginia Law Review 94:5 (September 2008)

ARTICLE

NOTES

BOOK REVIEW

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Virginia Law Review In Brief

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In Brief, the online companion to the Virginia Law Review, recently published a discussion centered around Professor Melissa Murray’s article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, published in the April 2008 Issue of the Virginia Law Review:

Professor Susan Frelich Appleton’s response, The Networked—Yet Still Hierarchical—Family, considers “what Murray’s call for recognition of caregiving networks might mean, first, for the traditional gender stereotypes that family law once embraced but now professes to reject and, then, for the issues of race and class that family law all too routinely ignores.”

In Rights and Realities, Professor Laura A. Rosenbury supports Professor Murray’s proposals “to the extent that they force reformers and scholars to confront who benefits and who is harmed by legal conceptions of the family, even ones that have been expanded to reflect functional approaches to the family,” but fears “that Murray’s analysis may be held back by an assumption about the appropriate relationship between rights and reality often embraced by family law scholars including, at times, by Murray herself.”

Finally, in Parents as Hubs, Professor Clare Huntington “wholeheartedly agree[s] with Professor Murray that the law should support families in providing care,” and advances the conversation by engaging “with a central aspect of Professor Murray’s argument: the nature of the recognition she argues that the law should provide for nonparental caregivers.” Professor Huntington goes on consider whether recognition should be “simply cognizance of and greater attention to the care provided by nonparents” or “direct legal protection of the relationship between a nonparental caregiver and a family.”

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Virginia Law Review In Brief

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In Brief, the online companion to the Virginia Law Review, recently published a discussion centered around Professor Matthew T. Bodie’s article Information and the Market for Union Representation, published in the March 2008 Issue of the Virginia Law Review:

Professor Catherine Fisk’s response worries that “[w]hile Professor Bodie does an admirable job of explaining why information matters, the process will not be significantly improved if an argument for more information is taken as an argument to protect the status quo of misleading and one-sided information.”

In Rent-to-Own Unionism?, Professor Jeffrey M. Hirsch notes that “Bodie rightly decries the NLRB’s failure to ensure that employees have access to the information needed to make a fully informed decision whether to unionize,” but remains unconvinced “that the gains from a consumer approach to union elections are large enough to warrant the regulatory response it demands.”

In Professor Harry G. Hutchinson’s response, he identifies and addresses three shortcomings in Professor Bodie’s proposal: “First, unions may resist disclosure initiatives unless they are paired with a card-check certification program, which defeats the goal of enabling workers to make rational decisions about union membership. Second, Bodie’s conception of capture focuses on employer capture and ignores the problem of capture by outside interest groups aligned with union hierarchs. Finally, Bodie’s mistaken conclusion that unions secure better conditions for workers leads to a faulty assessment of the problem of free riding.”

To conclude the forum, in The Market for Union Services: Reframing the Debate, Professor Bodie writes “a brief reply to their efforts, in hopes that it is just the beginning of a much more extended conversation about the way we conceive of and regulate union representation.” He focuses on the various policy implications of his proposal suggested by the other authors, specifically the effects of mandatory disclosure, card-check and neutrality agreements, and the idea that more information could lead to less union representation, before once again calling for continued discussion.

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Virginia Law Review 94:1 (March 2008)

VOLUME 94      MARCH 2008     ISSUE 1

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Virginia Law Review 94:1 (March 2008)

ARTICLES

Information and the Market for Union Representation

by Matthew T. Bodie

Overcoming Procedural Boundaries

by Issachar Rosen-Zvi & Talia Fisher

ESSAY

NOTES

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Virginia Law Review, 93:8 (December 2007)

VOLUME 93      DECEMBER 2007      ISSUE 8

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ARTICLES

ESSAYS

A New Model of Administrative Enforcement

by Robert J. Jackson,
Jr. & David Rosenberg

The Case for For-Profit Charities

by Anup Malani &
Eric A. Posner

NOTES

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Virginia Law Review In Brief

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In Brief, the online companion to the Virginia Law Review, recently published the following two essays:

Professor George Cohen’s essay takes an unorthodox position regarding the DOJ’s organizational prosecution policy.

His essay “aim[s] . . . not so much to defend the DOJ policy as to deflate the dominant criticisms and to refocus the debate.” He argues that “[t]he critics [of the Holder, Thomson, and McNulty Memos] seek to lay at the feet of the DOJ policy problems whose primary causes lie elsewhere, in places the critics may be reluctant to have us look.”

