COMMENT: Innocent Suffering: The Unavailability of Post-Conviction Relief in Virginia Courts

In 1984 in Richmond, Virginia, Thomas Haynesworth was convicted of raping two women and indicted for raping three others. The first rape occurred on January 3, 1984. The assailant attacked his victim at her place of employment, threatened her with a knife, and raped her. On January 21, another woman was sodomized and robbed at knife point in Richmond. On January 30, a man pointed a gun at a woman and forced her into a secluded wood. The man forced the woman to orally sodomize him. He also unsuccessfully attempted to rape her. While committing these crimes, the gunman told the woman this was not his first time, but he usually used a knife rather than a gun. On February 1, a gunman confronted a woman in front of her Richmond home, and forced her back inside.

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Some Thoughts Raised by Magna Carta: The Popular Re-Election of Judges

W. Hamilton Bryson

I take as my text and begin with Chapter 29 of the final version of Magna Carta of 1225, which reads as follows:

No free man shall be taken or imprisoned or disseised of any freehold or of liberties or free customs . . . except by the lawful judgment . . . of his peers or by the law of the land . . . to no one shall we sell, to no one deny or delay right or justice.

This is said to be one of only three parts of the Great Charter still in force in Great Britain. But this is rightly so, for it is the heart and soul of the statute.

This text ensures that a person’s property, body, and reputation will not be taken away before and without a trial in a court of law in which the judge observes the law and the due process thereof. This requires hearing the evidence and the arguments of all of the parties, after which, the judge applies the law to the facts of a case in order to reach a decision.

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Virginia Executioner to Wear a Cloak: Diversion from the Real Controversy

Paul G. Gill

Recent amendments to Virginia law made confidential and exempt from the Freedom of Information Act identifying information for those who contract with the Commonwealth to compound drugs necessary to carry out an execution by lethal injection. The amendments were not without controversy. But debating whether to identify or cloak those who help an execution take place deflects attention from the real legislative question about capital punishment: Does it have benefits which outweigh its costs, financial and otherwise? This article briefly explores that question, suggesting that if execution is examined by evidence-based standards we otherwise commonly apply to sentencing, the answer is clear.

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Why the World Should Act Like Children: Using the Building Blocks Method to Combat Climate Change, Beginning with Methane

Eileen Waters

In 2013 the Intergovernmental Panel on Climate Change (“IPCC”) released an assessment report which stated the “warming of the climate system is unequivocal.” This certainty reflects years of data showing the global average surface temperature has been steadily increasing, and the past decade has been the warmest on record. This rise in temperature has been linked to a myriad of catastrophic current and future events that will negatively affect the world we live in. Just a few of these impacts, recognized by the IPCC, are: the dropping of agricultural yields, the spreading of diseases, the displacement of people living on coastlines, and the increase of weather related disasters.

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Through the Lens of Complex Systems Theory: Why Regulators Must Understand the Economy and Society as a Complex System

James Giudice*

Complex systems are constantly creating unpredictable phenomena that change and shape the world around us. These systems are comprised of relatively simple components whose interactions, controlled by no central authority, are guided by simple rules that give rise to complex behavior patterns and adaptation. Historically, scientists used reductionism as the primary means of understanding complex problems. This method attempts to make sense of the whole by dividing it into its smallest components, studying them from simplest to most complex, and putting them back together until the complete picture is seen.

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The Constitutional Limits of Client-Centered Decision Making

Todd A. Berger *

Some years ago in a courtroom in Philadelphia, I found myself in a rather troubling predicament. My client threatened to stab me with a pen. I was his defense attorney. My client had been charged with a gunpoint robbery. He was picked out of a random photo array by the complainant a few days after the incident occurred. If we lost the trial, he was going to receive a sentence of at least ten to twenty years in prison.

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Truth or Doubt? An Empirical Test of Criminal Jury Instructions

Michael D. Cicchini *

Lawrence T. White **

The Constitution protects a criminal defendant from conviction unless the government can prove guilt beyond a reasonable doubt. However, the Constitution does not require that trial courts use any particular set of words when defining reasonable doubt for the jury. Instead, a broad range of jury instructions have been deemed constitutionally acceptable, provided they do not diminish or dilute the government‘s high burden of proof.

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Clarence Thomas, Fisher v. University of Texas, and the Future of Affirmative Action in Higher Education

Scott D. Gerber *

I was flattered to be invited to participate in a February 21, 2014, symposium at the University of Chicago Law School sponsored by the Midwest Black Law Students Association about “Affirmative Action: Past, Present & Future.” The organizers said that they invited me because they thought I would say something different from my colleagues at the event. They were correct. After all, academia is dominated by the Left, and racial preferences are the sacred cow of the Left, whereas I am a libertarian who sincerely believes that racial preferences are unconstitutional. More importantly, Clarence Thomas thinks they are unconstitutional, and he is coming closer with each passing Term to convincing a majority of his colleagues on the U.S. Supreme Court of this fact.

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Causation in Whistleblowing Claims

Nancy M. Modesitt *

Whistleblowing cases have continued to increase in number in recent years as state and federal legislatures have added protections for employees who disclose illegal or wrongful activity by their employers.1 But even as the number of cases continues to climb, cohesive and coherent doctrines applicable in whistleblowing litigation have failed to emerge. A significant reason for this is that much of whistleblower protection is statutory in nature, and federal statutes vary greatly from state statutes, even as state statutes differ. A second reason is that courts have drawn upon doctrines developed under Title VII of the Civil Rights Act of 1964 in deciding whistleblowing cases, and Supreme Court decisions as well as statutory amendments have frequently altered legal standards in these cases. And a third reason is that there are overlapping common law and statutory protections, which result in the potential for different whistleblowing doctrines to develop, even within a single state.

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