Apr 02

Allen Chair Issue 2015: Lethal Injection, Politics, and the Future of the Death Penalty

The University of Richmond Law Review had a very successful Allen Chair Symposium this academic year, titled, “Lethal Injection, Politics, and the Future of the Death Penalty.” The Symposium featured a keynote address from Professor Stephen B. Bright, President and Senior Counsel for the Southern Center for Human Rights and professor at the Yale School of Law, as well as incredible panels comprised of nationally renowned death penalty scholars, practitioners, doctors, politicians, and journalists. Through the subsequent months of hard work, the Law Review proudly presents the corresponding Allen Chair Issue. This, Volume 49’s third issue, is sure to be a great source for all things related to this controversial and important topic. We encourage all to read these articles and allow them to shed some unique light on the issue of the death penalty in American society and jurisprudence.

Professor Stephen Bright was our keynote speaker at the Allen Chair Symposium. His thought-provoking piece, largely developed from his address, is titled, “The Role of Race, Poverty, Intellectual Disability, and Mental Illness in the Decline of the Death Penalty.” Its citation is 49 U. Rich. L. Rev. 671 (2015), and is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Bright-493.pdf

Students Sheherezade Malik (Executive Editor, Volume 49) and Paul Holdsworth (Editor-in-Chief, Volume 49) then lay a foundation for the rest of the pieces of the Allen Chair Issue with “A Survey of the History of the Death Penalty in the United States.” This contribution’s citation is 49 U. Rich. L. Rev. 693 (2015), and is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/History-493.pdf

THE DEATH PENALTY AND LETHAL INJECTION

Doctor Joel Zivot of the Emory School of Medicine & Emory University Hospital provides an unprecedented analysis of lethal injection from the medical perspective. His contributions to the panel were incredibly insightful, and this piece is sure to be a “game-changer” in legal academia as well. His contribution is titled, “Lethal Injection: States Medicalize Execution.” Its citation is 49 U. Rich. L. Rev. 711 (2015), and is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Zivot-493.pdf

Professor Eric Berger then offers a compelling reflection on states’ execution procedures and their possible constitutional implications titled, “The Executioners’ Dilemmas.” Its citation is 49 U. Rich. L. Rev. 731 (2015), and it is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Berger-493.pdf

Distinguished Richmond journalist Frank Green sheds his expertise and reflections on having covered Virginia executions since 1982. His contribution is titled, “Witnessing Executions.” Its citation is 49 U. Rich. L. Rev. 763 (2015), and is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Green-493.pdf

Second-year law student, and Editor-in-Chief-elect, Thomas DiStanislao offers a compelling proposal for Virginia to return to the firing squad in lieu of the recent complications with lethal injection. His comment is titled, “A Shot in the Dark: Why Virginia Should Adopt the Firing Squad as Its Primary Method of Execution.” Its citation is 49 U. Rich. L. Rev. 779 (2015), and is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/DiStanislao-493.pdf

THE SHIFTING POLITICS OF THE DEATH PENALTY

Former Attorney General Mark Earley shifts the Issue’s focus to political and policy analysis. His contribution, titled, “A Pink Cadillac, An IQ of 63, and a Fourteen-Year-Old From South Carolina: Why I Can No Longer Support the Death Penalty” is an interesting reflection about how Mr. Earley’s views and opinions of the death penalty have evolved throughout and following his political career. It can be cited at 49 U. Rich. L. Rev. 811 (2015) and is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Earley-493.pdf

Professor Corinna Lain, without whose generosity and ideas the Allen Chair Symposium and Issue would not have been possible, offers a piece that highlights and analyzes 2014’s string of botched executions, and their various legal and societal implications. Her contribution is titled, “The Politics of Botched Executions.” The piece’s citation is 49 U. Rich. L. Rev. 825 (2015), and is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Lain-493.pdf

Following Professor Lain’s piece, Notre Dame law professor Stephen Smith, urges caution in declaring that the demise of the death penalty has been realized. While many recent developments have certainly called into question the future of America’s death penalty, there is much more to do. Professor Smith’s piece is titled, “Has the ‘Machinery of Death’ Become a Clunker?” Its citation is 49 U. Rich. L. Rev. 845 (2015), and is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Smith-493.pdf

THE FUTURE OF THE DEATH PENALTY

Richmond Law’s esteemed professor and former Dean, John G. Douglass, shifts the Issue’s focus to the future of the death penalty. Professor Douglass’ contribution tackles the issue of plea bargaining in Virginia death penalty cases. His essay is titled, “Death As a Bargaining Chip: Plea Bargaining and the Future of Virginia’s Death Penalty.” It can be cited at 49 U. Rich. L. Rev. 873 (2015), and is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Douglass-493.pdf

