Virginia Law Review In Brief

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.
  

Posted by Virginia Law Review at 08:30 AM | Comments (0) | TrackBack

Virginia Law Review In Brief, July 2007

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:

• Professor Brandon Garrett (U.Va. Law): United States v. Goliath
  
• Professor Daniel Richman (Columbia Law): Institutional Competence and Organizational Prosecutions
  
• F. Joseph Warin and Andrew Boutros (Gibson Dunn LLP): Deferred Prosecution Agreements: A View From the Trenches and a Proposal for Reform

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.

Posted by Virginia Law Review at 05:44 PM | Comments (0) | TrackBack

The Lost Promise of Civil Rights

The Lost Promise of Civil Rights. By Risa L. Goluboff. Cambridge, Mass.: Harvard University Press. 2007.

In Brief, the online companion to the Virginia Law Review, today posted a book excerpt from The Lost Promise of Civil Rights, by Virginia Law Professor Risa L. Goluboff.

Professor Goluboff argues that Brown v. Board of Education left “much of Jim Crow . . . unchallenged.” This resulted from “lawyers’ strategic litigation choices about which cases to pursue and which to avoid, which harms to emphasize and which to ignore, which constituencies to address and which to disregard.” Professor Goluboff thus “suggests that by uncovering historical alternatives to the civil rights law we know as our own, we can broaden our imagination about the possibilities for addressing the remnants of Jim Crow still facing the nation today.”

The book, published recently by Harvard University Press, has already received significant acclaim. Harvard Law Professor Mark Tushnet writes that The Lost Promise of Civil Rights “offers readers a brilliant reconceptualization of civil rights litigation.” Penn History Professor Thomas Sugrue calls the book “original, provocative, and persuasive.”

Professor Goluboff’s book will also be the subject of a Book Review by NYU Professor Derrick Bell in Volume 94 of the Virginia Law Review. The Book Review is scheduled to run in March 2008.

The excerpt is available on the In Brief site. [PDF]

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Announcing the Law Review Forum Project

I am very pleased to announce a new project here at Concurring Opinions – the Law Review Forum Project. We will be hosting online forums for several law reviews. Increasingly, law reviews are creating online forums as companions to their regular law review issues. These forums contain very short response pieces, essays, debates, and other works that attempt to bridge the gap between regular legal scholarship and the blogosphere.

Journals seeking to create their own online forum face two daunting challenges. First, they must create and actively maintain a web presence. Second, they must find ways to attract readers, which is difficult in an age where so many blogs and other websites exist. A wide readership for a website depends upon having daily content. Law review forums produce content sporadically throughout the year at intervals that are not regular enough to attract a significant readership.

Therefore, we have invited a number of law reviews to participate in a partnership with our blog. Throughout the year, each law review will periodically post forum essays here at Concurring Opinions. We are not requiring an exclusive license, so participating law reviews can also cross-post at their own websites.

We see this as a mutually-beneficial arrangement. We can bring great content to our blog, and law reviews can reach our significant audience without the pressures of having to build and maintain an online readership or of having to produce content with regularity.

Law reviews currently with and without existing forums will be participating. Thus far, the following law reviews have agreed to participate:

* Harvard Law Review
* Virginia Law Review
* Michigan Law Review
* University of Pennsylvania Law Review
* Northwestern Law Review
* UCLA Law Review
* George Washington Law Review

In the near future, we hope to be expanding the list of participating law reviews.

Posted by Daniel J. Solove at 01:04 AM | Comments (4) | TrackBack