Professor Cohen writes further:

“The vehemence of corporate opposition to the government’s waiver policy may be a matter of whose ox is being gored. It is one thing when the corporation on its own wants to finger some low-level employee and label him a “bad egg” acting contrary to company policy so that the corporation can avoid prosecution. It is quite another when internal investigations turn up evidence of misbehavior at the highest levels and diffused throughout the organization. But that is what the recent corporate scandals are all about. The “coercion” that corporations claim to suffer may in fact be the discomfort that upper-level executives feel when they have to choose between waiving the privilege for the good of the company and saving their own necks. If so, then criticism that has been dressed up as a noble stand in defending a venerable privilege against government abuse is in reality just the corporate bar’s age-old attempt to protect upper-level corporate management rather than the entity client that corporate lawyers are supposed to serve. That would not be a surprise. The surprise is that people have been taken in for so long.”

Justin Weinstein-Tull’s case comment examines the Supreme Court’s recent opinion in Gonzales v. Carhart.

In Gonzales v. Carhart (Carhart II), the Court delivered a setback to a woman’s right to choose by affirming the constitutionality of the Partial-Birth Abortion Ban Act of 2003 (“Ban Act”). In doing so, however, the Court enlarged the scope of congressional power. The Court deferred to Congress’s factual findings and allowed Congress to determine for itself that an exception for the health of the mother was unnecessary. This deference, although disheartening in Carhart II, is promising for future civil rights legislation.

In Brief’s next issue, scheduled for publication on August 6, will feature two essays on the subject of the legal response to recent mass catastrophes:

  • Professor Kenneth S. Abraham (U.Va. Law) will publish an essay on the Hurricane Katrina insurance claims.
  • Kenneth R. Feinberg will publish an essay comparing the approaches toward victim compensation that were taken following 9/11 and the Virginia Tech shootings.
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Virginia Law Review In Brief, July 2007

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In Brief, the online companion to the Virginia Law Review, recently published case comments discussing two cases decided this term in the U.S. Supreme Court.

Professor Scott Dodson analyzes the impact of the Court’s opinion in Bell Atlantic Corp. v. Twombly on pleading standards:

“On May 21, 2007, the U.S. Supreme Court decided Bell Atlantic Corp. v. Twombly and gutted the venerable language from Conley v. Gibson that every civil procedure professor and student can recite almost by heart: that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” This Essay explains how Bell Atlantic did so and discusses some of its implications for pleading claims in the future.

* * *

Bell Atlantic is a significant statement from the Court from a proceduralist perspective (even if perhaps unremarkable from an antitrust perspective). The Supreme Court had cited to the “no set of facts” language in Conley twelve times in controlling opinions, and many lower courts had adhered to it and its liberal notice-pleading standard. For example, just a few weeks ago, Judge Easterbrook wrote for the U.S. Court of Appeals for the Seventh Circuit in Vincent v. City Colleges of Chicago: “[A] judicial order dismissing a complaint because the plaintiff did not plead facts has a short half-life. Any decision declaring ‘this complaint is deficient because it does not allege X’ is a candidate for summary reversal, unless X is on the list in Fed. R. Civ. P. 9(b).” The Seventh and other circuits will now have to change their pleading jurisprudence.

The question, though, is what that change will look like.

Andrew George’s case comment examines the effect of Scott v. Harris on reasonable deadly force:

Though the Supreme Court might think otherwise, it has yet to hear a case where a police officer used deadly force to stop a nondangerous fleeing suspect. The Court recently showed its belief to the contrary in Scott v. Harris, where it found that a fleeing suspect posed a sufficient danger to justify the use of deadly force. In order to reach that conclusion, the Scott Court distinguished Tennessee v. Garner, which had held that a police officer could not use deadly force to stop the fleeing suspect. Although the Scott Court never explicitly questioned Garner’s reasoning, the Court’s distinction implicitly demonstrated a fundamental flaw in Garner’s understanding of dangerousness. Scott showed that dangerousness is not confined to a suspect’s potential to commit crimes after escaping; dangerousness is just as great a concern during the escape itself.

In Brief also recently published the following three essays on organizational prosecutions:

Finally, the Virginia Law Review has added an Atom/RSS feed to its In Brief site. Throughout the summer, In Brief continues to publish original content on a biweekly basis. Our next two issues will appear on July 23 and August 6.