Professor Brandon Garrett, from the University of Virginia School of Law, then offers his contribution by analyzing interrogation policies in the Commonwealth of Virginia and proposing that such policies are in need of a major overhaul. Professor Garret’s piece, “Interrogation Policies” can be cited at 49 U. Rich. L. Rev. 895 (2015), and is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Garrett-493.pdf

Next, Richard Dieter, the Executive Director of the Death Penalty Information Center, discusses the trajectory of the death penalty in the United States. His piece, appropriately titled, “The Future of the Death Penalty in the United States” can be cited at 49 U. Rich. L. Rev. 921 (2015), and is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Dieter-493.pdf

Professor Mary Tate, the Director of the University of Richmond School of Law’s Institute for Actual Innocence, reflects on the inherent arbitrariness of doctrinal developments, public policy, and societal mood in death penalty outcomes. Professor Tate does so through reexamining the case of Tommy David Strickler, an indigent Virginia man executed in 1999. Her piece is titled, “Temporal Abritrariness: A Back to the Future Look at a Twenty-Five-Year-Old Death Penalty Trial.” Its citation is 49 U. Rich. L. Rev.  939 (2015), and is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Tate-493.pdf

Student Ann Reid, the Law Review’s Lead Articles Editor-elect, rounds out the Allen Chair 2015 Issue with an innovative proposal of narrowing capital eligibility in the aftermath of 2014’s botched execution and the controversial atmosphere surrounding death penalty sentiment. Her comment, “Making Sure We Are Getting It Right: Repairing ‘The Machinery of Death’ by Narrowing Capital Eligibility” can be cited at 49 U. Rich. L. Rev. 967 (2015). It is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Reid-493.pdf

POSTSCRIPT

In a unique postscript, Leah Stiegler, the Allen Chair Editor for Volume 49, interviewed an inmate on death row in California. This brief exchange serves to provides readers with a glimpse into one death row inmate’s views on the death penalty, lethal injection, and the criminal justice system. It is available at http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Cruz-Update.pdf

ACKNOWLEDGMENTS

Please also read the Acknowledgments from Leah Stiegler, the Allen Chair Editor: http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Ack.pdf

Nov 06

2014 Allen Chair Symposium: Lethal Injection, Politics, and the Future of the Death Penalty

Allen Chair Symposium Video – Part 1:

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ALLEN CHAIR: Overview

Dean William T. Muse founded the University of Richmond Law Notes - the first scholarly legal journal published at the University of Richmond School of Law – in 1958.  Initially, the faculty and administration managed the Law Notes, but with the publication of Volume 3 in May 1968, the publication became a completely student run organization and was rechristened as the University of Richmond Law Review.  Since then, due to the dedication of its members, the Law Review has realized enormous success.  With the publication of Volume 49 of the Law Review, we all share a sense of pride in the history of the journal and acknowledge the support of the law school administration, faculty, and staff in establishing and maintaining this publication.

The Allen family established the George E. Allen Chair in 1976, signifying their devotion to the continued success of the law school.  Through that generous support, the Allen Chair has hosted symposia and published Allen Chair issues for the past twenty years.  We look forward to the publication of the Allen Chair issue focused on Lethal Injection, Politics, and the Future of the Death Penalty.

 

Be on the lookout for our 2015 Spring Issue!

The issue will feature essays by the 2014 Allen Chair Symposium panelists!

Mar 06

Comment: Lighting a Fire Under Free Speech: the FDA’s Graphic Attempts to Reduce Smoking Rates

Ashley Peterson

More than forty-three million adult Americans are cigarette smokers. Cigarette smoking accounts for 400,000 deaths annually—more than AIDS, alcohol, cocaine, heroin, homicide, suicide, motor vehicle crashes, and fires combined—making cigarettes the leading preventable cause of death in the United States. Tomorrow, approximately 4,000 children under the age of eighteen will experiment with cigarettes for the first time and another 1,500 will become regular smokers. Of those that smoke regularly, about half will eventually die from tobacco use. Tobacco-related illnesses in the United States alone cost approximately $193 billion each year in lost productivity and health care expenditures. These sobering statistics have encouraged public health officials and lawmakers to take drastic action designed to encourage smokers to quit and to prevent young adults from ever lighting up. The Family Smoking Prevention and Tobacco Control Act (“FSPTCA” or “the Act”) and its implementing regulations promote the government’s anti-smoking agenda—at the expense of tobacco companies’ constitutionally protected free speech.

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Mar 06

Reclaim This! Getting Credit Seller Rights in Bankruptcy Right

Lawrence Ponoroff

The oxymoronically titled Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA” or “2005 amendments”) has received considerable attention since its passage, and considerably less than all of it is positive. By even a neutral account, the bill is clumsily drafted, unnecessarily prolix, internally inconsistent, and annealed in a cauldron of special interest pressures. The legislative history is scant and what does exist is less than altogether clear or helpful. Together, these factors have frequently rendered the traditional judicial function in application of the law; namely, ascertaining (or at least beginning by ascertaining) congressional intent, an exercise in futility. To say the least, it is difficult to discern that which, in all likelihood, does not and has never existed in a uniform or coherent fashion.

Nonetheless, since enactment of BAPCPA, courts have labored gamely to make sense of its provisions, which, in any number of instances, are inscrutably obscure, and seem to lack any inherently clear reason. Thoughtful commentators have undertaken to offer useful insight and analysis to help guide that effort. Overall, however, these efforts have fallen, and will continue to fall, short in relation to any number of provisions of BAPCPA. This is because they entail a stoic and estimable, but ultimately vain, attempt to interpret statutory text that is, in some instances, impenetrably vague or simply incomplete, or, in other instances, confounds essential bankruptcy policy. A coherent and intelligible expression of legislative intent that might have shed some light in the process is nowhere to be found.  Although the competition is unquestionably stiff, in perhaps no substantive area of the field have these observations been truer than in the efforts to deconstruct and rationally apply the changes BAPCPA wrought on an area of commercial law and practice that was already embroiled in confusion and controversy; namely, sellers’ right of reclamation.

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Mar 06

Synthetic CDOs, Conflicts of Interest, and Securities Fraud

Jennifer O’Hare

Following the financial crisis, the synthetic collateralized debt obligation (“CDO”)—a complex derivative that received little mainstream attention prior to the housing meltdown—became big news. Journalists wrote numerous articles explaining how synthetic CDOs spread the contagion of toxic assets throughout the financial system, nearly bringing down the global economy. Government hearings exposed the ugly conflicts of interest inherent in the structuring of synthetic CDOs, as big investment banks created, sold, and invested in synthetic CDOs and often bet against their clients. Some of the world’s largest financial institutions, who faced bankruptcy when their investments lost value, bitterly complained that these synthetic CDOs had been “designed to fail” so that the investment banks could profit at their expense. Greedy investment banks were seen as the problem, not the synthetic CDOs themselves.

As a result, the Securities and Exchange Commission (“SEC”) sued several of the highest profile investment banks for fraud, and some investors in synthetic CDOs brought their own private actions for fraud against the investment banks. Calls for increased regulation of synthetic CDOs resulted in legislation prohibiting investment banks from engaging in certain conflicts of interest in the sale of synthetic CDOs.

This article shows that focusing primarily on the misconduct by investment banks or on the corresponding harm suffered by investors has caused regulators to miss the real issue: the sale of the synthetic CDO. Outrage over the extraordinary greed and sometimes outrageous misconduct by investment banks in the sale of synthetic CDOs is understandable. However, it was not the bad behavior of the investment banks that furthered the financial crisis; it was the use of the synthetic CDO itself. Because the regulators focused on the wrong problem, the dangers caused by synthetic CDOs still exist and must be addressed through additional regulation.

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Mar 06

The Copyright/Patent Boundary

Viva R. Moffat

In passing the Copyright Act in 1976, Congress provided that “pictorial, graphic, and sculptural works” were to be protected, but at the same time made clear that works of industrial design, as opposed to works of applied art, were not to be protected by copyright law. Put simply, “useful articles” are not copyrightable. This is so because useful things belong in the patent realm, if they are to receive protection at all. Seemingly straightforward, this distinction—between applied art and industrial design, between copyright law and patent law—has long perplexed policymakers, courts, and academics.

While the law and the language, as shall be seen, can be jargon-filled and obscure, at issue is a straightforward and real-world concern: whether and to what extent items like bicycle racks, smartphones, belt buckles, mannequins, and all manner of everyday products ought to be protected by some kind of exclusive right. Put another way, the question is whether copyright provides the proper form of protection for items of industrial design.

This article concludes emphatically that, while some kind of protection—that is, some kind of restriction on copying, be it design patent, trade dress, or a sui generis form of protection—may be appropriate, copyright law is not the right approach. More specifically, “not copyright” for industrial design is sufficiently important that a bright-line rule excluding industrial design from copyright, in contrast to the nuanced standards currently employed, should be adopted.

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Mar 06

High-Frequency Trading: A Regulatory Strategy

Charles R. Korsmo

The events of May 6, 2010 took high-frequency trading from the edges of public consciousness to being front page news. American stock markets had opened that morning to unsettling rumblings from Europe. The previous day had seen violent protests in Greece against proposed austerity measures designed to avert a default on Greek government debt. The ongoing riots seemed likely to scupper a proposed European Union bailout of Greece, potentially touching off a chain-reaction debt crisis with disastrous consequences for the entire euro zone. Given these inauspicious augurs, it is hardly surprising that investor sentiment was somewhat jumpy and decidedly gloomy for much of the day. Over the course of the morning, prices slid in increasingly volatile trading. By 1:00 p.m., the Standard & Poor’s 500 (“S&P 500”), a well-known index of stock prices for 500 top American companies, had fallen by about 1%—a significant drop, to be sure, but not yet particularly alarming.

Around 1:00 p.m., the dollar value of the Euro started to decline precipitously, and the sell-off in the broader market began to accelerate. The volatility of stock prices increased sharply, triggering automatic slowdowns in trading for numerous stocks traded on the New York Stock Exchange (“NYSE”). By 2:00 p.m., the S&P 500 had fallen a total of 2.9% for the day. Such a large drop is unusual, and undoubtedly cause for consternation, but was nowhere near as severe as the multiple 5%+ daily swings seen at the height of the 2008 financial crisis. Few would have guessed that the stage was now set for the most extraordinary hour in the history of the American stock market.

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Mar 06

The Purpose of the Fourth Amendment and Crafting Rules to Implement that Purpose

Thomas K. Clancy

What is the purpose of the Fourth Amendment?  How should rules – legal principles – be crafted to implement that purpose?  This article addresses those questions. Nothing is more fundamental to the development of Fourth Amendment principles than the answers to those questions.  Given the wide applicability of the Fourth Amendment to the countless intrusions by the government in daily life, how the Fourth Amendment is to be construed is itself of fundamental concern to all Americans.  It is the foundation upon which other freedoms rest.

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Nov 08

Family Law

Sharon K. Lieblich

That the Court of Appeals of Virginia has reached its maturity is evident from the court’s recent decisions, which rarely break significant new ground. The last two years have seen the court mainly applying established principles in new contexts, and the most interesting cases tend to be the ones whose unusual facts make them stand out. Consider, for example, L.F. v. Breit, in which a mother who had acknowledged the paternity of the biological father of her child argued—unsuccessfully—that because they had used in vitro fertilization the father had no parental rights. At the other end of the spectrum are the many cases that do not even reach the merits because of some procedural failing on the part of the appealing party, such as not preserving the issue for appeal2 or failing to include the issue in the opening brief.

The General Assembly and court of appeals have attempted to dig out of the hole created by the decision in Hoy v. Hoy by amending Virginia Code section 20-113 to give Virginia courts the authority to enter a qualified domestic relations order (“QDRO”) or other order enforcing a support order and attaching any pension, profit-sharing, or deferred compensation plan as permitted by the Internal Revenue Code or other federal law. But there seems to be no escape from the rule that the designation of a beneficiary of federal life insurance prevails over all legislative efforts to require the beneficiary to convey the proceeds to the widow of the deceased.

The court of appeals continues to issue mostly unpublished decisions, many of which seem appropriate for publication. Sometimes an unpublished decision will address a legal issue of first impression, and even if the facts are quite unusual,it seems unduly reticent of the court not to publish the case.

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Lieblich 481

Nov 08

Nonsuit in Virginia Civil Trials

Richard G. Moore

The voluntary nonsuit is a potent weapon in the arsenal of a Virginia litigant, primarily the plaintiff, and it has been recognized by common law and statute for hundreds of years. Nevertheless, the Virginia nonsuit statute has long been controversial and the subject of sharp debate. While it has been modified through the imposition of several conditions to give some degree of balance to the exercise of an otherwise unfettered right to non-suit, it is still in need of revamping. This article discusses the reasons why nonsuit, in its present form, despite prior statutory amendments, has become an insupportable anachronism and unduly burdensome to both defendants and the judicial system. I hope that this article will stimulate discussion, and provide an impetus for the Virginia General Assembly to correct the inefficiencies and inequities plaguing the current nonsuit procedures.

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Moore 481

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